The class action as sheriff: private law enforcement and remedial roulette

Abstract

In a recent conference paper,1 Jeff Berryman expressed dismay about the “piecemeal” undermining of the compensation principle. The compensation principle requires that the plaintiff should as nearly as possible get the sum of money that will place him in the same position as if he had not suffered a wrong.2 Berryman argues that the principle has occupied a central position in modern private law “as a justification for who (victim) is allowed to commence an action in court, and for what (compensation), and as a limiting mechanism on the limits of what courts may justifiably do. But its justificatory and limiting roles are becoming frayed.”3 He describes the demise of the principle as “death by a thousand cuts”. Some of the deepest cuts have been inflicted by the modern class action. In this essay I will explore the effect of developments in class action law and practice upon remedial law, and investigate the state of health of the compensation principle. My focus will be upon class actions in Australia, Canada, and the US, in descending order. I will concentrate on compensatory, and to a lesser extent restitutionary remedies; leaving discussion of punitive, exemplary and treble damages for another occasion. Show more