Joinder of Parties and Group Litigation

Abstract

This chapter in the forthcoming book, COMPARATIVE CIVIL PROCEDURE (Remco Van Rhee and Margaret Y.K. Woo, eds., Elgar Press 2024), addresses the joinder of parties and group litigation in common law and continental civil law countries. The chapter begins with a glossary of terms relating to group litigation, followed by a discussion of the objectives of group litigation, including public and private enforcement, access to justice, judicial economy, and behavior modification and deterrence. The chapter surveys theories and policies of group joinder and collective litigation in common law countries and across the European continent. The chapter turns to in-depth descriptions of group litigation in the United States and other common law jurisdictions including Canada, Australia, and the U.K., with a focus on the American class action rule. This discussion addresses the role of attorneys and attorney fees, the role of judicial officers, litigation and settlement classes, standing, certification of class actions, categories of class litigation, financing, due process requirements, applicable law, settlement, fairness hearings remedies, notice requirements, and the allocation and distribution of class proceeds. In addition, the chapter discusses non-class joinder procedures, such as the American multidistrict litigation procedure, and non-class settlements. The latter portion of the chapter turns attention to parallel developments in the European Union, with a focus on the EU 2013 Recommendations for Collective Redress, the 2018 Implementation Report, and the EU 2020 Representative Actions Directive. Like the analysis of the common law procedural means for achieving group litigation, these sections on European Union developments address the same concerns discussed previously. In addition, the continental discussions comment on due process requirements, the continental preferences for opt-in or opt-out procedures, collective settlements, cross border disputes, and funding and financing. Throughout the chapter the authors cite to leading legislative enactments and decisional case law supporting the concepts relating to joinder of parties and group litigation.

Keywords: Joinder, joinder of parties, group litigation, collective redress, class actions, multidistrict litigation, simple joinder, public enforcement, private enforcement, EU 2013 Recommendations for Collective Redress, EU 2018 Implementation Report, EU 2020 Representative Actions Directive