Foreword

Authors Justice Bernard Murphy 1

Procedures for collective redress of civil law wrongs are not new. Representative procedures have been available in numerous countries around the world for a long time, and in some parts of Europe for centuries. 

 

But the landscape for representative procedures around the world, and particularly in the last few decades in Europe, is continuously evolving. At its base, that is because in the modern world the size and scope of national economies, and the mass production and distribution of goods and services by corporations including multi-national corporations, increases the possibility that wrongful injury, loss or damage will be caused on a mass scale. Countries around the world have been forced to grapple with the problem of how to deal with mass claims arising from mass civil wrongs in a way that is just, efficient, timely and at a proportionate cost.

 

Different countries have come up with different solutions to that somewhat prosaic problem. Notwithstanding that collective redress procedures usually have objectives which ought to be uncontroversial, including:

  • enhancing access to justice;
  • improving the efficient use of judicial and administrative resources, by allowing a common, binding decision to be made in one proceeding instead of multiple proceedings; and
  • making substantive laws more enforceable and thus more effective,

the different solutions around the world tend to reflect the different political, cultural and economic contexts in which they operate. And as that context changes over time, the preferred solutions to the problem of mass claims commonly also change. 

 

The inception of the Mass Claims journal has brought together many experts in the field of collective redress seeking to expand knowledge about this developing area of ​​jurisprudence. Good scholarship will assist readers to separate the facts from the anecdotes and urban myths which are often peddled in such a politically charged area as class actions. The journal will better our understanding of how other jurisdictions grapple with the problem of mass claims, so that lawmakers, judges, academics and legal practitioners in our respective jurisdictions can develop solutions which are optimal for our different political, cultural and economic situations

 

The Mass Claims journal and the scholarship it will foster should prove a valuable tool in improving the operation of collective redress regimes in different European jurisdictions, and/or in the development of such regimes in jurisdictions where there is none. One thing is plain enough; we need some better solutions to mass claims. The recent litigation regarding diesel emission 'defeat' devices in Volkswagen cars is a good example. In that case, notwithstanding various admissions by VW, the claims were litigated separately in multiple jurisdictions which gave rise to inconsistent results for consumers depending on the country, and in some countries no result at all. I doubt that was the most just, efficient, timely and cost-effective method of dealing with that mass wrong.

 

In line with the journal's mission to present a commentary on developments within and outside Europe in a comparative way, the second edition includes articles:

  • discussing approaches taken in various European jurisdictions, including; the Portuguese class action regime; setting damages in Spanish cartel cases; and bundling of claims by way of assignment in Germany;
  • containing lessons from Australia in relation to class actions and litigation funding. The Australian class action regime is a good example of one which has evolved over time in response to political and economic changes, and thus has lessons for Europe. Although it operates well, it has been the subject of repeated government inquiries, and has changed over time. This article provides an overview of developments over time and some recently proposed changes;
  • analysing a recent decision by the Court of Justice of the European Union, Volvo which concerns the place where damage is held to have occurred in a cartel damage claim;
  • analyzing the recent decision of the UK Supreme Court in Lloyd v Google , a class action brought on behalf of up to 4.4 million Apple iPhone users for alleged loss of control of personal data, in which the Court ruled that the opt-out representative action was "doomed to fail"; and
  • providing country reports from various European jurisdictions.

I commend the second edition of the Mass Claims journal to you.