Contratto ImpresaEuropa - Cedam

634 CONTRATTO E IMPRESA / EUROPA
scope of this doctrine ( 75 ). In Gleeson vs. J Wippell & Co. Ltd, Megarry V-C
stated that:
I do not say that one [party] must be the alter ego of the other: but it does seem to me
that, having due regard to the subject matter of the dispute, there must be a sufficient
degree of identification between the two to make it just to hold that the decision to
which one was party should be binding in proceedings to which the other is party. It is
in that sense that I would regard the phrase ‘privity of interest’ ( 76).
In House of Spring Garden vs. Waite ( 77 ), the court applied the privity of
interest doctrine in the context of the liability of joint tortfeasors. In the
case of a US class action, the US court would not certify the class unless
the interests of the various claimants were sufficiently similar as to merit
such class action and give rise to a number of common questions of fact
and law. It is possible that an English court would conclude that the interests
of claimants in a US class action are not sufficiently different from
the House of Spring Garden scenario and, accordingly, that the absent
claimants should be bound on this basis.
Barnett ( 78 ) comments that “The trend in the common law world has
been that all members of the class whom a party purports to represent
will be deemed parties and thus bound by an order of the court, provided
that the representative party has acted bona fides in the interests of the
class” ( 79 ).
He goes on to suggest that the English courts might additionally require
that:
(i) the claimant in the subsequent proceedings had notice of the foreign class action
and had the chance to withdraw or object; and (ii) the foreign court, acting under an
obligation to protect absent class members, held a hearing, considered the evidence
and made a ruling as to membership.
If the interests of the absent class members are fairly and properly represented
by members of the class participating in the US proceedings, it
( 75 ) See Carl Zeiss Stiftung vs. Rayner & Keeler Ltd and Others (No 2) [1967] 1 AC 853;
Gleeson vs. J Wippell & Co. Ltd [1977] 1 WLR 510; House of Spring Garden vs. Waite [1990] 1
QB 241.
( 76 ) [1977] 1 WLR 510, at p. 516.
( 77 ) [1990] 1 QB 241.
( 78 ) Barnett, Res Judicata, Estoppel, and Foreign Judgments (2001), at p. 73.
( 79 ) Citing Wytcherley vs. Andrews (1871) LR 2 P&D 327; Cox vs. Dublin City Distillery Co
(No 3) [1917] 1 IR 203; Naken vs. General Motors of Canada Ltd (1983) 144 DLR (3d) 385;
and Carnie vs. Esanda Finance Corp (1995) 183 CLR 398, 423-4 (High Court of Australia).