Thus, under the LRC's recommended model, a foreign plaintiff must expressly opt in to the class action to benefit from the judgment. Where they involve claimants from mainland China, for example, legal ambiguity exists as to whether the mainland courts would recognise and enforce class action judgments with an opt-out approach. The LRC Report recognised that class actions commenced in Hong Kong may straddle numerous jurisdictions and involve foreign plaintiffs. 9 The opt-out model envisages that once the court has certified a class of persons as suitable for a class action, all the members of that class (except foreign parties) would be automatically bound by the outcome, unless any of them indicated a wish to be excluded from the action. 8 In May 2012, the LRC published its Report: Class Actions (the LRC Report) proposing, in particular, that Hong Kong introduce a multiparty litigation model with an opt-out approach. 7 A subcommittee of the Law Reform Commission of Hong Kong (LRC) was then tasked to make suitable recommendations on multiparty litigation and subsequently launched a public consultation in 2009 to gather opinions.
One of the recommendations was to adopt a scheme for multiparty litigation. In March 2004, the Chief Justice's Working Party on Civil Justice Reform released its final report on 150 recommendations in respect of reforms to be introduced to the civil justice system. Hong Kong has been exploring the option of introducing a dedicated scheme for multiparty litigation. Indeed, representative proceedings remain rare in Hong Kong and the jurisprudence in this area is limited. 6 As explained in this chapter, the representative proceedings model has its limitations and reform has been called for. Hong Kong inherited this current multiparty litigation model from England but has not followed the latter's reforms on group litigation orders with the enactment of the Civil Procedure (Amendment) Rules 2000, 5 nor the collective proceedings regime under the Consumer Rights Act 2015. 3 The Small Claims Tribunal also allows representative claims for two or more persons having claims against the same defendant.
This representative proceedings mechanism is available in the High Court of Hong Kong 2 and the District Court. The judgment in a representative action is binding on all persons represented by the representative plaintiff or defendant though it shall not be enforced against any person who is not a party to the proceedings except with the court's permission. In the Hong Kong Special Administrative Region of the People's Republic of China, the sole machinery for multiparty proceedings comes in the form of representative proceedings, which are commenced by or against a representative plaintiff or defendant on behalf of persons who share the same interest.
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