This chapter explores the conundrum of what happens where government departments, employees and officials, and court officials, may be swept up within a class. Some legislatures in the Comparator Jurisdictions have sought to preclude this (potentially awkward) scenario by insisting that this type of governmental entity or individual must opt in to the class action. Others have not imposed that requirement, which has led to some interesting case law.

This chapter focuses upon the design of an opt-out class action. Not all design matters will be encapsulated in statute. Some will be contained in court rules, and some will not be included in legislation at all, but will be for case-by-case judicial precedent to establish in the courtroom. The chapter sets out a hundred design points, over the four stages of a class action: its commencement, its conduct, its ending via either settlement or trial, and the costs and funding issues that typically pertain to class actions litigation. By way of an illustrative case study, the chapter also cites several areas of class actions design in which the experiences garnered from over a quarter of century of Australian jurisprudence was useful for the lawmakers for the United Kingdom.

This chapter canvasses the frequency with which governments have been sued by their citizens and businesses, in the class actions context. Proceedings against the Crown have been permitted for several decades, but the size of these claims has become far greater (and of greater concern) to governmental defendants, where opt-out class actions are concerned. The types of scenarios in which government has been sued have illustrated a remarkable degree of overlap and similarity in both Australia and in Canada. The issue of ‘regulatory negligence’ is one particular claim which has not featured particularly successfully, given the requirements of the negligence cause of action in both comparator jurisdictions. However, it is undoubtedly the case that novel claims in tort against the government continue to be brought as class actions in both jurisdictions.