From the perspective of a plaintiff (or a group of plaintiffs) considering initiating a class action in a Thai court, a primary benefit of proceeding as a class action is the ability to aggregate claims that would otherwise be too small or too costly to bring individually. Where one plaintiff might lack a claim large enough to make pursuing litigation a cost-effective option, the combined claims of many plaintiffs could surpass that threshold. Similarly, the prospect of representing a number of plaintiffs, along with the potential legal fees that could be awarded with a win, should serve as an incentive for counsel to represent a class of plaintiffs who, acting individually, would otherwise not be able to engage a lawyer interested in taking their case.
For these same reasons, a defendant will most likely—although not necessarily always—oppose a plaintiff’s request that a case be allowed to proceed as a class action. From a defense perspective, preventing a case from proceeding as a class action could be a significant strategic goal, as it could mean that individual plaintiffs, as well as their counsel, would lack the financial incentive to pursue potentially costly litigation for their separate, relatively low-value claims.
Potential defendants, therefore, may benefit considerably by understanding how a Thai court determines whether a case can proceed as a class action and, if it does, the potential options for a defendant that objects to this determination.
The Court’s Initial Determination: Class Action or Ordinary Litigation?
When a named plaintiff requests that a case proceed as a class action, that plaintiff must present the case to the court in accordance with the prerequisites stipulated by Thai law. The Civil Procedure Code (CPC) sets out the prerequisites for a case to proceed as a class action. Considerations include:
- whether the nature of the claim and the monetary relief sought are based upon allegations of the same manner;
- whether the plaintiff shares the common characteristics of the members of the class;
- why the number of members of the potential class would cause difficulty and inconvenience if the case were to proceed as an ordinary case;
- why class action proceedings will be fairer and more efficient than ordinary case proceedings; and
- why the named plaintiff and his or her lawyer are competent to carry out the proceedings adequately and fairly.
At this initial stage, the court plays an important role in discovering the facts of the case and determining whether it fits these prerequisites. That is, the matters that the court must decide at this stage focus on the nature of the claims rather than on the merits of the case.
A defendant that wishes to prevent a case from proceeding as a class action has a number of options at this stage. Among these, the defendant has the right to object to the plaintiff’s petition. (Other possibilities—beyond the scope of this article—include agreeing with the other parties to proceed with mediation or arbitration, or reaching some other sort of agreement to conclude the matter.)
In objecting to the plaintiff’s petition, the defendant has the right to present witnesses during the inquiry stage, when the court will determine whether it will grant the plaintiff’s request to have the case proceed as a class action instead of as a common case. In making its determination, the court will review the facts and consider the arguments of both parties to assess whether the case fits the CPC prerequisites mentioned above.
Should the court grant the plaintiff’s petition, this puts the defendant in the position of having to defend against all potential claims determined to be within the scope of the class action.
Appealing a Court Order Allowing a Class Action
Parties may appeal the decision on whether the case should proceed as a class action to the relevant appellate court. If the court’s determination is that the case is to proceed as a class action, the defendant has seven days to appeal the court’s order—though it may be possible to request an extension, depending on the facts. In effect, the case would be at a stay until the appellate court renders an order, which would be the final word on whether the case should proceed as a class action.
The points that the defendant can raise to appeal the order are not limited to the CPC prerequisites identified above, as there could be other potential bases for the appeal, depending on the defendant’s case strategy. Nevertheless, the focus at this stage of the case is on whether the case fits those prerequisites.
In the appeal process, the appellate court typically reviews only the lower court’s decision—not additional information from the parties. This means that all facts potentially beneficial to the appeal need to have been presented and included during the witness examination stage in the court of first instance. Therefore, it is essential for parties to provide counsel with full understanding of the case from the beginning, as this can potentially affect the case throughout the appellate process. Though possible, it is unlikely that the appellate court would consider further information beyond what was already presented in the court of first instance.
Even when the order to proceed with the case as a class action is final, the case could still later proceed as an ordinary case if the court of first instance determines that it is no longer beneficial (to the members of the class) or necessary for the case to proceed as a class action, or if the original attorney on the plaintiff side withdraws or is deemed unable to fairly protect the class and replacement counsel is not secured within the timeframe specified by the court. Again, in making this determination (i.e., whether to allow a class action to continue as such), the court will revisit the prerequisites that were used as the basis of the case order on proceeding with class action—and could also inquire into the relevant facts. Court orders of this type are final and cannot be appealed.
Further Proceedings and Class Action Strategy
A plaintiff’s request that a case proceed as a class action case is always addressed first. The actual merits of the case are heard at a later stage, after the first court’s order on whether the case should proceed as a class action is final. Because this initial determination must take place before the merits can be considered, it can take longer for such cases to become final than it generally does for ordinary cases not proceeding as a class action. Also—as described above—even during the class action proceedings, the court of first instance can still revisit the necessity of the case proceeding as a class action.
In terms of strategy, defendants hoping to prevent a case from proceeding as a class action have a number of potential opportunities to achieve that outcome. But each case is unique, and class action proceedings typically involve complex matters involving numerous plaintiffs and a complex array of facts and circumstances. Efficient and effective coordination among the members of the defendant’s team is essential in order to ensure procedural fairness and the best possible outcome of the case. Defendants should be sure to enlist experienced legal counsel and develop a comprehensive litigation strategy that covers every credible possibility to achieve their desired result.
For further information, please contact:
Suruswadee Jaimsuwan, Tilleke & Gibbins