New Zealand
Answer ... In New Zealand, limitation periods are generally prescribed under the Limitation Act 2010 and some specific statutes. These general time limits apply to all civil proceedings, including representative actions. Limitation periods stop running when a proceeding is commenced. Representative actions must be commenced before the relevant limitation periods applicable to the representative plaintiff (and class members) expire.
The most common applicable limitation period is for ‘money claims’, which are claims for monetary relief at common law, in equity and under an enactment. Such a claim must be brought within six years of the alleged civil wrong (Limitation Act 2010, Section 11). Various other limitation periods apply for other types of specific claims.
The lack of a statutory class action regime has led to some uncertainty as to how limitation periods apply to class members, given that those persons do not themselves technically file a statement of claim to commence a representative action.
The Supreme Court considered this issue in Credit Suisse Private Equity v Houghton [2014] NZSC 37, [2014] 1 NZLR 541, with the majority holding that time stops running when a statement of claim for a representative action is filed; and that this applies both to the representative plaintiff and class members at the time and to potential class members. To combat this, defendants in representative actions will often seek an order from the court that any persons that wish to opt in must do so by a deadline.
New Zealand
Answer ... Most overseas class action regimes require a court to consider and approve that the claim may proceed as a class action. This process is generally known as certification. Currently, Rule 4.24 of the High Court Rules (HCR) does not require certification per se and provides that such an action can be commenced either:
- with the consent of all class members with the same interest in the subject matter of the proceeding; or
- as directed by the court on an application by a party (or intending party).
The second option above is similar to a certification requirement and if such an application is made (which is rare), the court will consider whether the parties have sufficient common interest in the resolution of any question of law or fact arising in the proceeding. The applicant must also provide the court with a written outline as to how the representative action will be conducted. The court will consider the impacts of this practical litigation plan on the defendant(s) and consider expedition and appropriate use of judicial resources to decide whether to make an order a representative order.
New Zealand
Answer ... As noted in questions 2.1 and 4.2, the formal requirements for bringing a representative action are found in HCR Rule 4.24 and the common law developed by the courts as to the flexible interpretation of that rule.
New Zealand
Answer ... If the requirements of HCR Rule 4.24 are met, as detailed in questions 2.1 and 4.2, the representative plaintiff will usually proceed to file:
- a notice of proceeding;
- a statement of claim detailing the nature of the claim(s) and the relief sought;
- an interlocutory application for leave to bring a representative action and for approval of a litigation funder and litigation funding agreement (if, as is common, a litigation funder is involved); and
- affidavits in support of the interlocutory application for leave (including, usually, from the representative plaintiff and the litigation funder).
New Zealand
Answer ... The process of notifying potential class members differs depending on whether the court adopts an opt-in or opt-out approach.
The HCR do not specify how notice should be given; but the court in Ross v Southern Response [2021] NZHC 2452 (at [30]) noted that the objective is “to find the most economical means of ensuring that [class members] are informed of the proceeding and their rights”. The court directed that notice be given to potential class members by publication in four newspapers, publication on Facebook, by post and by email.
With an opt-in approach, the representative plaintiff typically advertises for potential class members to join the claim by filling in a form and agreeing to the terms of a funding agreement and a legal services agreement. Generally, the courts will direct that class members must opt in to a representative action by a certain date; if they fail to do so, they cannot join the claim.
With an opt-out approach, class members are part of the representative action class by default unless they take positive steps to remove themselves by a certain date. The representative plaintiff must usually give adequate notice to members, explaining their right to opt out and not be bound by the court’s determination. There are also other practical difficulties with an opt-out approach, as class members will not necessarily know the terms of, or agree to, a litigation funding agreement and a legal services agreement.
New Zealand
Answer ... If a representative claim is filed in New Zealand and New Zealand is the most appropriate venue for the legal claim, then subject to any forum non conveniens issues, the New Zealand courts have jurisdiction over the representative action.
New Zealand
Answer ... See question 4.6.
New Zealand
Answer ... HCR Rule 5.45 allows the court to order a plaintiff (including a representative plaintiff) to pay security for costs if:
- it is just; and
- either:
-
- the plaintiff is not resident of or, if a company, is not incorporated in, New Zealand; or
- there is reason to believe it would be unable to meet any adverse costs order.
Where the court orders that security be posted, the plaintiff must pay that sum to the court or provide security by other means to the court or court registrar’s satisfaction. The court may stay the proceeding until the sum is paid or the security is given.
More specifically, with representative actions, despite HCR Rule 5.45, the court has inherent jurisdiction to order a litigation funder to post security even if the representative claimant is resident in New Zealand (Saunders v Houghton [2009] NZCA 610, [2010] 3 NZLR 331 at [35]-[36]). Such security will usually be reasonably full and include disbursements. A security for costs application in a representative action also gives the defendant(s) the opportunity to obtain disclosure of any litigation funding arrangements in place, as that is relevant to the defendant’s likely recovery of adverse costs should it successfully defend the representative action.