Class actions can be potent weapon
Hong Kong people are equal before the law, which implies equal access to justice. Sadly, for many, that is not the case. People may be effectively denied the right to seek a legal remedy for loss or grievance because they cannot afford the cost yet are not poor enough to qualify for legal aid, or because the loss is too small to justify the cost of seeking compensation. Such empowerment of those with resources over those without cannot be good for our system of justice.
An example is when a large number of people claim to have been adversely affected by the action or omission of another person, a corporation or the government.
More than two years ago the Law Reform Commission issued a consultation paper on a measure adopted elsewhere to widen access to justice - class actions, or multiple party litigation in which claims by a number of people against a single defendant over the same alleged wrong can be determined in a single court action. In a class action a representative plaintiff effectively sues on behalf of all of them.
Finally, after studying 61 submissions, of which 35 were in favour, the commission has proposed class actions as a means of widening Hong Kong people's access to justice. It has suggested phasing them in cautiously, beginning with consumer cases, to avoid encouraging a flood of unnecessary litigation.
Any reform to improve access to justice is welcome. Elsewhere, however, concerns have been raised that class actions unduly encourage litigation and can be exploited by litigants and their lawyers. The commission's class-actions subcommittee has acknowledged the need for safeguards, such as cases not being allowed to proceed unless certified by a court, and protection of successful defendants from being unable to recover costs.
Funding in class actions remains problematical. Subcommittee chairman Anthony Neoh says that since a comprehensive funding mechanism is unlikely to be put in place in the short term, cash should be injected into the Consumer Council's HK$18 million Consumer Legal Action Fund so that it can pay for class actions.
In Hong Kong, class actions could be a potent weapon, given the increased willingness of people to resort to the courts to resolve disputes. Potential class-action consumer groups include victims of retail consumer fraud or faulty products, people who suffer personal injury such as food poisoning and flat buyers complaining about poor workmanship. Business is bound to have concerns that it will be exposed to costly, time-consuming litigation, but with safeguards in place, these proposals strike a fairer balance in the interests of justice, given that the cost of going to court is prohibitive to most people.