Collective Redress & Class Actions 2024 Comparisons

Given Singapore’s colonial past, written legislation for collective redress originated from the United Kingdom. Representative actions were said to be first developed by the Courts of Chancery in response to the injustice arising from the general rule that all the parties interested in the outcome of a case must be joined to the proceedings: Koh Chong Chiah v Treasure Resort [2013] 4 SLR 1204. Where parties were numerous, justice was not served by requiring all interested persons to be made a party. Instead, all parties interested in the proceedings could be involved through representation.

The basis for this legislative regime is to provide “access to justice” by allowing for a practical and economical method of asserting and enforcing a claim by or against numerous parties. This allows parties to overcome the cost-related barriers associated with individual litigation. From the perspective of the courts, this avoids multiple independent suits and enables the court to focus on and resolve all issues in a single set of proceedings, ensuring efficacy and avoiding inconsistent decisions.

There is no applicable information in this jurisdiction.

The key procedural rule for representative proceedings is found in Order 4, Rule 6 of the Rules of Court 2021. It reads:

“6.—(1)  Where numerous persons have a common interest in any proceedings, such persons may sue or be sued as a group with one or more of them representing the group.

(2)  Where a group of persons is suing under this Rule, all members in the group must give their consent in writing to the representative to represent all of them in the action and they must be included in a list of claimants attached to the originating claim or the originating application.

(3)  Where a group of persons is being sued under this Rule, the Court may appoint one or more of them as representative to represent those in the group who have given their consent in writing to the representative in the action and they must be included in a list of defendants attached to the order of Court.

(4)  Where there is a class of persons and all or any member of the class cannot be ascertained or cannot be found, the Court may appoint one or more persons to represent the entire class or part of the class and all the known members and the class must be included in a list attached to the order of Court.

(5)  A judgment or order given in such an action is binding on all the persons and the class named in the respective lists stated in paragraphs (3) and (4)”.

This Order provides the mechanism whereby one or more persons may represent a large group in suing or defending a suit. The Order also provides the mechanism whereby the court may authorise one or more persons to represent a class of persons.

There are also specific provisions, such as those found in the Building Maintenance and Strata Management Act 2004, which allow management corporations to represent subsidiary proprietors in proceedings.

There is no limit to the areas of law to which the foregoing legislation applies.

A collective redress/class action suit is defined as follows: “where numerous persons have a common interest in any proceedings”. This has been widened from the previous requirement (Order 15, Rule 12 of the Rules of Court 2014) of “same interest”, which in any event was given a broad interpretation by the courts. In Koh Chong Chiah v Treasure Resort [2013] 4 SLR 1204 at [78], “same interest” was defined based on the following criteria:

• the class of represented persons must be clearly definable;
• the proposed representative plaintiff must adequately represent the interests of the class of represented persons and must vigorously and capably prosecute the interests of the entire class;
• there must be significant issues of fact or law common to all the claimants in the representative action; and
• all the claimants in the representative action must benefit from the relief granted by the court.

Like any other claim, a representative class action is initiated by filing an originating claim or originating application (for questions of law) (Order 2, Rule 3 of the Rules of Court 2021). Leave of court is not necessary except where a group of persons are being sued or all or any member of the class cannot be found. All members in the group must give their consent in writing to the representative(s) to represent all of them in the action. The members of the group must be included in a list of claimants attached to the originating claim or originating application (Order 4, Rule 6(2) of the Rules of Court 2021). Further, the originating claim or originating application must be endorsed with a statement of the capacity in which the claimants sue. If the group is being sued, the court may appoint one or more of the persons in the group to represent the persons in the group who consent and who are listed as defendants in a list attached to the order of court.

As the named party, the representative plaintiff makes all the decisions on the course of the proceedings, including the matter of settlement. He or she is liable for the costs and will be able to recoup the expenses from the members of the represented group pursuant to their agreement.

The procedure is similar for class actions whereby proceedings may be commenced and an application made to court to appoint one or more persons to represent the entire class or part of the class. All the known members and the class must be included in a list attached to the order of court.

Under the old rules (Order 15, Rule 12 of the Rules of Court 2014), Koh Chong Chiah v Treasure Resort [2013] 4 SLR 1204 established that there were two stages to the provision. First, the jurisdictional stage required the satisfaction of the threshold that the claimants have the same interest in the proceedings. After this requirement was met, at the second discretionary stage, the court could exercise its discretion to discontinue the proceedings in question as a representative action where the overall circumstances of the case so justified. Commentators believe that this residuary discretion of the courts remains under the new provision.

There is no specific procedure for commencing representative actions, and they follow the same procedure as that for commencing an action by way of an originating claim or originating application.

It is noteworthy that the Rules of Court 2021 require neither leave nor a representation order before representative proceedings are commenced, so it is open to would-be-litigants to pursue their claim collectively without seeking permission from the court. Thus, the two-stage Koh Chong Chiah v Treasure Resort [2013] 4 SLR 1204 test should be considered only when an opposing party challenges the appropriateness of representative proceedings.

On the other hand, a group of defendants would need to obtain an order of court appointing one or more of those defendants to represent the group. An order of court is also required for a person(s) to represent a class of persons or part of the class where all or any member of the class cannot be ascertained or found.

The only requirement to bring collective redress/class action suits in Singapore is that persons have a common interest in the proceedings. There has been no case law on what “common interest” constitutes but under the previous provision, “same interests” was widely applied (see 3.2 Definition of Collective Redress/Class Actions). Such persons may sue or be sued as a group, with one or more of them representing the group.

There is no limit on the number of members within a class; however, in Syed Nomani v Chong Yeow Peh [2017] 3 SLR 1064, the court concluded that it would not have been procedurally efficient for the case to proceed as representative proceedings, as only 11 persons were involved.

Members of the group with the common interest have to opt in. In the case of a group of claimants, they will have to give their written consent to the representative to represent them all, and their names will be listed and attached to the originating claim or originating application. In the case of members of a group of defendants, they will have to give their written consent to the representative to represent them, and their names will be listed and attached to the order of court by which the representative is appointed by the court. In the case of a class of persons where all or any member of the class cannot be ascertained or cannot be found, the court may appoint one or more persons to represent the entire class, or part of the class, and all the known members and the class must be included in a list attached to the order of court by which the representative is appointed by the court.

Leave of the court is necessary to join parties to the action (Order 9, Rule 10 of the Rules of Court 2021). Adding members to the group therefore requires an application for court approval.

After filing the originating claim, the court will fix a case conference and give directions to parties for progression of the claim.

From commencement to the end of trial, originating claims usually take about a year to complete. However, because of the complexity of representative or class actions, it may take longer.

Where all parties agree, there is the possibility of using the express track, which provides for the trial to take place within nine months after the action is placed on the express track (Order 46A of the Rules of Court).

Third-party funding is not permitted for representative or class actions (except those commenced in the Singapore International Commercial Courts), and contingency fee arrangements are prohibited in Singapore. Conditional fee agreements are permitted only for cases commenced in the Singapore International Commercial Court or generally in relation to arbitration matters.

Costs are generally awarded to the winning party bar exceptional circumstances. A defendant is not entitled to seek costs against the represented persons individually in the event that he or she succeeds in defending the representative action.

Parties may apply to court for pre-action disclosure or disclosure during proceedings. The individual represented persons are not obliged to give discovery or evidence relating to the claims in the representative or class action.

The usual legal advice and litigation privilege applies to documents and correspondence.

There is no limit to the remedies parties can seek. The most common remedies sought are damages, specific performance as well as declaratory or injunctive relief.

In representative tort actions, one difficulty is that individualised assessment of damages may be necessary vis-à-vis each claimant. It may be argued that this is a factor militating against representative proceedings. This becomes less of an issue, however, if the claimants in representative proceedings seek only a declaration of their entitlement to damages, with the damages being assessed only at a later stage and not by way of representative proceedings. In Koh Chong Chiah v Treasure Resort [2013] 4 SLR 1204 at [110], it was observed that “declaratory relief does not require an assessment of damages on a personal basis in a representative action, and thus will not offend the ‘same interest’ requirement”.

The courts strongly encourage ADR, and parties have a duty to consider amicable resolution of the party’s dispute before the commencement and during the course of any action (Order 5, Rule 1 of the Rules of Court 2021).

Parties can bring their disputes to the following arbitral and mediation bodies in Singapore: the Singapore International Arbitration Centre, the Singapore International Mediation Centre, the Singapore Mediation Centre and the Singapore Chamber of Maritime Arbitration.

A judgment of the court is binding on all the persons and the class named in the list (Order 4, Rule 6(5) of the Rules of Court 2021). Thus, all persons on the list are bound, and the judgment can be enforced against all the persons and the named class in the list.

Previously, Order 15, Rule 12 of the Rules of Court 2014 allowed a person to dispute liability under a judgment or enforcement order on the ground that “by reason of facts and matter particular to his case he is entitled to be exempted from such liability”. This same principle should continue to apply under the new rules. Therefore, if a person was wrongly included in the class or group of persons represented in the proceedings, the court would not permit the judgment to be enforced against him or her.

There is no known policy development at the moment in relation to the matter discussed in the previous sections.

The Rules of Court 2021 were amended from the 2014 version to require a “common interest” amongst members of the group and make it possible for the class action to proceed even where all or any member of the class cannot be ascertained or found, via the court’s appointment of a representative or representatives to represent the entire class or part of the class.

With the enactment of the Transboundary Haze Pollution Act 2014, the use of representative proceedings to pursue civil claims under the Act was expressly considered and affirmed during the second reading of its bill. However, there is no reported case of a representative action being commenced to enforce rights under this Act.