* Required fields
On 28 May 2012, the Law Reform Commission of Hong Kong (LRC) published a report (‘the Report’) proposing that a mechanism for class action litigation be adopted in Hong Kong. The Report followed a November 2009 consultation paper in which the LRC’s Class Actions Sub-committee made the case ‘for the introduction of a comprehensive regime for multi-party litigation so as to enable efficient, well-defined and workable access to justice’. The Report makes a series of recommendations for the adoption of a systematic class framework, drawing upon legal precedents from othercommon law jurisdictions and acknowledging critical feedback from over 60 individuals and institutions who submitted responses during the consultation period.
The proposals outlined in the Report are intended to engender the adoption of formal legislation to supersede O 15, r 12 of the Rules of the High Court (Cap 4A), which permits representative proceedings by multiple litigants who share the same interests. Despite the detailed nature of the Report, however, a litany of questions persists. Moreover, as the recommendations favour an incremental approach, a comprehensive class framework appears years away. In the meantime, potential litigants, the business community, and the Hong Kong capital markets will face tremendous uncertainty. Parallel reforms in other areas such as securities and competition regulation, and enforcement may compound this uncertainty.
This article provides an overview of the key reforms proposed by the LRC in the Report and a preliminary analysis of comparative jurisdictional issues and unresolved questions following publication of the Report.
Overview of proposed reforms
Consumer casesAlthough the Report reiterates the consultation paper’s prior position that there is a good case for the introduction of a comprehensive class action regime, it also recognizes the legitimacy of some of the reservations expressed by interested parties during the consultation phase. The LRC therefore recommends that any class action regime adopted in Hong Kong begin only with ‘consumer cases’, with possible future expansion to other types of cases. The Report also recommends that O 15, r 12 be retained at least until the proposed regime is extended to all cases. Consumer cases are defined in the Report as tortious and contractual claims brought by consumers in relation to goods, services and immovable property.
In turn, the Report suggests a possible draft definition of ‘consumer’, as follows:
(1) A person (A) is a consumer in relation to a dealing with another person (B) if:(a) the dealing results in A: (i) receiving or having the right to receive goods or services; or(ii) acquiring or having the right to acquire immovable property as purchaser, mortgagor, chargor or lessee; and (b) A is not acting, or purporting to act, in the course of a business but B is so acting or purporting to so act.
The piecemeal approach suggested by the Report appears to model the ‘sector-by-sector’ consideration of the introduction of rights of collective action supported by the UK Ministry of Justice in 2009, as detailed in paragraph 2.66 of the Report.
Class certification The Report’s second recommendation proposes the establishment of a procedural framework for class actions intended to ‘filter out’ cases that are not viable in order to ensure fairness, expedition and cost effectiveness. The Report amalgamates the class certification standards in other common law jurisdictions to provide a ‘starting point for public discussion’ of various certification criteria for possible adoption in Hong Kong. Among others, the Report discusses the following common requirements:
‧ the class be sufficiently numerous to justify the class action structure;‧ the class possess a commonality of issues; ‧ the class plaintiff(s) be able to adequately represent the entire class;‧ the class mechanism be superior to individual proceedings; and‧ that courts conduct preliminary merits determinations prior to certification.
The LRC, however, appears to defer to the eventual designers of the final legislation on the specific elements that should be included in any Hong Kong class certification analysis. Notably, a preliminary merits determination is not an explicit requirement in US or Australian class actions. However, a recent US Supreme Court case clarified that rigorous analysis into whether class certification standards have been satisfied will necessarily entail ‘some overlap with the merits of the plaintiff ’s underlying claim’. (see Wal-Mart Stores Inc v Dukes 131 S Ct 2541, 2551-52 (2011)). A preliminary merits test was also raised as a potential criterion in connection with possible collective action reform in the UK, as noted in paragraph 9.17 of the Report. It remains to be seen whether such a mechanism – designed to prevent abuse – will be adopted in Hong Kong.
Opt-out structureThe Report next proposes the adoption of an ‘opt-out’ mechanism for members of a defined class, which would automatically bind designated class members upon certification by the court unless such class members affirmatively opt-out of the litigation. This opt-out structure resembles the approach used in several other jurisdictions – including the US – and contrasts with the English opt-in procedure employed for Group Litigation Orders (GLOs).
However, the LRC also proposes a default opt-in procedure to be used in class action proceedings involving foreign plaintiffs, whereby foreign plaintiffs would need to give a declaration and undertaking that the judgment or settlement would finally and conclusively resolve their claims. The Report also calls for class action proceedings commenced in Hong Kong to be publicized on a website in order to assist potential parties from other jurisdictions. Significant jurisdictional questions, however, would need to be resolved prior to implementation of an opt-in system.
FundingAfter recognizing the potential for abuse of court process and the often significant costs associated with bringing and defending class litigation, the Report proposes that the existing cost-shifting structure in Hong Kong remain intact. The LRC also recommends that courts be empowered to demand satisfaction from plaintiffs of suitable funding and cost-protection arrangements by way of security for costs. Somewhat uniquely, the Report recommends that a representative plaintiff ’s ability to satisfy an adverse costs order should be made a class certification criterion in order to prevent class members with greater means from deliberately selecting indigent plaintiffs to act as class representatives, which could also promote a possible freeriding problem. However, the Report tries to strike a balance by recommending that truly indigent plaintiffs – and by logical extension entire classes of indigent plaintiffs – be provided with access to financial support through the existing Consumer Council’s Consumer Legal Action Fund (CCCLAF).
Under the LRC’s proposal, however, lawyers would not be permitted to fund or profit from any litigation through contingency fee or other similar arrangements. Private litigation financing (eg thirdparty investors or litigation funds) would likewise remain unavailable as the LRC concluded that it would not be appropriate (and the Hong Kong community would not accept) for-profit litigation funding at this time. In addition, the LRC noted that any involvement of private litigation funding companies would require a change to the existing law on champerty and maintenance (see Unruh v Seeberger  2 HKC 609).
JurisdictionThe Report also makes a series of proposals regarding the respective jurisdiction of Hong Kong courts to hear class claims. First, it proposes that the jurisdiction of the District Court be deferred for a period of at least five years until a body of case law can be developed and new procedures are established in the Court of First Instance (CFI). Second, it recommends that District Court judges be empowered to transfer appropriately complex class action cases to the CFI. Third, it suggests that class action proceedings not be heard by the Small Claims Tribunal as the function of this forum is to enable individuals to enforce small claims through a simplified procedure.
How will parallel regulatory reforms impact the class regime?The LRC’s class action reform proposals must be viewed in the larger context of the parallel reforms that have been adopted and/or proposed recently by Hong Kong authorities. For example, the Competition Ordinance (Cap 619) (‘the Ordinance’) was signed by the Chief Executive of Hong Kong on 22 June 2012. Although it will take at least one year to take full effect, it is likely to have a significant impact on the Hong Kong regulatory and litigation landscape. The Ordinance contains two main provisions:
‧ the First Conduct Rule, which prohibits anti-competitive market behaviour involving two or more undertakings. Theseinclude price-fixing, bid-rigging, or the unlawful allocation of markets or customers. This prohibition could also extend to more commonplace business arrangements such as joint sales and marketing activities; and‧ the Second Conduct Rule, which prohibits the abuse of a substantial degree of market power by undertakings who engage in activities such as predatory (ie below-cost) or excessive pricing or tying arrangements.
Notably, the Ordinance allows private plaintiffs who have suffered loss or damage as a result of violations of the Ordinance to bring follow-on actions before the Competition Tribunal or the CFI for composite claims. Stand-alone actions, however, are not permitted – meaning that a breach of the Ordinance must first be established by the Competition Tribunal, which involves the Hong Kong Competition Commission bringing an enforcement action under theOrdinance.
The Report was also released on the heels of another major potential regulatory reform – the announcement on 9 May 2012 by the Hong Kong Securities and Futures Commission (SFC) of potential civil and criminal liability for sponsors in connection with untrue statements (including material omissions) in prospectuses. (See p 45 in this issue of Hong Kong Lawyer for a discussion of the SFC’s consultation paper on the regulation of sponsors.)
Anti-competition and securities claims are stalwarts of the class action regimes in the US, Canada, and other common law jurisdictions. For example, according to the National Economic Research Associates Inc (NERA), between 2000 and 2011, the cumulative value of all US securities class action settlements was approximately US$64.4 billion. Likewise, as recently as July 2012, Visa, MasterCard, and some of the largest US banks agreed to a settlement in excess of US$6 billion to settle an antitrust price-fixing case brought by retailers over credit card interchange fees. These figures are in spite of recent US Supreme Court decisions denying implied private rights of action under US securities laws against aiders and abettors (Stoneridge Investment Partners, LLC v Scientific-Atlanta Inc 552 US 148 (2008)), and rights of action by foreign investors against foreign issuers based on foreign transactions brought in US courts (Morrison v National Australia Bank130 S Ct 2869 (2010)).
The Report attaches as Annex 1 a list of the types of cases that ‘might be suitable for class action proceedings’ in Hong Kong, which conspicuously includes ‘securities cases’ and ‘antitrust/competition cases’. Based on the recent parallel efforts by Hong Kong authorities to tighten competition and securities laws, it is likely that there will be a significant uptick in the amount of associated investigations and enforcement actions. In other jurisdictions such as the EU, the US and Canada, private actions often follow on successful indictments or prosecutions by competition authorities or securities regulators. In addition, UK authorities have suggested that anti-competitive claims serve as the basis for proposed specialist opt-out actions.
Depending upon the final form of any class action legislation adopted in Hong Kong, there may similarly be an increase in follow-on class actions by private plaintiffs alleging anti-competitive or securities violations by defendants whose conduct has an impact in Hong Kong. However, the more limited rights of discovery in Hong Kong and the inability to bring stand-alone claims for anti-competitive violations may make plaintiffs more dependent upon government authorities to first investigate and prosecute potential defendants before they are able to launch parallel proceedings.
Which foreign class action regime will Hong Kong most closely resemble?In crafting its recommendations, the LRC analysed representative class action systems in a variety of other common law jurisdictions, including Australia, Canada, England and Wales, Ireland, New Zealand, Singapore, South Africa, and the US. The Report appears to embrace the systems in place in Australia and Canada while recommending departures from the US model. This trend seems to suggest that the final class action mechanism in Hong Kong will resemble the systems in the former rather than the latter.
Indeed, the recommendations in the Report were framed by the LRC in such a way as to acknowledge and mitigate some of the risks allegedly inherent in the US class action system. For example, the Report noted that:
‧ the Hong Kong consumer market is substantially smaller than the US market, so there would likely be fewer class actions and smaller class sizes;‧ the Hong Kong legal system did not allow for punitive (eg treble) damages;‧ jury trials in civil trials were not permitted in Hong Kong;‧ contingency fee or other similar arrangements were not permitted in Hong Kong; and‧ unsuccessful parties must pay the costs of successful parties in Hong Kong, whereas each party bears its own costs in the US.
Similarly, the Report noted that although England and Wales had recognized the need for a comprehensive multi-party regime, the jurisdiction had taken a more reserved approach to date in considering the implementation of possible reforms. Based on these factors, the Report suggested that the law and practices of Canada and Australia provided more appropriate models for adoption in Hong Kong.
However, there are key distinctions in Australia and Canada thatmake it difficult to predict whether the class action regime ultimately adopted by Hong Kong will actually resemble the systems in these jurisdictions. For example, according to a May 2010 study published by NERA, the majority of class actions in Australia have been financed by private commercial litigation funds. In addition, contingency fee arrangements are legal in some provinces of Canada. According to the same NERA report, Australian class action filings are similar in number to the level seen in Canada after adjusting for the respective size of each economy. Without the availability of similar contingency fee arrangements or private third-party litigation funding in Hong Kong, it seems unlikely that the Hong Kong class action regime will truly resemble those employed in Australia and Canada.
By contrast, the English system appears to be developing a more piecemeal, sector-specific approach to possible reform, and has rejected the introduction of a generic right of collective action. For example, on 27 April 2012, the UK Department for Business Innovation and Skills released a report entitled ‘Private Actions in Competition Law: A Consultation on Options for Reform’. The proposal recommended introduction of an opt-out collective action regime for competition law to allow consumers and business to collectively bring cases to remedy losses due to anti-competitive behaviour. This would supplement the existing regime allowing limited private rights of action in cases alleging anti-competitive behaviour that was introduced by s 19 of the Enterprise Act 2002. The Report appears to suggesta similar measured, claim- or sector-specific approach for Hong Kong. Accordingly, the English system (rather than the Australian or Canadian systems) may ultimately provide a more useful representative blueprint for predicting the shape and form of the Hong Kong class action regime.
Will the funding structure be adequate? As detailed above, other common law jurisdictions such as Australia, Canada and the US permit private third-party litigation funding, or contingency fee or other similar arrangements to bankroll complex class action cases. In its Report, however, the LRC recommended against allowing such mechanisms here and further suggested that courts demand cost-protection and other assurances from potential representative class plaintiffs. Moreover, the LRC recommended that any financial support for indigent plaintiffs be provided in the shortterm through the existing CCCLAF and in the long-term through a publicly-funded, general class action fund.
The viability of such a system, however, is far from certain. As noted in the November 2009 consultation paper authored by the LRC’s Class Actions Sub-committee, the CCCLAF only ‘partly fills the void’ for plaintiffs bringing claims against Hong Kong defendants, which can often be ‘powerful in terms of market share and resources’. The Sub-committee also noted that there are ‘no organized consumer groups with comparable funding and capacity’ to bring claims against such defendants. Should the LRC’s recommended approach be adopted in formal legislation, the proposed funding arrangement may inhibit the development of an overly active class action regime in Hong Kong.
When will the final legislation be passed and what will it look like?Corporations, financial institutions and other market participants facing potential class liability may face even greater uncertainty than potential class plaintiffs. The most frequently cited criticisms of the Report in the weeks since its release focus on uncertainty surrounding:
‧ whether ‘consumer claims’ could potentially be extended to cover more remote financial services provided by issuers and other market participants;‧ whether the ‘opt-in’ system for foreign plaintiffs will provide sufficient certainty for defendants in resolving class claims; ‧ whether the introduction of a class action system, particularly for possible securities claims, could hurt the already reeling Hong Kong IPO market; and‧ whether an expansion of class actions will consume limited court and party resources in a system that is becoming increasingly backlogged (eg the average waiting time in the CFI from application to the date fixed for hearing increased from 179 days in 2009 to 231 days in 2011).
Given the size and importance of the financial industry in Hong Kong, perhaps the most significant outstanding question is whether class plaintiffs will be permitted to sue financial institutions for misselling or other claims similar to those brought during the financial crisis in US courts by a class of Hong Kong investors over the Lehman ‘mini-bonds’. However, Anthony Neoh, the Chairman of the LRC’s Class Actions Sub-committee, was quoted as saying that:“... purchasers of financial products sold by retail banks and brokerages would be allowed to seek permission to sue as a class under such a [class] system in the future.”: Ajay Shamdasani, ‘Perfect storm of class action litigation, greater regulations may hit Hong Kong institutions, say lawyers’ (Compliance Complete in Hong Kong, 30 May 2012). Until clarity is provided regarding the form of such a system, however, financial institutions and other industry participants may face significant potential compliance and legal costs.
The LRC’s proposals on class action reform detailed in the Report were an important milestone. They represent the culmination of years of vigorous debate and consultation by legal professionals and business leaders. The proposals, however, are just that – proposals. The uncertainty surrounding class actions in Hong Kong will continue to plague litigants, the business community, and the capital markets until the proposals are formally enacted. In the meantime, however, the Report, prevailing class structures in other common law jurisdictions such as Australia, Canada, and the UK, and recent parallel regulatory reforms in Hong Kong will provide useful guideposts for predicting the eventual scope and structure of any class action litigation regime.
Georgia DawsonPartnerDispute Resolution PracticeFreshfields Bruckhaus Deringer
John K WarrenAssociate (on secondment)Freshfields Bruckhaus Deringer (Washington, DC)
The authors would like to acknowledge the contributions of Paul Lomas, a London-based partner who leads Freshfields’ class action working group, and Margaret Wang and Andrew Skudder, senior lawyers in Freshfields’ competition practice based in Hong Kong.
香港集體訴訟的改革建議 關於法律改革委員會在其報告中提出有待在香港採納的集體訴訟機制，Georgia Dawson及John Warren著重闡述了該報告中提出的主要建議。
(1) 如符合以下情況，某人（甲）就自己與另一人（乙）之間的交易而言是消費者：(a) 該宗交易令甲：(i) 收取或有權收取貨品或服務；或(ii) 以購買人、按揭人、受押記人或承租人的身份取得或有權取得不動產；及(b) 甲並非在業務過程中行事，其用意亦不是在業務過程中行事，但乙卻是如此行事或其用意是如此行事。
‧ 集體訴訟人數應使集體訴訟架構足以成立；‧ 集體訴訟具有共通的爭論點；‧ 集體原告人能夠充分代表整個集體的權益；‧ 集體訴訟機制較個人訴訟優越；及‧ 法院在核證前進行初步理據的裁斷。
然而，就香港集體訴訟核證分析中應納入哪些具體要素的問題，法改會表示應以最終制定該法律條文的人士作決定。應注意的是，美國或澳大利亞的集體訴訟都無明示規定進行初步理據的裁定。然而，美國最高法院最近審理的一宗案件卻明確指出，嚴謹分析是否達到集體訴訟核證準則必然「與原告相關申索的理據裁定有所重疊」。（參見 Wal-Mart Stores Inc v Dukes 131 S Ct 2541, 2551-52 (2011)。正如報告書第9.17段所指，英國擬進行的集體訴訟改革亦提出將初步的理據驗證作為可能考慮的準則。香港是否會採納這種旨在防止濫用的機制還需拭目以待。
然而，根據法改會的建議，律師不得通過按判決金額收費或其他類似安排從任何訴訟中獲得資金或利潤。私人訴訟出資（例如第三方投資者或訴訟基金）同樣被禁止，因為法改會認為，現階段不適宜（香港社會也不會接受）盈利性訴訟出資。此外，法改會指出，如私人訴訟出資公司介入，將需修訂包攬訴訟和助訟的現行法律（見Unruh v Seeberger  2 HKC 609)。
‧ 第一行為守則禁止涉及兩個或以上業務實體的反競爭市場行為，包括訂定價格、圍標，或非法編配市場或顧客。這一禁止規定還可擴大至普遍的業務安排，例如聯合銷售和營銷活動；及‧ 第二行為守則禁止具有相當程度的市場權力的業務實體，進行具攻擊性表現（即低於成本）或定價過高或捆綁安排等活動。
涉及反競爭和證券的申索佔美國、加拿大及其他普通法司法管轄區集體訴訟制度的主要部分。例如，根據美國國家經濟研究協會(National Economic Research Associates Inc (NERA))提供的數據，在2000至2011年間，美國所有涉及證券的集體訴訟，其和解金額累計價值約644億美元。同樣，近至2012年7月，Visa、MasterCard以及美國數家最大銀行同意一項金額超過60億美元的和解安排，以了結零售商就信用卡交換費提起的反壟斷訂定價格訴訟。這些數字與美國最高法院最近作出的裁決背道而馳，該等裁決否認美國證券法例隱含針對協助及教唆人士的私人訴訟權(Stoneridge Investment Partners, LLC v Scientific-Atlanta Inc 552 US 148 (2008))，也否認外國投資人基於外國交易向美國法院提起針對外國發行人的訴訟權(Morrison v National Australia Bank 130 S Ct 2869 (2010))。
• 香港的消費市場比美國市場的規模小得多，因此香港的集體訴訟很可能會較少出現，而集體訴訟所涉集體的人數也可能會較小；• 香港法律制度不容許懲罰性（例如三倍的）損害賠償；• 香港的民事審訊不容許陪審團參與；• 香港不容許按判決金額收費或其他類似安排；及• 在香港，由敗訴一方支付勝方的訟費。在美國，訴訟雙方各自負擔己方的訟費。
相反，英國的制度似乎以循序漸進、針對特定領域的方式來發展出一種可能的改革方案，並拒絕引入通用的集體訴訟權利。例如，英國商業創新及技術部於2012年4月27日發表了一份報告，題為《競爭法中的私人訴訟：關於改革方案的諮詢文件》（Private Actions in Competition Law: A Consultation on Options for Reform），當中建議為競爭法引入選擇退出的集體訴訟制度，讓消費者和商界共同提起案件，以補償因反競爭行為而造成的損失。這將對《2002年企業法》(Enterprise Act 2002)第19條所引入的現行制度有所補充，該條文容許在指稱反競爭行為的案件中行使有限的私人訴訟權。報告書似乎建議香港採用類似可量度的、針對具體申索，或針對特定領域的方式。因此，英國的制度（而非澳洲和加拿大的制度）最終可能提供一個更有代表性的藍圖，作為預測香港集體訴訟制度的類型和形式。
‧ 「消費者申索個案」的範圍能否潛在地擴大到涵蓋發行人及其他市場參與者提供的聯繫較不緊密的金融服務；‧ 為外國原告人實施「選擇加入」制度是否在解決集體申索個案時為被告人帶來充分的確定性；‧ 引入集體訴訟制度（尤其是可能提出涉及證券的申索個案）會否損害本已萎靡不振的香港首次公開招股市場；及‧ 在一個案件日益積壓的體系中（例如從申請到確定開審日在原訟法庭的平均排期時間，從2009年的179天增至2011年的231天），擴大集體訴訟會否消耗法院和當事人的有限資源。
鑒於香港金融業的規模及重要性，也許尚未解決的最重大問題是，集體原告人是否將獲准就金融機構的不當銷售提出起訴，或其他類似於一批香港投資者在金融危機期間就雷曼「迷你債券」向美國法院提起的申索。不過，Ajay Shamdasani援引法改會的集體訴訟小組委員會主席梁定邦的話說：「…零售銀行和經紀商出售的金融產品買家可爭取日後獲准根據這種[集體]訴訟制度作為集體起訴。」：見 Ajay Shamdasani, ‘Perfect storm of class action litigation, greater regulations may hit Hong Kong institutions, say lawyers’ (Compliance Complete in Hong Kong，2012年5月30日)。在這一制度的形式明朗化前，金融機構及其他行業參與者可能面臨潛在的巨額合規和法律費用。
John K Warren律師（借調）富而德律師事務所（華盛頓特區）
本文作者感謝領導富而德律師事務所集體訴訟工作小組、常駐倫敦的合夥人Paul Lomas，以及常駐香港的富而德律師事務所競爭業務部高級律師Margaret Wang和Andrew Skudder的寶貴意見。
Create an account or login to post comments.
Tell us what you think
Products & Services
, a division of Reed Elsevier Inc. All rights reserved.
LexisNexis, a division of Reed Elsevier Inc. All rights reserved.