Justice Enhanced: Framing an Opt‐Out Class Action for England

Abstract

This article contends that the absence of an opt‐out class action remains a yawning gap within English civil procedure. Various recent reform proposals have favoured opt‐in procedural vehicles as the way forward. However, key features of these proposals – an opt‐in approach and the use of a representative claimant – are subject to considerable reservations in jurisprudence from both England and elsewhere. Following a critique of these features, the article proposes that an ‘opt‐out regime with brakes’ should be introduced, taking into account both the requirement for proportionality under the Civil Procedure Rules, and the invaluable lessons provided by the established Commonwealth statutory class actions regimes.