Simply put, class actions are civil suits where one or more plaintiffs are permitted to file a suit on behalf of a broader group (or ‘class’) of people. In other words, it is a procedural device used by courts to manage the number of plaintiffs in a suit, protect defendant(s) from inconsistent obligations, protect the interests of absentees, provide convenient and economical means for disposing of similar lawsuits, and facilitate the spreading of litigation costs among numerous litigants with similar claims. (1) Such suits are particularly popular in the USA, where it is an option available under Rule 23 of the Federal Rules of Civil Procedure.
A variant of class action suits, public interest litigation (PIL) also issues from American jurisprudence (2) and has been extant in South Asia for several decades. This is a form of litigation where an individual or organisation (such as an NGO) files a suit on behalf of a group for the public interest. The group represented are often marginalised groups and the defendants have historically been public authorities but more recently have included large corporations.
The prevalence of PILs in South Asia has been ascribed to a number of factors including the existence of a large public sector, a history of authoritarian rule and the lackadaisical monitoring of businesses. An example of a public interest issue, raised before Bangladeshi courts, is the prohibition of the use of child labour in cigarette factories. (3)
While this may yield some damages for the affected parties, the primary purpose of such litigation is to change (or enforce) the action of public authorities. This raises questions about whether a PIL is the best mechanism for bringing a private entity to court and what the limits of ‘public interest’ are.
It is for this reason that the use of class action suits would be complementary to PILs. They would create scope for an individual consumer to bring proceedings against a pharmaceutical company responsible for producing adulterated medicine, on behalf of all consumers in a similar group or a misdiagnosed patient to sue a hospital on behalf of all patient’s who have been misdiagnosed by that hospital. Technically speaking, such actions are already possible in Bangladesh, whereby one person may sue on behalf of all parties who share the same interest (not necessarily a public interest) (4). However, it is a provision which is not actively applied and, indeed, not widely known about. On the one hand, this may be due to a lack of judicial familiarity with the concept. On the other,lawyers lack an incentive to bring such actions as they do in the US.
The Bar Council rules regarding the professional conduct of lawyers in Bangladesh renders it difficult for them to enter into ‘conditional fee agreements’, as potential success of a case is not one of the permitted considerations in ‘fixing fees’ (5) and receiving a pre-determined percentage of damages (if successful) involves a commingling of the property of the client and counsel.(6) Cynically speaking, if they were, lawyers would be more enthusiastic in collecting litigants, in the hopes that they would receive a hefty sum if their clients’ action is successful
Moreover, as with most countries outside of the US and Canada, ‘punitive’ or exemplary damages are not generally granted in Bangladesh. [However, in the landmark case of Bangladesh Beverage Industries Ltd. v. Rowshan Akhter, 62 DLR (2010) 483 is exceptional in that it awarded aggravated damages. Perell J. described such damages as being the remedial neighbour to punitive damages in Das v. George Weston Limited, 2017 ONSC 4129, para. 302 and was convinced that irrespective of whether punitive damages are granted or not, the possibility exists under Bangladesh law.] Nonetheless, coupled with the lack of conditional fee arrangements, it is unlikely that Bangladeshi lawyers will push to certify class actions and secure hefty damage awards just yet. If courts decide to award such exemplary damages in the near future it is more likely to do so in view of the egregiousness of the misconduct.
(1) United States Parole Comm’n v. Geraghty, 445 U.S. 388, 402-03, 100 S.Ct. 1202, 1211-12 (1980).
(2) See Brown v Board of Education, 347 U.S. 483 (1954).
(3) Ain-O-Salish Kendra (ASK) and another vs. Bangladesh, 63 DLR (2011) 95
(4) Order 1, Rule 8 of Bangladesh’s Code of Civil Procedure, 1908 reads: “(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give, at the plaintiff’s expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. [emphasis added]
(5) Chapter II (10) of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette
(6) Chapter II (6) of the Bangladesh Bar Council Canons of Professional Conduct and Etiquette