We’ve had a few interesting events over the last few weeks, some with potential legal fallout. First, we had the Census. It is compulsory to fill in your census form: you can be prosecuted and fined up to $500 (individual) if you don’t. During the build-up, I found it interesting that the government statistician emphasised the significance of the census data in assessing social needs and thus guiding health and welfare policy. This is of course correct. But how many of us have used census data in marketing? It’s a goldmine of data if you need to assess how well you are doing in targeting a local market, with age group breakdowns etc. For the first time I filled it in online. The form was completed in 12 minutes total. Brilliant.
Next, we had the announcement by an Australian law firm that it is spearheading a “billion dollar” claim against banks over their overdraft and default fees.
Now, as you’ve probably heard, you can’t do a true class action in New Zealand. A class action is a kind of “John Doe” action where the plaintiff is a notional person who belongs to a defined category of people, but the people in that category don’t have to be named. They get compensated if they present sufficient evidence after the judgment is given. And in the current case, the category would be described as people who have had overdraft and default fees deducted from their bank accounts over a particular period.
In New Zealand, plaintiffs have to be named, and have to give supporting evidence up-front, so no class actions. But what you can do is file a representative action. That looks like this: Jim Smith, first plaintiff and other plaintiffs named in a schedule v the defendant. That’s why the lawyers are asking everyone to opt in and sign up to the action, so they can name the plaintiffs. It will also give them an idea the number of dollars they are likely to be claiming. Oh, and the potential sum available for fees and litigation funding, of course.
I worked on a representative action many moons ago. This was in the very early days of the world wide web, so much of the work was paper and postage based. We organised our lead plaintiff, got details of other plaintiffs (about 2000 of them) and then had to collect their supporting evidence. No evidence, no compensation awarded. In the end, I think we shocked the other side by managing to get the evidence together. I had just completed my tax form, and so had the bright idea of setting up the supporting affidavits for each client as a standard form, sending them to the clients, getting them to swear the affidavits in their home towns and post them back to us. I had these 2000 affidavits in my office for some months, sitting around the walls in boxes. The case settled without going to court – great for all concerned but a pity in a more academic way, because a judgment on that particular case would have made a wonderful precedent.
In the bank fees case the initial collection of evidence will be much easier with the aid of web-based survey forms – just like the census. So it won’t be too hard for the lawyers on both sides to assess how much is involved, and whether it is worth settling the case or going to court on the key question – was there a breach of legal right anyway? Watch this space.
Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at firstname.lastname@example.org.