Class Actions in England, North America, and Australia

AuthorSuzanne Chiodo
Chapter 2
Class actions have their forebears in equity. Representative proceedings
f‌irst emerged in medieval England in about the year 1200,1 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.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 modern class
1 Stephen Yeazell, From Medieval Group Litigation to the Modern 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”].
The Cana dian Class Action R eview | Volume 14 • No 1
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 “com[ing] at justice,”4
and the court could still avoid an inecient 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) 11 Osgoode Hall Law Journal 397 at
399–400; Neil J 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, [1901] AC 1 at 8 (HL) [Ellis], 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 110 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 (1701), 23 ER 870, and
Chancey v May (1722), 24 ER 265, both cited in Kazanjian, ibid at 402.

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