Discussion Paper - Law Reform Commission of Western Australia

Consistency with the overriding objective of the Civil Procedure Rules
Opt-in group litigation procedure
Binding judgment
Costs
5.16 The stated objective of the Civil Procedure Rules is to enable the court ‘to
deal with cases justly’. 24 As Part 19.III is part of the rules it must comply with this
requirement.
5.17 A GLO procedure is an opt-in multiple claims procedure in the sense that
parties must elect to become part of the group litigation. Once a GLO is issued, a
judge will be appointed to manage the GLO and the court will order that a register
be established to record the claims that are subject to the GLO. 25 Both the Civil
Procedure Rules and Practice Directions provide for the publication of the GLO but
do not specify the appropriate form of publication or the party liable for publication
costs. 26 However, any notice or publication will ordinarily include a cut-off date by
which time claimants are required to join the group. Individual claimants must then
issue their own claim form in order for their claim to be entered on the register. 27
The potential adverse impact of such a requirement has been tempered by the way
in which it has been interpreted. Lord Woolf has held that ‘[i]n the context of a
GLO, a claim form need be no more than the simplest of documents’. 28
5.18 Unlike actions in some other jurisdictions, the claims that make up the group
litigation remain ‘individual actions managed collectively’. 29 Therefore, the outcome
of one case does not definitively determine liability in other claims. However, a
judgment made on one or more of the GLO issues will be binding on the parties to
all other claims that are on the group register at the time the judgment is given or
the order is made unless a court orders otherwise. 30
5.19 The assessment of costs is a matter for the court’s discretion. As in Australia,
the general rule is that the unsuccessful party bears the costs of the successful
party. 31
5.20 In addition, Rule 48.6A of the Civil Procedure Rules provides a framework for
sharing costs between claims entered on the GLO group register. Each litigant must
bear the costs of their individual claim. 32 In addition, and unless the court makes
an alternative order, any order for common costs against group litigants imposes on
each group litigant several liability for an equal proportion of the common costs. 33
‘Common costs’ are defined to include costs incurred in relation to the GLO issues,
individual costs incurred in a claim while it is proceeding as a test claim, and the
24. Civil Procedure Rules 1998 (English) r 1.1(1).
25. PD 19B [8], [6.1].
26. Civil Procedure Rules 1998 (English) r 19.11(3)(c); PD 19B [11].
27. PD 19B [6.1A].
28. Boake Allen Limited v Revenue and Customs Commissioners [2007] HL 25, [33]. See also Europcar English Ltd v Revenue and Customs
Commissioners [2008] EWHC 1363 (Ch).
29. Brown A & Dodds-Smith I, Class and Group Actions: English (International Comparative Legal Guide Series, 2013).
30. Civil Procedure Rules 1998 (English) r 19.12(1)(a).
31. Brown A & Dodds-Smith I, Class and Group Actions: English (International Comparative Legal Guide Series, 2013).
32. Civil Procedure Rules 1998 r 48.6A(2)(a). It is noted that in certain circumstances the costs associated with bringing lead actions or test cases
may be considered generic costs in the sense that they raise issues common to many claims.
33. Civil Procedure Rules 1998 (English) r 48.6A(3).
Chapter 5: Overseas Models 63