Class Actions in England, North America, and Australia
| Author | Suzanne Chiodo |
| Pages | 15-45 |
Chapter
2
CLASS
ACTIONS
IN
ENGLAND,
NORTH
AMERICA
AND
AUSTRALIA
A
REPRESENTATIVE
PROCEEDINGS
IN
EQUITY
AND
ENGLISH
LAW
Class
actions
have
their
forebears
in
equity.
Representative
proceedings
first
emerged
in
medieval
England
in
about
the
year
1200/
and
involved
pre-existing
groups
suing
for
a
declaration
of
rights:
for
example,
villa
gers
suing
for
a
declaration
against
the
manorial
lord
that
they
had
a
right
to
graze
common
land.
Representative
actions
reached
their
ascendancy
in
England
in
the
seventeenth
century,
and
since
that
time,
as
Stephen
Yeazell
has
written,
they
have
been
put
to
three
chronologically
separ
ate
and
distinct
uses.
1
2
In
the
first
phase,
such
proceedings
were
used
to
modernize
and
adjust
the
customary
law
governing
manorial
(landlord
tenant)
and
parochial
(priest-parishioner)
relationships
on
the
eve
of
the
agricultural
revolution.
In
the
second
phase,
in
the
late
eighteenth
and
nineteenth
centuries,
the
proceedings
were
instead
used
in
disputes
between
new
sets
of
groups,
such
as
business
persons
and
trade
unions.
For
Yeazell,
the
third
phase
involves
the
emergence
of
the
modem
class
1
Stephen
Yeazell,
From
Medieval
Group
Litigation
to
the
Modem
Class
Action
(New
Haven:
Yale
University
Press,
1987)
at
38
[Yeazell,
Medieval].
See
also
Raymond
B
Marcin,
“
Searching
for
the
Origin
of
the
Class
Action
”
(1974)
23
Catholic
University
Law
Review
515,
which
outlines
the
history
of
the
class
action
in
the
British
Isles
from
the
fourteenth
century
onwards.
2
Stephen
Yeazell,
“
Group
Litigation
and
Social
Context:
Toward
a
History
of
the
Class
Action
”
(1977)
77:6
Columbia
Law
Review
866
at
867
[Yeazell,
“
Group
Litigation
”
].
16
THE
CLASS
ACTIONS
CONTROVERSY
action
in
the
United
States.
The
first
two
phases
will
be
examined
below,
while
the
third
phase
will
be
reviewed
later
in
this
chapter.
Prior
to
1873,
judicial
authority
was
vested
in
two
systems:
the
com
mon
law
courts,
which
dealt
with
strictly
“
legal
”
matters,
and
the
Court
of
Chancery,
which
dealt
with
“
equitable
”
rights.
Common
law
courts
saw
disputes
as
purely
a
two-party
affair;
they
took
a
narrow
view
of
the
joinder
rule
and
allowed
permissive
joinder
only
if
the
judgment
would
affect
the
direct
and
immediate
interests
of
the
people
to
be
added.
The
court
of
equity,
however,
existed
to
adjudicate
not
only
the
immediate
dispute
but
also
the
rights
that
would
be
affected
by
it.
This
court
called
for
compulsory
joinder
of
all
persons
whose
interests
would
be
affected
by
the
suit,
so
that
the
eventual
judgment
would
bind
everyone
and
no
further
related
suits
would
be
brought.
3
There
were
occasions,
however,
where
all
interested
parties
could
not
be
located
or
it
would
be
impractical
to
join
them,
so
the
court
of
equity
began
to
make
use
of
the
representative
action.
Under
this
device,
one
person
could
bring
a
suit
on
behalf
of
all
interested
persons,
and
any
judgment
would
bind
all
those
people.
In
this
way,
the
compulsory
joinder
rule
would
not
prevent
the
parties
from
“
comfing]
at
justice,
”
4
and
the
court
could
still
avoid
an
inefficient
multiplicity
of
suits.
5
This
relaxation
of
the
rule
was
essential
for
groups
such
as
tenants
who
had
disputes
with
their
manorial
lord,
6
or
parishioners
who
wished
to
assert
their
rights
against
their
parish
priest.
7
As
society
industrialized
and
com
merce
became
more
complex,
business
people
also
combined
and
collec
tivized,
but
these
collectives
lacked
separate
legal
personality
(this
was
prior
to
the
birth
of
the
modern
corporation).
They
therefore
exercised
their
group
claims
through
the
court
of
equity.
8
3
John
A
Kazanjian,
“
Class
Actions
in
Canada
”
(1973)
n
Osgoode
Hall
Law
Journal
397
at
399
400;
Neil
]
Williams,
“
Consumer
Class
Actions
in
Canada
—
Some
Proposals
for
Reform
”
(1975)
13
Osgoode
Hall
Law
Journal
1
at
8-9
[Williams,
“
Some
Proposals
”
].
4
Duke
of
Bedford
v
Ellis,
at
8
(HL)
[Effis],
cited
in
William
E
McNally
&
Bar
bara
E
Cotton,
“
Guiding
Principles
Regarding
the
Constitution
of
a
Representative
Defendant
and
a
Defendant
Class
in
a
Class
Action
Proceeding
”
(2003)
27
Advocates
’
Quarterly
no
at
115-16.
5
Kazanjian,
above
note
3
at
401.
6
See
How
v
The
Tenants
of
Bromsgrove
(1681),
23
ER
277,
and
Brown
v
Howard
(1701),
21
ER
960,
both
cited
in
Kazanjian,
ibid
at
402.
7
See
Brown
v
Vermuden
(1676),
1
Chan
Ca
271,
and
Brown
v
Booth
(1690),
121
ER
960,
both
cited
in
Kazanjian,
ibid
at
402.
8
Kazanjian,
ibid
at
401.
See
also
City
of
London
v
Richmond
870,
and
Chancey
v
May
265,
both
cited
in
Kazanjian,
ibid
at
402.
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