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Class action proceeding - Class action lawsuits in Thailand

Class Action Lawsuits and Proceedings in Thailand

Thailand - On 8th April 2015 there was an amendment of the Civil Procedure Code - B.E. 2558 (2015) was promulgated into the Royal Thai Government Gazette. This amendment to the Civil Procedure Code introduced class action proceedings, into the Thai legal system.

Originating from Anglo-Saxon law the class action lawsuit involves several injured parties who do not all have to start their own legal actions in order to receive a court reward out of the class action case. Therefore, the class action lawsuit can provide efficiency and facilitate justice in certain cases with a large number of parties. It can bring justice for injured persons who would otherwise not seek compensation. Even small claims of numerous people can add up to a considerable or even huge value of the aggregated claims. The typical model case would be a consumer protection case with many injured individuals against the responsible corporation. In theory class actions strengthen the procedural rights of less privileged social groups. Can the practice of class action in Thailand keep this promise? We will monitor class action cases.

The initial concept of draft law on Class Action Act was mainly adopted from the United States Federal Rules of Civil Procedure. It might be worth to carefully study the application of the US class action law in Thailand as class actions until now foreign to the Thai legal system are well-established in the United States. This even more as the new Thai class action is surprisingly vague regarding central issues, e.g. regarding the group of people who shall be bound and entitled by the class action called “class members” under the new law (the new law contains a provision for the opting-out of class members, but is not clear as to whether a person will be a class member eo ipso by fulfilling the statutory requirements or whether a constitutional act is required).

On the other hand the new class action amendment contains provisions for the procedure during and in preparation of court hearings, e.g. regarding evidence owned by the counterparty, the testimony and questioning of parties, matters in dispute etc. which in such detail are not even regulated in the Thai Civil Procedure Code for all other types of procedures which involve no class action.

There are limitations as to what extent US interpretations and precedents can be used to interpret the new Thai class action law, as the common law system of the US is based on different principles and a different legal culture than the Thai system which follows the continental-European civil law.

The introduction of the class action into the Thai Civil Procedure Code amounts to an exception to the fundamental principle that the right to sue lies only with the party who is affected in their own rights. This principle which is comparable to the Anglo-Saxon “locus standi” governs the Thai civil procedure as prescribed in Section 55 of the Thai Civil Procedure Code: only the persons whose rights are involved is entitled to submit a lawsuit to a civil court. By contrast, under the new class action law a plaintiff and the plaintiff’s attorney will have an extraordinary leading role and submit a lawsuit for all “class members” who will be bound by the decisions of the court in the class action case. This also means that the class members will automatically forfeit their rights to bring a new lawsuit as Section 144 of the Civil Procedure Code prescribes that an adjudicated case may generally not be tried again. If a person regarded as a class member wishes to avoid being bound by the class action proceeding, they would need to formally opt-out.

The class action lawsuits which may be filed must involve wrongful acts or breach of contracts or other forms of losses arising from specific laws; environment law, consumer protection law, security and exchange law, competition law and labor law as well.

The plaintiff of class members can file a lawsuit together with a request to commence a class action to the Court. Thereafter, the Judge will consider and send the copy of those to the defendant. If the request is approved, the Judge will send the notice to class members and publish on the well-known newspaper 3 days continually so in case any member would exclude from this class (opt-out), shall send a correspondence to the Court within the prescribed period. The notice shall include the important information i.e. the rights of the class member, binding of final judgment, detail of Court and case.

 

FAQ - Class Action Lawsuit - Class Action Proceeding - Thailand 

1.  What is a class action?

A class action lawsuit is a special kind of lawsuit which allows to bring claims of many people who will not all become plaintiffs themselves to a civil court, typically in cases with many injured people or consumer cases.

 

2. What is the definition of “Class” under this law?

A group of persons (more than 2 persons) having identical rights arising from common issues of fact and law and possessing identical characteristics that are specific to the class even if there are variations in the type of damages suffered by each person.

 

3. Which is the Court jurisdiction for this class action?

All Courts of Justice (except District Court) e.g. Civil Court, Provincial Court, Tax Court, Labor Court, Central Intellectual Property and International Trade Court etc. but not includes Administrative Court and Constitutional Court.

 

4. What is prescription period under this law?

The prescription period depends on the kind of claim as regulated in the Civil and Commercial Code. Once the Court allows to proceed in class action, a prescription of each class member will stop running when the class action suit was filed.

 

5. How to opt-out of the class?

– Giving a notice of opting-out of the class to the Court within the prescribed period which specified in the notice which sent by the Court to each member;

– If failure to give notice to opt-out of the class after the expiration of the period prescribed by the Court, he/she shall request the leave to the Court and be allowed.

 

6. What is the effect after opting-out of the class?

If he/she opted-out of the class, he/she has the right to file a separate individual lawsuit on own behalf, but not in the form of class action. Moreover, he/she cannot file a motion to intervene or join as a plaintiff in the class action.

 

7. Will the defendant notice about the class action proceeding?

Yes, the Court will send the lawsuit together with a request of class action to the defendant. Thereafter, the Court will question both parties before approving the class action proceeding.

 

8. What is the condition for class action proceeding?

The Court will allow to proceed as a class action if found that:

1. The case and allegations on which its bases its case are clear and are equally applicable to both the plaintiff and the class members;

2. The plaintiff can demonstrate specific and sufficient identical characteristics apply to the Class;

3. The number of class members is numerous and it would be burdensome and inconvenient if proceeding under non-class action;

4. Proceeding under class action would provide justice more efficiently than proceeding under the non-Class Action; and

5. The plaintiff can sufficiently demonstrate that he/she is one of the class members and meets the qualifications of the law; and that the plaintiff and the plaintiff’s attorney will represent the class effectively and fairly.

9. Who is the class representative and what’s her/his role?

A class representative will be appointed by the class members to be a plaintiff. The class representative must share a common cause of action and have common arguments with the class member.

He/she would exercise due diligence in guarding the interests of the class since the interests of the class representative coincide with those of the class, and in guarding those interests, the claims and arguments raised by the class representative would also be beneficial to the class.

10. What’s the role of plaintiff’s attorney?

The plaintiff’s attorney is the person who prepares the list of injured person who suffered damages from the same facts and laws. The plaintiff’s attorney also files evidence and advance all expenses pertaining to the costs of proceedings, which includes the cost of seeking evidence and costs of publicizing and sending notices of the class action to class members.

11. What’s the enforcement procedure in class action?

The judgment will bind plaintiff and all class members, however, each member cannot enforce it by him/herself because the Director General of the Department of Legal Execution would make arrangements with respect to enforcement of the class action judgment whereby a class member can submit an application for repayment of the judgment debt from a legal execution officer within the time period prescribed by the Court.

However, a class member has the right to file an objection to another class member’s application for repayment of judgment debt. If an objection is filed against a class member’s application, the legal execution officer should conduct an inquiry hearing and make one of the following orders:

1. Dismiss the application for repayment of judgment debt

2. Grant full repayment

3. Grant partial repayment

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