In the recent decision from the Court of Appeal, the Court accepted the case filed by Cambodian villagers against a Thai company as a class action. The Court also provided some guideline which may be helpful in requesting permission to conduct a case as a class action in the future.
A class action has been widely recognized as an efficient litigation mechanism for collective actions in which all members of the group with common rights may benefit from a lawsuit taken by some members with no need for all members to participate in such a lawsuit. For Thailand, the class action has been introduced since 2015 pursuant to the amendment of the Civil Procedural Code. However, there have been not many precedents (particularly from the high Courts) so far.
According to the amended Civil Procedural Code, a class action may be initiated by a plaintiff filing a complaint together with a request for the permission to conduct the case as a class action. In the request, the plaintiff will have to prove to the Court’s satisfaction that the legal requirements for the class action are met. Some of these requirements are that (i) the plaintiff shall clearly state the common basis of the claim for the plaintiff and the members as well as
the calculation method of damages, (ii) the plaintiff shall identify the common characteristics of group members for determination of the scope of the group, (iii) due to a number of the group members, an ordinary lawsuit would be complicated and inconvenient, and (iv) the class action would be fairer and more efficient. The defendant is allowed to submit an objection to the request. The Court will then conduct an inquiry and issue an order accordingly. If the case is accepted as a class action, the Court will allow persons qualified as group members to opt out within a certain period. Unless opting out, they would be automatically bound by the Court’s decision.
Among the above legal requirements, the most decisive ones in practice may be the common basis for all of group members and the convenience in conducting the case as the class action. On these issues, it must be decided whether the claims of all members are similar enough to be considered altogether in a single lawsuit or not. The problem may arise in cases involving unique issues for each member. For example, in some cases, the members may be damaged from the same action, but their damages may vary. As a result, it would be necessary to prove damages for each of them individually. In those cases, the defendants may argue that the class actions would be inconvenient.
In one recent case (The Court of Appeal’s Decision Red Case No. 3606/2563), which is final, the Court of Appeal provided some guideline on these issues. In that case, the plaintiffs, being members of the group of Cambodian villagers, sought the Court’s permission for a class action claiming that their properties were damaged by the action of the defendant’s Cambodian affiliate. It was alleged that the Cambodia affiliate forced the villagers out of their land and destroyed their properties. The permission was initially denied by the Court of First Instance. In so order, the Court referred to various difficulties, e.g. the members’ lacks of addresses in Thailand, the difficulty in translating certain documents from Thai to Cambodian, the difficulty in communicating with the members in Cambodia, and the difficulty in considering the case under the Cambodian laws. The denial order was appealed to the Court of Appeal, who reversed it and accepted the case as a class action. The Court of Appeal explained in essence as follows. As the alleged infringement caused damage to all group members, they all had the same rights pursuant to the same laws and facts. Despite the different damage suffered, the members are of common characteristics. The class action would be more time and cost efficient. It would also avoid repetitive procedures and inconsistent results.
From this decision, it appears that the Court interpreted these requirements rather broadly. Though the Court expressly recognized differences in the damages of the members, the Court still accepted the case as a class action due to the same basis, i.e. the same tort. It remains to be seen how the plaintiffs will prove the different amounts of damages for each member during the trial of the main case and more importantly how the members will enforce payment of such damages if the decision is favorable. //