We might be forgiven for thinking that collective claims-making has arisen out of the massification of modern societies since the Industrial Revolution (1760– 1840). In setting the context for the Second Wave of the access to justice movement, Cappelletti and Garth pointed out that ‘modern societies are characterised by mass production, mass commerce and consumption, mass urbanization, and mass labour conflicts’ and mass litigation is a natural outgrowth of this broader social and economic massification. Critics of the class action, since the origins of its modern incarnation, have also been keen to portray it as a procedural innovation that threatens long-established legal norms and traditions, and perverts justice in the process. But the history is much richer than this perspective suggests.

From medieval origins to the 19th century

The class action has deep roots in group litigation dating back to post-Norman Conquest England. The eminent legal historian Stephen Yeazell has rooted the advent of group litigation to 1199, when a rector of a parish brought a claim against his own parishioners in the court of the Archbishop of Canterbury, seeking customary parochial fees for the burial of the parishioners’ deceased. In its earliest incarnation, group litigation involved both defendant and plaintiff groups and thus differed from the contemporary perception of such litigation as empowering vulnerable individuals to band together against powerful wrongdoers (although, in their contemporary form, class actions can also involve both groups). Social group structures pervaded the landscape of the period, and issues that animate our current debate over group litigation, such as the binding nature of such litigation on absent class members or the extent to which representation is compatible with individual rights and entitlements, were left out of the debate.

‘It would have made as little sense to medieval lawyers to ask about the litigative standing of communities’, observes Yeazell, ‘as it would to ask a modern lawyer why individuals can litigate’. Perhaps the most obvious distinction between the two is that the modern class action allows such individuals to form a single litigative entity in order to advance a claim on behalf of all, whereas the medieval incarnation simply allowed an individual to represent a group that already had legal standing.