Class Actions Radar: Thailand

The landscape

Class action proceedings were first introduced in Thailand in 2015 through the Civil Procedure Code.

Thai courts that are competent to try civil cases have the power to consider class action cases. A decision of the Court of First Instance to certify or decertify the class can be appealed. The decision of the Court of Appeal is final. After the courts determine whether a lawsuit should proceed as a class action or an ordinary civil case, the lawsuit advances to the merit stage.

Thailand's class action regime is generally plaintiff-friendly, offering a flexible vehicle for injured parties to seek redress as a group. Consumer-related claims are the most common, where large groups may seek compensation or remedies for harms suffered in relation to defective products. There is also a growing trend of securities class actions, environmental claims and shareholder class actions.

Judicial interpretation and discretion are an important feature of the landscape, given the relative infancy of class actions. Judges may handle cases differently based on circumstances, resulting in inconsistent outcomes.

Class actions in Thailand are viewed by courts as a vehicle to handle disputes involving a large number of individuals with small claims. While Thailand lacks a culture of third-party litigation funding, the Ministry of Justice has established a fund to aid low-income people in gaining access to justice. Organisations such as the Lawyers Council of Thailand Under the Royal Patronage, and the Thai Investors Association are working to promote public understanding of class action proceedings.

Current developments

To initiate a class action in Thailand, the plaintiff is required to file a specific motion for class certification.

This must provide reasonable grounds for the court to permit the class action to proceed.

Criteria include whether the plaintiff shares common issues of fact and law with other class members, which are sufficiently clear for the class to be acknowledged. The class must be so large that conducting the case in the ordinary way will be complicated and inconvenient. However, the minimum class size is not prescribed.

In Thailand, an opt-out rule is applied, enabling class members to be identified as part of the claim, without them having to give their consent. Each potential class member can express their intention to opt out of the class action without prejudicing their right to bring an individual action.

Various attempts at law reform have been considered that would prescribe clearer regulations and procedures for the Thai courts. One idea is to allow related associations to commence class action lawsuits, since these organisations may have more understanding of legal frameworks than individuals.

Future trends

Thailand is a jurisdiction where a defendant could be exposed to additional damages beyond the disputed amount claimed by the plaintiff.

Firstly, with the opt-out regime, the defendant could face a significant amount of damages, depending on the size of the class. Secondly, an unsuccessful defendant must pay a gratuity to the plaintiff's counsel (capped at no more than 30% of the amount awarded under the judgment). This gratuity will be in addition to the damages, and not to be deducted from damages entitled to the class members.

The practice of charging fees on a contingency basis is not permitted. Despite the absence of an explicit statutory prohibition, a line of Supreme Court judgments has established that such arrangements are contrary to public policy and consequently void under Thai law. In the same way, third-party litigation funders face difficulty in this market. Herbert Smith Freehills Kramer does not envisage significant change in this area in the next couple of years.

In terms of type of class actions disputes, we anticipate an increased focus on shareholder and security class actions as public awareness has developed considerably, mostly through high-profile disputes in the media.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.