EL TOTALITARISMO ESPIRITUAL DEL VATICANO
CAPÍTULO 5: LAS ÓRDENES RELIGIOSAS
Collective redress has several advantages, albeit that there are also obvious dangers involved. A model which maximises the advantages of the procedure, while minimising its abuse through the imposition of safeguards, can be developed.
An example of such a model is Israel’s Class Action Law 5766-2006.14
Section 1 of this law specifies the four major goals of this enactment as follows:15 To promote access to justice in general, with particular regard to segments of the population not expected to bring individual actions; to enforce the relevant law in the areas subject to such actions and to deter infringements of this law; to impose appropriate remedies to benefit injured parties; and to assist in the fair and effective management of claims.
The parts of this section that follow will explore the four goals mentioned above which demonstrate the advantages of collective proceedings.
1.
The Role of Collective Actions in Improving Access to Justice
Collective actions play a crucial role in improving access to justice, and create opportunities to litigate matters which would not have otherwise been submitted to court. Normally such actions function to aggregate a cluster of smaller actions into a single legal action which is economically worthwhile pursuing.16
13 Tiana Leia Russell, 'Exporting class actions to the European Union' (2009), 28(141) Boston
University International Law Journal 145. See also Roger Van den Bergh and Louis Visscher, (n6).
14 Published in Hebrew on Israel’s Department of Trade and Industry website,
<http://www.tamas.gov.il/NR/exeres/C2B5FF40-FE01-4D04-A5DC-155A9511D9A5.htm> accessed 12 May 2011.
15 The Ontario Law Reform Commission in Canada (1982) [Vol 1 Ch 2] in its report on class actions
provided that the goals of class actions are improved access to justice, judicial economy, and behaviour modifications.
16 Steven Goldstein and Yael Efron, 'The Development of Class Actions in Israel' (1999) 27 Alei
By combining all possible claims against the same defendant, the action becomes economically justifiable and worthwhile both for the plaintiffs and lawyers provided that a share of the action income will be paid to these representatives or some form of remuneration is paid to them.17
Access to justice is also improved in collective proceedings by creating equality between the parties.18 Such proceedings are aimed at assisting the weak individual in challenging large companies. Defendant companies in such cases are often very powerful and may have unlimited resources to commit to defending their case against an individual plaintiff. By allowing the aggregation of small claims, collective proceedings serve to balance out the power differential between the parties.19
In general, therefore, collective redress is needed in cases where a large group of people has suffered minor damage, allowing representation of an injured party by another. Such aggrieved parties are not likely to bring individual proceedings for such a minor degree of damage. If representative proceedings were not allowed in these circumstances, no action would likely be brought against the company which caused the damage.
Various European scholars, among them Professor Andrea Giussani20, as well as judicial officials, have appraised collective procedures as a means to improving access to justice.21 Lord Justice Woolf was appointed by England’s Ministry of Justice to examine English civil procedure and to suggest ways to improve access to justice. In his final “Access to Justice” report published by the Ministry of Justice’s Department
17 Owen M. Fiss, 'The Political Theory of the Class Action' (1996) 53 no. 1 Washington & Lee L.Rev.
21.
18See Office of Fair Trading, 'Private actions in competition law: effective redress for consumers and
business, Discussion paper, April 2007 OFT916'.
<www.oft.gov.uk/shared_oft/reports/comp_policy/oft916.pdf> accessed 5 August 2011.
19
See Leave to Appeal Request No. 3126/00 (Supreme Court) The State of Israel v. Eshet Project Management, P"D Nun Zain (3) 220 (2003), Judge Beinish at page 278.
20 With regards to the bus example, see Professor Andrea Giussani, 'Enter the Damage Class Action in
European Law: Heading towards Justice on a Bus' (n 12).
21
See also Prof. Rachael Mulheron, 'Reform of Collective Redress in England and Wales: A Perspective of Need' (2008) Research paper for the Civil Justice Council, 38 <http://www.civiljusticecouncil.gov.uk/files/collective_redress.pdf> accessed 10 November 2011. The Government’s Response to the Civil Justice Council’s Report: ‘Improving Access to Justice through Collective Actions’ available at the Ministry of Justice site, July 2009. <http://www.docstoc.com/docs/38408988/REPRESENTATIVE-ACTIONS-IN-CONSUMER- PROTECTION-LEGISLATION>.
for Constitutional Affairs,22 he stated that group action procedures are required since they provide expeditious, effective and proportionate methods of resolving complex multi-party litigation. As these commentators noted, collective procedures are used in order to improve access to justice and to enable victims of an unlawful actions who suffered only minimal damages to group their actions and to bring them together to the court in order to obtain a remedy.
The Israeli and the U.S. examples show that access to justice is improved dramatically where class action mechanisms adopt certain features, such as bonuses and aggregation of many victims into one action using the opt-out mechanism. The use of class actions in these jurisdictions demonstrates that cases are brought to court and victims awarded redress in circumstances where individual damage was low and the claimant would not have otherwise sought redress through the courts. For example, in Israel more than 2400 applications for collective actions have been submitted since the introduction of CAL.23