Discussion Paper - Law Reform Commission of Western Australia

5.25 One well known but ultimately unsuccessful GLO litigation is colloquially
referred to as the ‘McDonalds Hot Drinks litigation’. 48 In that case, a number of
parties brought claims for personal injuries caused by the spillage of hot drinks (in
two cases hot water) served by McDonalds. The court was satisfied that common
features between the claims justified the issue of a GLO on 21 February 2001. 49 At
the time of the trial of the preliminary issues the group comprised 36 claimants,
the majority of whom were children. Though many of the claimants suffered
serious injury, the GLO failed as none of the generic preliminary issues relating to
McDonalds’ negligence or breach of the Consumer Protection Act 1987 were made
out. 50
5.26 Among the 75 GLOs that are currently being managed in English courts,
many relate to claims of alleged maltreatment or abuse of children in care. 51 A large
number of the claims in these cases have been settled before or during trial. 52 One
case that illustrates the limitations of the GLO procedure is T (formerly H) v Nugent
Care Society (formerly Catholic Social Services). 53 In this case, Mr Taylor sought to
join a GLO known as the North-West Child Abuse Cases after the cut-off date that
had been specified. He was not permitted to join the existing GLO. Subsequently,
the defendant successfully had Mr Taylor’s individual claim struck out as an abuse
of the court’s process. 54 The Court of Appeal overturned this decision holding that
such claims could be initiated but should be stayed (even though they do not form
part of the group action) until completion of the group action. 55 In other words,
although a claimant need not join a GLO (whether through a failure to register
before a cut-off date or due to other limitations), the claimant will not be entitled to
redress until after the court has dealt with the larger group claims.
5.27 While this decision might be explained in light of the need to promote
efficiency in the litigation process and the use of court resources, it is difficult to
reconcile with access to justice principles.
Alternative avenues of class actions to be brought
Representative actions
5.28 Claims can also be pursued in a representative proceeding where one
representative claimant or defendant acts on behalf of a class of legal persons having
the ‘same interest’ in a single claim. 56
5.29 As with the Australian experience, the limitations of representative
proceedings mean that the procedure is rarely used. Members of the class must share
an interest in the claim and cannot have different defences or seek different remedies.
Furthermore, English courts have been unwilling to extend the procedure to allow
for proceedings to be pursued on behalf of persons who cannot be identified before
judgment. 57 A judgment or order given in a representative claim will be binding on
48. B (A Child) v McDonald’s Restaurants Ltd [2002] EWHC 490 (QB). See Her Majesty’s Court Service, ‘Group Litigation Orders’ .
49. Ibid [1].
50. Ibid [81].
51. See above n 39.
52. One Crown Office Row, ‘Child Abuse Compensation Law’ .
53. [2004] 1 WLR 1129.
54. Ibid 1130.
55. Ibid 1135.
56. Civil Procedure Rules 1998 r 19.6.
57. See Emerald Supplies Ltd v British Airways plc [2009] EWHC 741 (Ch).
Chapter 5: Overseas Models 65