1. SI 1998/3132. Successful claims are Howells v Dominion Insurance Co Ltd [2005] EWHC 552 (QB); Hall v Save Newchurch Guinea Pigs (Campaign) [2005] All ER (D) 301 (Mar); The Church of Jesus Christ of Latter Day Saints v Price [2004] EWHC 3245 (QB); Chancellor, Masters andScholars of the University of Oxford v Broughton [2004] EWHC 2543 (QB); Inter-Tellnc v Ocis plc [2004] EWHC 2269 (QB); Huntingdon Life Sciences Ltd v Stop Huntingdon Animal Cruelty (‘SHAC’) (‘Huntingdon v SHAC No 2’) [2004] EWHC 1231 (QB); Emerson Developments Ltd v Avery [2004] EWHC 194 (QB); Chiron Corpn Ltd v Avery [2004] EWHC 493 (QB); Huntingdon Life Sciences Ltd v SHAC (‘Huntingdon v SHAC No 1’) [2003] EWHC 1967 (QB); Daiichi UK Ltd v SHAC [2004] 1 WLR 1503; Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch D). Prior to 2003 it appears that only one case had successfully relied on CPR 19.6: National Bank of Greece SA v RM Outhwaite 317 Syndicate at Lloyds [2001] Lloyd's Rep IR 652.

2. Also referred to here as ‘the representative parties rule’ or ‘the rule’. Introduced by SI 2000/221 (in force 2 May 2000), it replaced, with some amendment, RSC Ord 15, r 12 (which was introduced by the Rules of the Supreme Court (Revision) 1962) (the ‘1962 rule’). The 1962 rule replaced and substantially amended Rules of the Supreme Court 1883 Ord 16, r 9 (the ‘original rule’). Those represented are referred to as members of a ‘class’ in order to distinguish them from claims entered on the group register under the group litigation procedure, CPR 19.10-19.14.

3. CPR 1.2.

4. CPR 1.1(2)(d).

5. CPR 1.1(2) relevantly provides that: ‘Dealing with a case justly includes, so as it practicable–… (b) saving expense; (c) dealing with the case in ways which are proportionate– (i) to the amount of money involved;… (d) ensuring that it is dealt with expeditiously and fairly; and (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases’.

6. CPR 19.7, 19.8 and 19.9.

7. CPR 19.11(2)(a); Practice Direction -Group Litigation (2000) CPR PD 19B, para 6. For discussion of this approach to multi-party claims, see R Mulheron ‘Some Difficulties with Group Litigation Orders - and Why a Class Action is Superior’ (2005) 24 CJQ 40.

8. See Huntingdon v SHAC No 2 [2004]EWHC 1231 (QB) at [48]-[49]; Huntingdon v SHAC No 1 [2003] EWHC 1967 (QB) at [26] and [27]; Daiichi UK Ltd v SHAC [2004] 1 WLR 1503 at 1512–1513; Independiente Ltd v Music Trading On-Line(HK) Ltd [2003] EWHC 470 (Ch D) at [23]and [34]; National Bank of Greece SA v RM Outhwaite 317 Syndicate at Lloyds [2001]Lloyd's Rep IR 652 at 662. Similar references were made under the 1962 rule: see Monosanto Plc v Tilly [2000] Env LR 313 at 331; Irish Shipping Ltd v Commercial Union Assurance Co plc (‘The Irish Rowan’) [1991] 2 QB 206 at 226, 231, 232, 235, 236, 238 and 241; and M Michaels (Furriers) Ltd v Askew (1983) 127 SJ 597.

9. Emerson Developments Ltd v Avery [2004] EWHC 194 (QB) at [2]; National Bank of Greece SA v RM Outhwaite 317 Syndicate at Lloyds [2001] Lloyd's Rep IR 652 at 660–661. Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch D) refers to the overriding interest at [23]and [27], and the context suggests that the reference is to its ‘access to justice’ concerns, although this is not explicit.

10. CPR 1.2(b).

11. Abbey National Mortgages p1c v Key Surveyors Nationwide Ltd [1996] 1 WLR 1534 at 1537.

12. See the survey in J I H Jacob The Fabric of English Civil Jusiice (London: Stevens & Sons, 1987) especially, in relation to judicial recognition of principles, at pp 9–15,21- 22. See also A A S Zuckerman Civil Procedure (London: LexisNexis UK, 2003) p 2.

13. CPR 1.1(1)and 1.1(2)(d).

14. CPR 1.1(2)(a), and see Lubbe v Cape plc [2000] 1 WLR 1545 at 1559 and 1561 for pre-CPR reference to procedural equality.

15. Human Rights Act 1998 (HRA 1998), Sch 1.

16. R (DPP)v Acton Youth Court [2001] 1 WLR 1828 at 1838.

17. Lord Woolf referred to the importance of understanding ‘the fundamental purpose of the rules’ in Access to Justice: Final Report to the Lord Chancellor on the civil justice system in England and Wales (London: HMSO, 1996) p 274.

18. J A Jolowicz On Civil Procedure (Cambridge: Cambridge University Press, 2000) pp 85–86; N Andrews English Civil Procedure: Fundamentals of the New Civil Justice System (Oxford: Oxford University Press, 2003) pp 133–134; Zuckerman, above n 12, pp 2, 6–7; D Galligan Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford: Clarendon Press, 1996) pp 5, 10; J Lever ‘Why Procedure is More Important than Substantive Law’ (1999) 48 ICLQ 285 at 297; G de Q Walker The Rule of Law (Melbourne: Melbourne University Press, 1988) p 19. US jurisprudence takes a similar view: T C Grey ‘Procedural Fairness and Substantive Rights’ and D Resnick ‘Due Process and Procedural Justice’ in J R Pennock and J W Chapman (eds) Nomos XVIII: Due Process (New York: New York University Press, 1977) pp 184 and 217; M H Redish and L C Marshall ‘Adjudicatory Independence and the Values of Procedural Due Process’ (1986) 95 Yale LJ 455 at 476.

19. Jolowicz, above n 18, pp 390–391 and Zuckerman, above n 18, p 6, both referring to a footnote to the Lord Chancellor's Department's Third Revision of the CPR.

20. In so far as that is possible: see J Rawls’ discussion of imperfect procedural justice, A Theory of Justice (Oxford: Clarendon Press, 1972) pp 84–85; and M D Bayles Principles of law: A Normative Analysis (Dordrecht: D Reidel, 1987) p 17.

21. Bayles, above n 20, pp 19–20; Galligan, above n 18, p 8; Redish and Marshall, above n 18, pp 481–482; R B Saphire ‘Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection’ (1978) 127 UPaLR 111 at 124; R S Summers ‘Evaluating and Improving Legal Processes - A Plea for “Process Values”’ (1974) 60 Corn LR 1 at 11–12; Rawls, above n 20, p 239; Resnick, above n 18, pp 217–219.

22. [1977] AC 547 at 575. Another example commonly cited is the protection afforded to confidentiality and privileges in legal rules: M D Bayles Procedural Justice: Allocating to Individuals (Dordrecht: Kluwer Academic Publishers, 1990) p 6; N Andrews Principles of civil Procedure (London: Sweet & Maxwell, 1994) p 19; Galligan, above n 18, p 35.

23. Galligan, above n 18, p 49. It is clear that further empirical evidence to support the assumptions contained in the formulation of such principles would be useful: Galligan, above n 18, pp 359, 361; and Lever, above n 18, at 268, although the methodological difficulties of gathering such evidence are also undeniable: Galligan, above n 18, p 160. Saphire, above n 21, at 124 n 24 acknowledges the absence of empirical support for a proposition he advances.

24. Zuckerman argues that the overriding objective adds two other ‘procedural imperatives’ to the goal of accuracy - deciding cases within a reasonable time and using no more than proportionate resources: above n 12, pp 3, 6–14.

25. Porter v Magill [2002] 2 AC 357; Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; R v Bow Street Metropolitan Stipendiaty Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119; HRA 1998, ss 3(1), 6(1), Sch 1, art 6(1); Zuckerman, above n 12, pp 71–81; J Finnis Natural Law and Natural Rights (Oxford: Clarendon Press, 1982) p 271; Bayles, above n 20, p 32; A A S Zuckerman ‘Quality and Economy in Civil Procedure - The Case for Commuting Correct Judgments for Timely Judgments’ (1994) 14 OJLS 353 at 357–358; de Q Walker, above n 18, pp 17, 19; Summers, above n 21, at 26; Redish and Marshall, above n 18, pp 457, 479–480.

26. R v Lard Saville of Newdigate, ex p A [2000] 1 WLR 1855; HRA 1998, ss 3(1), 6(1), Sch 1, art 6(1); M S Amos ‘A Day in Court at Home and Abroad’ (1924-26) 2 CLJ 340 at 343; Rawls, above n 20, p 239; G Marshall ‘Due Process in England’ in J R Pennock and J W Chapman (eds) Nomos XVIII: Due Process (New York: New York University Press, 1977) pp 80–82; Finnis, above n 25, p 271; Jacob, above n 12, pp 17, 19, 21, 66; Galligan, above n 18, pp 72–73; de Q Walker, above n 18, pp 5, 17; Summers, above n 21, at 27 n 60; Resnick, above n 18, p 219; Zuckerman, above n 12, at 81–95.

27. Galligan, above n 18, pp 37, 74–75; Summers, above n 21, at 19. R Dworkin A Matter of principle (Cambridge, Mass: Harvard University Press, 1985) pp 102–103 takes the view that ‘we do have intuitions’ that such values exist, but that more work needs to be done to establish the relevant values. See Jolowicz, above n 18, pp 73–77; Saphire, above n 21, at 124; and Summers, above n 21, at 20–27 for further suggested purposes.

28. Summers, above n 21, at 3, 14–15 uses the term ‘process values’ and Bayles, above n 20, p 28 refers to ‘process benefits’. Galligan, above n 18, pp 50–51 is uncomfortable with the terms ‘procedural’ or ‘process’ values in so far as they suggest that the values nominated are uniquely protected or promoted by procedures, a connotation expressly denied by Summers, above n 21, at 14–15.

29. Redish and Marshall, above n 18, at 482–487.

30. Bayles, above n 20, p 31; Andrews, above n 22, p 16 n 27. Contrast Zuckerman, above n 12, p 4 who argues that ‘fundamental rules of procedural fairness… such as impartiality, publicity or the right to be heard’ have independent value and ‘are ends in themselves, not means of achieving some other ends’.

31. [1977] AC 547 at 575.

32. Galligan, above n 18, pp 125–126; Marshall, above n 26, pp 70, 80; Grey, above n 18, p 183.

33. See also Hamilton v Al Fayed (2000) Independent, 21 December, CA.

34. Zuckerman, above n 12, p 15.

35. Galligan, above n 18, pp 123–124; Andrews, above n 18, pp 54–57; Zuckerman, above n 12, pp 4, 14–15.

36. Zuckerman, above n 12, p 56. The express rights are absolute except where exceptions are expressly allowed whereas the implied rights may be subject to reasonably proportionate limitations in furtherance of a legitimate aim or public interest: Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, PC.

37. Galligan, above n 18, p 132.

38. It is acknowledged that the rule might be considered to promote, or to deny, purposes other than those focused on here. See J S Emerson ‘Class Actions’ (1989) 19 Vict U Wellington LR 183 at 188–189; and J Basten ‘Representative Proceedings in New South Wales: Some Practical Problems’ (1996) 34(2) Law Society J 45 for further suggested purposes of the rule.

39. The rule diverges from the usual model of individual voluntary litigation in several important respects, which are referred to where relevant below.

40. Jolowicz, above n 18, p 104. Representative Claims: Proposed New Procedures Consultation Paper 1/01 (London: Lord Chancellor's Department, 2001) p 22 cites, as an example of the potential savings, the estimate in the Supreme Court Procedure Committee Guide for Use in Group Actions (1991) p 18 that £70,000 would be saved in court fees for the claims forms alone, if one claim could be served on a representative on behalf of 1.001 claimants.

41. Lithgow v UK (1986) 8 EHRR 329 at para 197. Which, it is also argued, has advantages for those who would not, for social or psychological reasons, pursue their claims: V Morabito ‘Class Actions: The Right to Opt Out under Part IVA of the Federal Court of Australia Act 1976 (Cth)’ (1994) 19 Melb ULR 615 at 628; and V Morabito ‘Taxpayers and Class Actions’ (1997) 20 U New South Wales LJ 372 at 381.

42. Indeed, if the rule precludes those represented from bringing independent claims while the representative claim is on foot it might be argued that it in fact inhibits formal access. See below nn 102–105 and associated text.

43. Andrews, above n 18, distinguishes between ‘formal access’ and ‘economic access’ concerns: p 108.

44. Finnis, above n 25, p 271; Jacob, above n 12, p 123; de Q Walker, above n 18, p 40.

45. Golder v UK (1979-80) 1 EHRR 524 at paras 34–35. Airey v Ireland (1979) 2 EHRR 305 at paras 3 16–3 17 affirms the importance of an effective right of access.

46. Andrews, above n 18, p 214; Zuckerman, above n 12, pp 59–40.

47. Section 1(3).

48. CPR 1.1(2). Lord Woolf Access to Justice - Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (London: Lord Chancellor's Department, 1995) p 3 articulates the assumption that a civil justice system should be fair by ensuring that litigants have an equal opportunity, regardless of their resources, to assert or defend their legal rights. See also Summers, above n 21, at 25.

49. Duke of Bedford v Ellis [1901] AC 1 at 14; The Irish Rowan [1991] 2 QB 206 at 241; Carnie v Esanda Finance Corpn Ltd (1995) 182 CLR 398 at 429–430; RJ Flowers Ltd v Burns [1987] 1 NZLR 260 at 271.

50. [2002] 1 AC 408 at 413, 455.

51. See above n 9.

52. See below nn 76–93 and associated text.

53. Supreme Court Act 1981, s 49(2); Ladd v Marshall [1954] 1 WLR 1489 at 1492; The Ampthill Peerage [1977] AC 547 at 575–576; Barrow v Bankside Agency Ltd [1996] 1 WLR 257 at 260; R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147 at 229; Johnson v Gore Wood & Co [2001] 2 WLR 72 at 90; Taylor v Lawrence [2003] QB 528 at 535–536; Sir H Brooke (ed) Civil Procedure 2004 Volume 1 (London: Sweet & Maxwell, 2004) p 418; Amos, above n 26, at 341; Jacob, above n 12, pp 82, 146; Andrews, above n 22, ch 17; Zuckerman, above n 12, p 783; Summers, above n 21, at 27; Bayles, above n 20, p 33.

54. Andrews, above n 18, p 146; Zuckerman, above n 12, p 783.

55. K R Handley (ed) Spencer Bower, Turner & Handley The Doctrine of Res Judicata (London: Butterworths, 3rd edn, 1996) p 123; Jacob, above n 12, pp 80,82; Andrews, above n 18, pp 944–950, 303.

56. The Ampthill Peerage [1977] AC 547 at 576; Jacob, above n 12, p 24.

57. Andrews, above n 18, p 942. In Johnson v Gore Wood & Co [2001] 2 WLR 72 at 90, Lord Bingham referred to the interest in finality being ‘reinforced by the current emphasis on efficiency and economy in the conduct of litigation’. This, in its turn, may be viewed as conducive to access to justice more generally, and to facilitating the court's ability to deliver reasoned decisions, thereby rendering the law effective: Jolowicz, above n 18, pp 72–73.

58. F G Hawke ‘Class Actions: The Negative View’ (1998) 6 Torts LJ 58 at 69; J Kellam and P Long ‘Product Liability and Class Actions: A Review’ (1998) 9(5) Australian Product Liability Reporter 61 at 69. See also J Bollinger SA v Goldwell Ltd [1971] FSR 405 at 411.

59. Andrews, above n 18, p 942; J Donnan ‘Class Actions in Securities Fraud in Australia’ (2000) 18 Company and Securities LJ 82 at 84; Morabito (1997), above n 41, at 380; Hawke, above n 58, at 69; Basten, above n 38, at 45; Morabito (1994), above n 41, at 627–628.

60. Zuckerman, above n 12, p 783; Andrews, above n 18, p 303; Walton v Tryon (1753) Dick 244 at 245,21 ER 262; Sheddon v Goodrich (1803) 8 Ves Jun 481 at 497, 32 ER 441 at 447; The Mihalis Angelos [1971] QB 164 at 205; R (on the application of Barron) v Surrey Country Council [2002] EWCA Civ 713 at [21]; and Stubbings v Webb (1997) 23 EHRR 213 at para 49.

61. Jolowicz, above n 18, p 317.

62. J A Jolowicz “General Ideas” and the Reform of Civil Procedure’ (1983) 3 LS 295 at 310. Andrews, above n 18, pp 143–145 refers to a principle of ‘effectiveness’. The ECtHR suggested that a failure to implement a judicial decision could violate the right to a fair trial contained in art 6: Hornsby v Greece (1997) 24 EHRR 250 at para 40; and see discussion in Zuckerman, above n 12, p 705. The principle is arguably justified by the value attached to peaceful resolution of disputes and the corresponding need to make legal resolution of disputes attractive and effective. It is not necessarily conducive to more accurate decisions.

63. Morabito (1997), above n 41, at 381. See also Jolowicz, above n 62, at 309–310; Hawke, above n 58, at 70; Donnan, above n 59, at 84, 86; Emerson, above n 38, at 188; and K E Scott ‘Two Models of the Civil Process’ (1975) 27 Stan LR 937 at 950. Jolowicz, above n 18, p 104 notes that ‘traditional private litigation may also contain an element of deterrence’.

64. CPR 1.4(2)(f). For discussion see Andrews, above n 18, pp 131–133; and Zuckerman, above n 12, pp 47–50.

65. Andrews, above n 18, pp 539–549; J A Jolowicz ‘Comparative Law and the Reform of Civil Procedure’ (1988) 8 LS 1 at 8–9; Jolowicz, above n 18, pp 392–393. The association of settlement with compromise, and potentially with confidentiality, fosters suspicion that it inhibits the accurate settlement of disputes but this may be viewed as being justified by the importance of voluntariness in civil litigation: Zuckerman, above n 12, p 47. For a more positive view, see Jacob, above n 12, pp 19, 114–116.

66. N Andrews ‘Multi-Party Proceedings in England: Representative and Group Actions’ (2000) 5 Zeitshrift für Zivilprozeâ at 16 notes this concern.

67. Emerson, above n 38, at 189–190 acknowledges this view but argues there is no empirical evidence to support it.

68. In Leathley v Robert McAndrew and Co [1875] WN 259 it was held that there was no basis on which the court could order the provision of the names and addresses of those on whose behalf the action was brought.

69. Australian Law Reform Commission Report No 46: Grouped Proceedings in the Federal Court (Canberra: Australian Government Publishing Service, 1988) p 50; Morabito (1997), above n 41, at 373; and Morabito (1994), above n 41, at 629–635, citing a Committee on Commerce of the United States Senate study finding that opt-in procedures significantly reduced class sizes, in comparison with opt-out procedures; Basten, above n 38, at 48; Emerson, above n 38, at 204–205. Contrast H P Glenn ‘Class Actions in Ontario and Quebec’ (1984) 62 Can BR 247 at 248; and Representative Claims: Proposed New Procedures Consultation Paper 1/01, above n 40, p 9. For criticism of the ‘opt-in’ approach in the context of group litigation orders, see Mulheron, above n 7, at 40–41, 47, 49–55.

70. Radcliffe v Colfsfoot [1984-86] Manx LR 386 at 410, 415, referring to J Bollinger SA v Goldwell Ltd [1971] FSR 405 as authority for the need for the representative action finally to dispose of the dispute. See also K Uff ‘Recent Developments in Representative Actions’ (1987) 6 CJQ 15 at 16–17.

71. Discussed above nn 53–61 and associated text.

72. Commissioners of Sewers of the City of London v Gellatly (1876) 3 Ch D 610 at 615–416; Conybeare v Lewis (1883) 48 LT 527 at 529. Both cases were decided under the original rule. Presumably those represented under more recent formulations of the rule would be entitled to make the same argument, if only on the basis of a party's general entitlement to dispute any matters relied upon in a claim against him or her.

73. S J Stoljar ‘The Representative Action: The Modem Position’ (1957-59) 4 U Western Australia LR 58 at 61–62. See Commissioners of Sewers of the City of London v Gellatly (1876) 3 Ch D 610 at 616; Markt & Co, Ltd v Knight Steamship Co, Ltd [1910] 2 KB 1021 at 1047–1048.

74. McHugh J's reference in Carnie v Esanda Finance Corpn Ltd (1995) 182 CLR 398 at 430 to the prospect that a representative claim can ‘effectively determine the rights of many’ may allude to this possibility (emphasis added).

75. Jacob, above n 12, p 146. Basten, above n 38, at 48 agrees that judicial efficiency supports the principle that all relevant issues should be raised in one claim, but suggests that the principle be applied ‘with circumspection’ in representative actions.

76. National Bank of Greece SA v RM Outhwaite 317 Syndicate at Lloyds [2001] Lloyd's Rep IR 652 at 661–662; The Irish Rowan [1991] 2 QB 206 at 222, 241; Hancock v Scattergood [1955] SASR 1 at 20; Struthers v Chiropractic and Osteopathic College of SA Inc (1980) L Society Judgment Scheme 36 at 38.

77. Andrews, above n 18, pp 85–89, 114–166; Jolowicz, above n 62, at 301, 313; Galligan, above n 18, pp 70, 348; de Q Walker, above n 18, p 17; Emerson, above n 38, at 202; Bayles, above n 20, p 32.

78. [1992] BCLC 824 at 828. See also Wiseman v Borneman [1971] AC 297 at 310, 314–315.

79. Galligan, above n 18, pp 348, 356–357. Handley (ed), above n 55, p 66 notes the need to demonstrate that there was notice and hearing if relying on the res judicata of a foreign judgment.

80. R v Leicester City Justices, ex p Barrow [1991] 2 QB 260 at 284–290.

81. Galligan, above n 18, pp 131–132, 349–352; Summers, above n 21, at 20–21; Redish and Marshall, above n 18, at 476, There are also those who argue that being heard or participating in the legal process has value independent of its contribution to more accurate outcomes: Saphire, above n 21, at 163–166, 174. Bayles, above n 20, p 31 argues that this principle independently contributes to dispute settlement because those who have participated are more likely to accept a decision and comply with it. Galligan, above n 18, p 159 suggests that this assumption demands further consideration following a study of tort litigants which did not find any correlation between participation and satisfaction.

82. Formerly ‘ex parte’.

83. L A Sheridan Injunctions and Similar Orders (Chichester: Barry Rose Law Publishers, 1999)pp 149–150, 152–153; D Bean Injunctions (London: Sweet & Maxwell, 8th ed, 2004) pp 34, 66–68, 71; Zuckerman, above n 12, pp 328–336.

84. Sheridan, above n 83, p 151; Bean, above n 83, p 71.

85. Andrews, above n 18, pp 429, 433. The ‘effective finality’ of such orders, despite their temporary appearance, might be influential in this assessment: Bean, above n-83, pp 24, 77.

86. Particularly given that the right to be heard is one of the absolute procedural principles: see above n 36.

87. (1957) Times, 27 February. See also Carnie v Esanda Finance Corpn Ltd (1996) 38 NSWLR 465 at 473–474.

88. [1910] 2 KB 1021 at 1040.

89. Markt & Co, Ltd v Knight Stearnship Co, Ltd [1910] 2KB 1021 at 1039; CBS/Sony Hong Kong Ltd v Television Broadcasts Ltd [1987] FSR 262 at 271; RJ Flowers Ltd v Burns [1987] 1 NZLR 260 at 273; Radcliffe v Coltsfoot [1984-86] Manx LR 386 at 412. Similar concerns have not been expressed in representative defendant claims. In these circumstances the individual claimant chooses to sue a representative and so chooses, consistent with the principle of adversarial freedom or of voluntariness, in effect to forgo knowledge of those represented and/or disclosure against them.

90. The right to access to evidence/disclosure has been held to be implied in the absolute art 6 right to a fair trial: Zuckerman, above n 12, pp 115–116. See discussion above nn 53–57 and associated text. Andrews, above n 18, cites disclosure as an independent principle (pp 122–124) and also includes it as a feature of ‘procedural equality’ (p 116).

91. Andrews, above n 66, at 15 alludes to the potential for ‘inaccurate’ findings.

92. The assumption that individual litigation is more likely to be accurate than representative litigation is not unchallenged: see Morabito (1997), above n 41, at 380 n 54. Resolution of this question is beyond the scope of this article.

93. Indeed, it is not clear that disclosure is denied by the rule as those represented are not parties and except in the circumstances set out in CPR 31.17 a party is not entitled to disclosure from third parties.

94. Or ‘individualism’: Morabito (1994), above n 41, at 620.

95. CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Lloyd's Rep 567 at 577: Zuckerman, above n 12, p 47; Jolowicz, above n 18, pp 21,65, 70: Andrews, above n 22, p 56; Bayles, above n 20, p 31; Summers, above n 21, at 24. Conversely, the rule may be considered to infringe the principle of protection of non-parties: see Andrews, above n 18, pp 142–143.

96. Esanda Finance Corpn Ltd v Carnie (1992) 29 NSWLR 382 at 404. See also National Mutual Trustees Ltd v Mirvac Funds Ltd (unreported, 20 August 1993) para 21, Supreme Court of NSW.

97. [1954] 1 QB 210 at 222. Even if those represented are entitled to ‘opt-out’, a question may arise as to whether that step would also be viewed as an unacceptable infringement upon the liberty of the individuals concerned.

98. Thereby denying class members the opportunity not to bring the claim and to operate under a more favourable misapprehension of the legal position: or the opportunity to bring an independent claim which may have resulted in a more favourable result: see Smith v Cardiff Corpn [1954] 1 QB 210 at 221–222, 226, 227; Hirst v Housing Commission of Victoria (unreported, 15 February 1979) at 7a, Supreme Court of Victoria; Carnie v Esanda Finance Corpn Ltd (1995) 182 CLR 398 at 410.

99. Contrast, for example, Re Waring (No 1) [1942] Ch 426 and Re Waring (No 2) [1948] Ch 221.

100. It is submitted that the view in CT Bowring & Co (Insurance) Ltd v Corsi Partners Ltd [1994] 2 Lloyd's Rep 567 at 577 is to be preferred to that of Jolowicz, above n 18, p 22 and Summers, above n 21, at 24.

101. Andrews, above n 18, pp 109–109, 157–158; Zuckerman, above n 12, pp 99–101, both noting that the right to legal representation has been held by the ECtHR to be implicit in the notions of access to the court and equality of arms. See also Femcare Ltd v Bright (2000) 172 ALR 713 at 721.

102. Described as a constitutional right in R v Lord Chancellor, exp Witham [1998] QB 575 at 585–586. The reference here is to ‘formal’ rather than ‘economic’ access to justice: Andrews, above n 18, pp 108, 207–208, 216–219.

103. It may be that it is not impossible but, given the res judicata effect of any order made, potentially futile.

104. Golder v UK (1979-80) 1 EHRR 524 at paras 38–39; Ashingdane v UK (1985) 7 EHRR 528 at para 57; Stubbings v UK Reports (1997) 23 EHRR 213 at paras 48–55; Zuckerman, above n 12, pp 61–64.

105. In Lithgow v UK (1986) 8 EHRR 329 the ECtHR held that representation did not violate art 6. However, there are relevant differences between the collective system for the settlement of disputes regarding compensation following nationalisation under the Act there in issue and CPR 19.6. Moreover, the ‘fairness’ of the rule is likely to depend on the particular circumstances in which it is relied upon.

106. This perception may be held more generally than it is articulated and may explain, in part, the traditionally restrictive test for ‘same interest’: J Seymour ‘Representative Proceedings and the Future of Multi-Party Actions’ (1999) 62 MLR 565 at 572–575.

107. Either explicitly, or by reference to other procedural rules with which the rule conflicts.

108. Morabito (1994), above n 41, at 636.

109. [1901] AC 1 at 8.

110. Seymour, above n 106, at 569 n 36. Post-CPR, see Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch D) at [24]-[26].

111. Seymour, above n 106, at 569–570. Attempts to articulate some other test for the ‘same interest’ required by the rule have either denied the rule any utility at all, or have restricted its availability to a very narrow class of claims, or have been so broad as to be nothing more than a synonym for ‘same interest in the claim’: Seymour, above n 106, at 572–580.

112. See, for example, Carnie v Esanda Finance Corpn Ltd (1995) 182 CLR 398. It was the test proposed by the Consultation Paper Access to Justice - Multi-Party Situations: Proposed New Procedures (London: Lord Chancellor's Department, 1997) p 7 and adopted by CPR 19.10 as the basis for a Group Litigation Order. It was also adopted by, for example, the Federal Court of Australia Act 1976, Part IVA, s 33C(1); Rules of Supreme Court (South Australia) 34.01(1); and the Class Proceedings Act 1992 (Ontario), ss 1,5(1)(c).

113. There is an opportunity to challenge this assumption in the court's residual discretion to disallow the representative proceedings: CPR 19.6(2).

114. [1901] AC 1 at 8.

115. Although it is acknowledged that where the common question is not sufficient to dispose of the claim altogether, the rule may be viewed as inhibiting finality. This raises the question whether the practical or effective finality which may be achieved is sufficient to justify resort to the rule.

116. [1981] Ch 229.

117. [1981] Ch 229 at 256.

118. [1981] Ch 229 at 256. The plaintiffs action for personal damage, to which the representative action was linked, was struck out on appeal on the basis that the rights of shareholders had not been affected: [1982] Ch 204. See discussion in R Mulheron The Class Action in Common Law Legal Systems: A Comparative Perspective (Oxford: Hart Publishing, 2004) pp 83–84.

119. Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch D) at [27]. While not as explicit in their identification of common questions, a number of the other representative claims brought on behalf of the British Phonographic Industry Ltd can also be explained on this basis: see EMI Records Ltd v Riley [1981] 1 WLR 923; CBS United Kingdom Ltd v Lambert [1983] Ch 37; and EMI Records Ltd v Kudhail [1985] FSR 36.

120. For example, common issues can be but were not explicitly identified in The Irish Rowan [1991] 2 QB 206; and in Equitable Life Assurance Society v Hyman [2002] 1 AC 408 (see, however, Lord Woolf MR at 413).

121. Or some variation of it: Independiente Ltd v Music Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch D).

122. Or by noting that a principle was undermined by the rule, without considering whether the purpose the principle served was nevertheless adequately protected.

123. CPR 1.1(2)(b).

124. See CPR 1.1 (2)(d) and (e).

125. See above n 9.

126. Huntingdon v SHAC No 2 [2004] EWHC 1231 (QB) at [55].

127. ‘Cannot I say,…, of human laws, that where mystery begins justice ends?’, E Burke A vindication of natural society: or, a view of the miseries and evils arising to mankind from every species of artificial society. In a letter to Lord By a late noble writer (London: sold by the booksellers, in town and country, 1756) p 28.

128. J Raz ‘Legal Principles and the Limits of Law’ (1972) 81 Yale LJ 823 at 841; J Raz ‘The Rule of Law and its Virtue’ (1977) 93 LQR 195 at 198–199; Marshall, above n 26, pp 82–84; de Q Walker, above n 18, pp 21, 25.

129. [1990] 1 WLR 1370 at 1371–1372, [1991] 1 WLR 607 referring to the 1962 rule, and noting that its wording indicates that those represented are not ‘party’ to the proceedings. Similarly, see now CPR 19.6(4).

130. In The Irish Rowan [1991] 2 QB 206 at 245, Purchas LJ thought that the 1962 rule could support an application to be discharged from the class, although whether this was dependent on the court's discretion was not made clear. There is a change in the relevant wording in CPR 19.6(1) but as it permits a claim to be begun, or continued, ‘by or against one or more of the persons who have same interest as representatives of any other persons who have that interest’, it may also support an application for exclusion from the represented class (emphasis added).

131. More detailed examination of these features of the rule is beyond the scope of this article.

132. Andrews, above n 18, pp 118–119.

133. J Seymour ‘Who can be Harassed? Claims against animal rights protestors under section 3 of the Protection from Harassment Act 1997′ (2005) 64 CLJ 57. See also Hall v Save Newchurch Guinea Pigs (Campaign) [2005] All ER (D)301 (Mar) at [5]-[6], [44]-[57]. The Church of Jesus Christ of Latter Day Saints v Price [2004] EWHC 3245 (QB) is not concerned with animal rights protestors but is in a similar vein.

134. The issues of costs and funding also pose a significant constraint on the viability of representative claims. For comprehensive discussion of the statutory responses in other common law jurisdictions, see Mulheron, above n 116. Mulheron, above n 7, suggests that resistance to the introduction of a statutory regime is based on unwarranted emphasis on ‘the “extremes” of US-style class action’: at 40, 58–67.

135. John v Rees [1970] Ch 345 at 370.