Class actions in Europe
Despite the general trend towards class actions, there are still European jurisdictions that have so far resisted such mechanisms. Because of the EU Representative Action Directive, Luxembourg, for example, will (have to) introduce class actions for the first time. In those Member States where consumer class actions were already provided for in a particular way, the transposition of the Directive may require only selective adjustments to the already existing national law. However, as national laws often differ fundamentally and are subject to very particular procedural principles, the individual transposition of the Directive may be significantly more complicated for other Member States.
Discovery and Disclosure mechanisms are mainly known from the US, which probably has the most liberal regulations in this respect and allows for comprehensive mutual discovery of evidence. In the UK and Nigeria, discovery proceedings are an integral part of all civil proceedings. In South Africa, they are mandatory by Supreme Court jurisprudence.
In many EU Member States, however, there is no discovery mechanism in civil proceedings. Instead, the national courts predominantly practice so-called party proceedings, which either do not provide for disclosure of evidence at all or only within certain (narrow) limits. In principle, it is up to each party to obtain and present the required evidence. In addition to fundamental concerns of confidentiality and proportionality, tactical considerations certainly speak against disclosure - at least from a lawyer's perspective.
The party who cannot prove the facts favourable to it loses. So why should the Danish or German lawyer hand over the decisive material to the opponent? It is therefore not surprising that some EU Member States, such as Germany but also Spain or Poland, interpret the reservation of Art. 18 of the Directive in their favour and refrain from introducing a comprehensive disclosure or discovery mechanism altogether.
Third party funding
Litigation funding, is handled completely differently in national jurisdictions worldwide and is therefore a very complex issue in legal practice. In the Polish and Turkish legal systems, for example, litigation funding is not provided for at all, and in Nigeria it is even interdicted. In Germany and Singapore, litigation funding is allowed under certain circumstances, but the involvement of lawyers in litigation funding through contingency fees is in any way strictly prohibited. In India, the financing concept is still considered new, but is attracting so much interest that more and more law firms and companies are jumping on the bandwagon. Interestingly, in the USA, the original Third Party Funding trendsetter, the sources for litigation funding have become more conservative again in recent years.
Environment, Social and Governance (ESG) factors are also of the utmost importance to many businesses across the world and enhanced regulatory frameworks require businesses to respond, and to report. The potential financial and reputational cost of 'getting it wrong' is high. ESG is likely to increasingly become the subject matter of litigation, to include class actions.
DWF has advised on some of the biggest class action cases, in multiple jurisdictions and across multiple sectors.
Should you wish to discuss your strategy in preparation for future class actions under the new EU Directive, please don't hesitate to reach out to one of our colleagues.