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DIBATTITI 641
heron observes that: « Thus, the Independiente and Howells decisions affirm
that silence cannot be taken to infer disagreement with the representative
action instituted. This is precisely the same situation as occurs in
class action regimes elsewhere » ( 102).
Mulheron concludes with the following observations:
Various judicial statements have sought to interpret the English representative rule as
containing elements of a class action, a wider device than the strict representative action,
under which a commonality, rather than identicality, of interest is sufficient, and
where separate contracts, separate defences and different claims for damages are easily
tolerated. It is highly arguable that the less restrictive class action criteria which the
English judiciary have struggled to fit over the rubric of the representative action
should be expressly implemented in this jurisdiction. This would serve to lessen the
artificiality of judicial interpretations which strain the boundaries of the language used
in r.19.6. Secondly, it is not a huge leap from the representative rule, as judicially interpreted,
to the class action as legislatively drafted. Somewhat similar superiority assessments,
numerosity tests, attitudes toward class description and members' identities,
adequacy of representation, recognition of sub-classes, and the absence of any requirement
for an express mandate from class members, are evident under both representative
rule and class action ( 103).
In relation to the Group Litigation Order ( 104 ), Mulheron comments
elsewhere that:
All multi-party litigation schemas seek to achieve various economies of scale for their
participants. The GLO is no different in that regard. To decry a structured class action
regime such as that which exists in the US because it allegedly increases the rate of litigation
both ignores the potential for GLOs to do exactly the same; and undermines
the aim of ensuring greater access to justice which both schemas seek to provide ( 105).
Even if English law stops short of introducing a class action ( 106 ), the
( 102 ) (2005) 24 Civil Justice Quarterly 424, 442.
( 103 ) Ibid, at p. 448. See further Mulheron, The Class Action in Common Law Legal Systems:
a Comparative Perspective, pp. 78-90; 111. Mulheron observes (ibid, p. 94) that « The
statutory embodiment of a class action in England would (if it occurred) simply reflect judicial
developments that have already occurred, sporadically, within the English jurisdiction
to combat the restrictions of Markt ».
( 104 ) See also Davies (Joseph Owen) vs. Eli Lilly & Co [1987] 1 WLR 1136 (CA), at p. 1139.
( 105 ) Mulheron, The Class Action in Common Law Legal Systems: a Comparative Perspective,
p. 75.
( 106 ) See ibid, pp. 68-77 for discussion of objections made in England to the introduction
of a class action and for rebuttal of these arguments. Mulheron notes, in particular,