Thailand Civil Procedure Code-Section 222/14-222/34

PART III
CLASS ACTION TRIAL

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Section 222/14.190 When the order permitting for a class action has become final, the court shall order the plaintiff to deposit expenses for the class action  with the court in an amount as the court sees fit within seven days from the date of issuance of such court’s order. In the case where the plaintiff fails to comply with such order and does not notify the court of the reason for such failure, the court shall issue an order cancelling the class action and continue the proceedings as an ordinary case.

If it subsequently appears that the expenses deposited are not sufficient, the court may order for additional expenses to be deposited in an amount as the court sees fit. In the case where the plaintiff fails to comply with such order and does not notify the court of the reason for such failure, the plaintiff shall be deemed to have abandoned his or her plaint.

Section 222/15.191 The court shall serve a notice of the order of permission for a class action on members of the class to the extent known and publish the same in a daily newspaper widely circulated for three consecutive days, including via any other mass media or by any other method as the court sees fit.

The notice and publication shall at least contain the following particulars:

1. The name of the court and case number;
2. The names and addresses of the parties and of the counsels of the plaintiff;
3. The brief statement of the plaint and clear characteristics of the class of persons;
4. The content showing that the court has permitted the class action and the day, month and year in which the court issues such order;
5. The rights of the members of the class under section 222/16 and section 222/17;
6. The determined days for the members of the class to notify their wishes to opt out of being a member as the court sees fit, but not less than forty-five days;
7. The consequences of opting out of being a member;
8. The consequences of the judgement which shall be binding on the members of the class;
9. The name and position of the judge issuing the notice and publication.

Section 222/16.192 A member of a class shall have the right to opt out of being a member by notifying his or her wish in writing to the court within a period of time prescribed by the court under section 222/15 (6), and it shall be deemed that such member of the class is not a member from the date on which his or her wish is notified to the court.

After the lapse of the period of time under paragraph one, members of a class may not opt out of being a member unless permission is obtained from the court. The order of the court shall be final.

The person who has opted out from being a member of a class may not apply for opting back in to become a member of the class.

Members of a class and the persons who have opted out of being a member may not interplead as a joint plaintiff in the class action by virtue of section 57.

Section 222/17.193 A member of a class who does not opt out of being a member under section 222/16 shall have the following rights:

1. To attend to hear the trial of the case;
2. To apply to the court for issuance of an order declaring that the plaintiff does not have the qualifications, the interests, including the acquisition of the right to be a member of the class as provided by section 222/12 (5);
3. To request to examine or make copies of all or parts of the documents in the file;
4. To appoint a new counsel to conduct the case in lieu of the counsel for the class under section 222/19, paragraph two;
5. To apply to substitute the plaintiff by virtue of the provisions of this Part;
6. To object to the application to substitute the plaintiff under section 222/25, the withdrawal of the plaint by the plaintiff under section 222/28, the agreement or compromise on the issues of the case under section 222/29 and the agreement by the parties to submit a dispute to arbitration for decision under section 222/30;
7. To examine  and  challenge  requests  for  receiving  performance under section 222/40.

Members of a class may appoint a counsel to take actions under paragraph one.

Section 222/18.194 A member of a class who does not opt out of being a member under section 222/16 shall be prohibited from filing a case against the defendant on the same matter as that filed by the plaintiff.

In the case where any member of a class who does not opt out of being a member files a case before the expiration of the period of time for opting out of being a member of the class, the court accepting such case shall issue an order of disposal of the case from the case list.

Section 222/19.195 In the case where a class action will not sufficiently protect or benefit the members of the class or it is no longer necessary to conduct a class action, when this fact appears to the court itself or from the statement of either party, the court shall have the power to order cancelling the class action and continue the proceedings as an ordinary case. The proceedings which have already been conducted shall be deemed to continue to be binding on the ordinary case of the plaintiff and the defendant.

If it appears to the court during the trial that the counsel of the plaintiff is unable to conduct the case in such a way that sufficiently and justly protects the rights of the class of persons or if the counsel of the plaintiff requests to withdraw himself or herself from the class action, the court may issue an order for the plaintiff and the members of the class to procure a new counsel in replacement to conduct the case within a period of time prescribed by the court. If the plaintiff and the members of the class fail to carry out such act, the provision of paragraph one shall apply, mutatis mutandis.

The order of the court under this section shall be final.

Section 222/20.196 When the court has already issued an order of permission for a class action to proceed and the defendant has filed his or her answer, the court shall determine the date for a pre-trial conference by ordering all parties to appear before the court in order to proceed with the following:

1. Conciliation or application of arbitration procedures in order to finally settle the case in whole or in part;
2. The parties to produce to the court the originals of all documentary or material evidence, which is intended to be relied on and in their possession that can be brought to the court, for inspection by the court and the opposing party;

if such evidence is  in the possession of the other party or a third party, the party wishing to rely on such evidence shall request the court for an order calling for such evidence from the possessor by filing the request with the court, together with the filing of the list of witnesses and evidence, in order to  obtain such evidence before the date of the pre-trial conference.

In the case of any interruption preventing the party from bringing the evidence in his or her possession or from obtaining the evidence called from the other party or a third party by the court order or where there is any other necessity, if the court sees fit, it may postpone the date of the pre-trial conference as it sees fit.

If any party willfully refrains from carrying out the above act on the date of the pre- trial conference or another date to which the court postpones, such party shall not have the right to adduce such evidence at a later date. However, if the court finds that, for the purpose of justice, it is necessary to take important evidence concerning any material issue of the case in violation of the provision of this subsection, the court shall have the power to admit such evidence.

3. The court shall examine the pleadings and statements of the parties and then compare the allegations and contentions appearing in the pleadings and statements of the parties and ask all parties about the allegations, contentions and evidence filed with the court, in particular, whether and how any party admits or disputes such allegations and content Any fact admitted by the parties shall be conclusive accordingly. With regard to a point of law or fact raised by a party but is not admitted by the other party and is directly relevant to the issues in dispute in the pleadings, the court shall set it as a point of issue and direct any party to adduce evidence to prove any issues in any order of sequence.

In the questioning of the parties, each party must answer questions put to him or her by the court itself or at the request of the other party, about facts raised by the other party as allegations, contentions and evidence filed with the court. If any party does not answer the question related to any fact or denies any fact without a clear reason, he or she shall be deemed to admit such fact unless the court views that such party is not capable of providing an answer or a clear reason for such denial at such time and such fact is necessary for the determination of the issues in dispute, in which case the court may issue an order for the date of the pre-trial conference to be adjourned only for the incomplete part and for such party to prepare and file a statement in relation to such fact with the court within a period of time as the court sees fit.

4. Determination of the overall time period in the class action;

5.  Determination of the necessary dates, times, methods and processes in the class action, such as the number of and the details concerning witnesses to be examined, the record of statements in lieu of examination of oral evidence, expert witnesses, documentary evidence and evidence intended for the court to call from the opposing party or from a third party, including scientific test, field examination and transfer of points of examination to other courts;

In the case where either party does not appear before the court on the date of the pre-trial conference or another date to which the court postpones, the court shall proceed as provided in this section and the party not appearing before the court shall be deemed to have acknowledged the actions carried out on that date and such party shall not be entitled to request for postponement of an appointment or object to the issues in dispute and burden of proof as directed by the court, unless there is unavoidable necessity for such inability to appear in the court on the date of the pre-trial conference or another date to which the court postpones or the objection is made against the issue in dispute which involves public order.

When the court has completely proceeded under this section, the court shall determine the date of taking evidence which shall not be earlier than ten days from the last date of pre-trial conference.

The first day of the pre-trial conference under this section shall be deemed to be the date of settlement of issues under this Code.

Section 222/21.197 No less than fifteen days before the date of a pre-trial conference under section 222/20, the parties shall file a list of witnesses and evidence with the court together with a sufficient number of copies of such list for other parties to receive the same from a court officer, and if any party wishes to file a supplementary list of witnesses and evidence, it shall be filed with the court before the completion of the proceedings to be conducted on the date of the pre-trial conference.

The filing of a supplementary list of witnesses and evidence after the lapse of the period of time under paragraph one may be made only when permission is obtained from the court when the applicant demonstrates, with valid reason, that he or she was not aware of the evidence concerned or where it is necessary for the purpose of justice or in order for the parties to be provided with a full opportunity to defend their cases.

Section 222/22.198 In the case where the defendant is in default of answer or in default of appearance, the court may not render a judgement or order adjudicating in favour of the plaintiff due to the defendant’s default of answer or default of appearance. In this regard, the court shall take the evidence of the plaintiff ex parte and the court may call for other evidence to be taken itself as it thinks necessary for the purpose of justice.

If the plaintiff fails to produce evidence as provided in paragraph one within a period of time prescribed by the court or in the case of both parties’ or the plaintiff’s default of appearance, the provision of section 222/25 shall apply.

In addition to those already provided for in paragraph one and paragraph two, the provisions governing procedure in case of default shall apply, mutatis mutandis.

Section 222/23.199 In the trial and adjudication of the case, for the purpose of justice, the court shall have the power to conduct a search for further facts. In this regard, the court may hear oral evidence, documentary evidence or any evidence other than the evidence of the parties, but all parties shall be informed and the parties shall not be precluded from rebutting such evidence.

The court may request for qualified persons or experts to give opinions in support of the trial and adjudication, but all parties shall be informed and the parties shall not be precluded from requesting to call his or her qualified persons or experts to give any dissenting opinions or to supplement the opinions of such qualified persons or experts.

The persons requested to appear by the court under paragraph one and paragraph two shall be entitled to receive commissions, travelling expenses, accommodation expenses and reimbursement of expenses incurred in accordance with the Regulations of the President of the Supreme Court with the approval of the Judicial Administration Commission, and the money ordered to be paid by the court under this paragraph shall not be deemed to be a cost for a class action payable by the parties.

Section 222/24.200 Irrespective of whether the trial of the case has been proceeded at any stage, the court may issue an order for the class to be divided into sub-classes because of the different characteristics of the damages between persons in the class. In such case, the court may also order for a clear examination of the damages of the sub-classes. The order of the court shall be final.

Section 222/25.201 In the following cases, the court shall determine the days as it sees fit, but not less than forty-five days, for the members of the class to file a request to substitute the plaintiff, including the date for the filing of an objection to the request to substitute the plaintiff, the date of examination of the request to substitute the plaintiff, and shall serve a notice of the same on members of the class to the extent known and also publish it by a method as it sees fit:

1. when the plaintiff does not have the qualifications as provided in section 222/12 (5);
2. when the plaintiff dies or becomes an incapacitated person;
3. when the court issues an order of receivership against the plaintiff;
4. when the plaintiff abandons the plaint;
5. when both parties or the plaintiff is in default of appearance;
6. when the plaintiff fails to produce evidence under section 222/22;
7. when the plaintiff applies to the court that he or she no longer wishes to be a plaintiff for the class action.

In the case of (2), in addition to the members of the class, the persons under section 42 or section 45, as the case may be, may apply to substitute the plaintiff and section 222/26 and section 222/27 shall apply, mutatis mutandis.

Section 222/26.202 In considering permitting a member of the class to substitute the plaintiff, the court must be satisfied that such member of the class has the qualifications as provided in section 222/12 (5).

If the court permits a member of the class to substitute the plaintiff, the original plaintiff shall remain the status of a member of the class and the counsel of the original plaintiff shall remain the class counsel. In the case of section 222/25 (5) and (6), the court shall promptly determine a new date of taking evidence. If the court does not permit a member of the class to substitute the plaintiff or there is no application to substitute the plaintiff, the court shall issue an order cancelling the class action and continue the proceedings as an ordinary case. The proceedings which have already been conducted shall be deemed to continue to be binding on the ordinary case of the plaintiff.

The order of the court under this section shall be final.

Section 222/27.203 The member of a class who substitutes the plaintiff under section 222/25 shall not exercise any rights other than those held by the plaintiff during the trial stage when he or she applies for the substitution and shall not exercise those rights in a way that conflicts with the rights of the original plaintiff, except where the court is satisfied by a motion of the member substituting the plaintiff that the  plaintiff’s  proceedings  already  conducted, which have caused damage to the members of the class, were carried out willfully or by gross negligence by the plaintiff. In such a case, for the purpose of justice, the court may issue any order as it sees fit.

Section 222/28.204 When the court has already issued an order of permission for a class action to proceed, the plaintiff may not withdraw the plaint unless permitted by the court.

In the case where the defendant has already filed his or her answer, the court shall not permit withdrawal of the plaint without prior hearing of the defendant.

In the case where the notice and publication have already been made to the members of the class under section 222/15, if the court is to issue an order permitting withdrawal of the plaint, the court shall determine the days as it sees fit, but not less than forty-five days, for the members of the class to raise and file the objection in writing with the court and order the plaintiff to deposit the expenses with the court, as well as notify the withdrawal of the plaint to the members of the class by the same methods provided in section 222/15, paragraph one.

In the case where the plaintiff fails to deposit the expenses with the court under paragraph three without notifying the court of the reason for such failure, the court shall issue an order not permitting the withdrawal of the plaint.

Section 222/29.205 When the court has already issued an order of permission for a class action to proceed and the period of time under section 222/15 (6) has elapsed, before the court permits any entering into an agreement or compromise on the issues of the case, the court shall determine the days as it sees fit, but not less than forty-five days, for the members of the class to raise the objection or to notify their wishes to opt out of being a member of the class in writing to the court and order the plaintiff to deposit the expenses with the court for the notification of the agreement or compromise on the issues of the case to the members of the class by the same methods provided in section 222/15, paragraph one. When the court issues an order permitting the entering into the agreement or compromise on the issues of the case, the member of the class who notifies his or her wish to opt out of being a member of the class and who does not withdraw such wish before the court issues such order of permission, shall be deemed not to be a member of the class from the date of issuance of such court’s order.

In the case where the plaintiff fails to deposit the expenses with the court under paragraph one without notifying the court of the reason for such failure, the court shall issue an order not permitting the entering into the agreement or compromise on the issues of the case.

Section 222/30.206 When the court has already issued an order of permission for a class action to proceed and the period of time under section 222/15 (6) has elapsed, before the court permits the submission of the dispute to arbitration for decision in accordance with the provisions of this Code governing arbitration, the provision of section 222/29 shall apply, mutatis mutandis.

Section 222/31.207 The notice and publication under section 222/28, section 222/29 and section 222/30 shall at least contain the following particulars:

1. The name of the court and case number;
2. The names and addresses of the parties;
3. The brief statement of the plaint and clear characteristics of the class of persons;
4. The brief statement of the proceedings already conducted and the reasons for issuance of the notice and publication;
5. The rights of the members of the class and the consequences of the order of permission of the court under section 222/28, section 222/29 or section 222/30, as the case may be;
6. The consequences of opting out of being a member of the class under section 222/29 or section 222/30, as the case may be;
7. The name and position of the judge issuing the notice and publication.

Section 222/32.208 In considering issuing the order under section 222/28, section 222/29 or section 222/30, the court shall take into account:

1. the necessity of continuing the class action;
2. the protection or benefits of the members of the class;
3. the complication or practicality in continuing the class action;
4. fairness and efficiency in continuing the class action;
5. the number of objecting members of the class;
6. the ability of the defendant to pay the damages in the case where there is an agreement or compromise on the issues of the case;
7. the parties’ agreement or compromise on the issues of the case is just and beneficial to the members of the class.

Section 222/33.209 In the case where the court issues a final order of permission for a class action to proceed, the period of prescription for the members of the class to file the case shall be interrupted from the date on which the plaintiff files a motion for the class action to proceed.

In the case where the court issues a final order not permitting the class action, if it appears that the period of prescription for the members of the class to file the case has expired during the period of consideration of the motion for a class action or is due to expire within sixty days as from the date on which the court issues such final order, the members of the class shall be entitled to file the case in order to establish the right of claim or for receiving performance within sixty days from the date on which the court issues the final order.

Section 222/34.210 In the case where a period of prescription is interrupted by the cause under section 222/33, the prescription shall be deemed not to have been interrupted in the following cases:

1. The court renders a final judgement for a dismissal of the case;
2. The court issues an order cancelling the class action;
3. The court issues an order to dispose of the case due to withdrawal of the plaint;
4. The court dismisses the plaint because the case is not within the  court’s jurisdiction or without precluding members of the class from re-filing the case;
5. Members of the class opt out of being a member under section 222/16, section 222/29 or section 222/30.

In the cases of (2), (3), (4) and (5), if it appears that the period of prescription for the members of the class to file the case has expired during the period of trial or is due to expire within sixty days as from the date on which such judgement or order becomes final, the members of the class shall be entitled to file the case in order to establish the right of claim or for receiving performance within sixty days from the date on which the judgement or order becomes final or from the date on which the members of the class are not members of the class, as the case may be.

The provision of paragraph two shall apply in the case where a request for receiving performance of any member of the class is rejected for the reason that he or she is not a member of the class according to judgement because the court renders the judgement by specifying the unique characteristics of the class to be different from the unique characteristics of the class permitted for the class action as ordered by the court under section 222/12, paragraph two. The right to file the case shall arise from the date on which the order rejecting the request for receiving performance has become final.

Unofficial Translation Chaninat and Leeds Ltd. Thailand Divorce Lawyers

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