Class Actions Comparative Guide

• Published date: 02 May 2023
• Subject Matter: Litigation, Mediation & Arbitration, Class Actions, Trials & Appeals & Compensation
• Law Firm: Higgs & Johnson
• Author: Mr Audley Hanna, Jr. and Fola Swain

1 Legal framework

1.1 Is there a dedicated class action regime in your jurisdiction? If not, how is collective action typically brought?

The Bahamas does not have a dedicated class action regime. Further, there is no provision within Bahamian law for the bringing of class actions in the classic sense. Rather, Bahamian legislation provides for what are known as 'representative actions'.

Representative actions are, in many ways, similar to class actions and may be brought by one or more individuals on behalf of a number of other individuals where it can be established that the persons bringing the action have the same interest in those proceedings. A judgment given in such an action will be binding upon all of the individuals represented.

1.2 Do any special regimes apply in specific sectors?

Class actions are not available in The Bahamas per se. As it relates to representative actions, there is no separate legislative regime which governs different sectors and rules related to representative actions apply generally to all sectors.

1.3 Are the courts in your jurisdiction generally considered sympathetic to class actions?

Representative actions are relatively rare in The Bahamas and most of the case law in relation to the same concerns procedural as opposed to substantive matters. However, there is nothing to suggest that the courts of The Bahamas would treat a representative action in a manner which is distinct from the manner in which they treat any other action.

2 Parties

2.1 Who has standing to bring a class action in your jurisdiction?

Any individual may bring a representative action, provided that he or she can establish that:

• the persons represented by him or her share the same or similar interest in the subject matter of the claim;
• the interest in question existed at the time that the litigation was commenced; and
• the relief being sought is likely to be equally beneficial to all members represented.

2.2 Can representative bodies bring class actions in your jurisdiction? If so, which bodies may do so and what is the applicable procedure?

Yes, representative bodies can commence an action within The Bahamas. This is generally done by trade unions or unincorporated associations; however, it may be done by any body of individuals who share a common interest in the litigation. In such cases, the organisation must establish that the individuals who are represented have the same interest in the claim.

The procedure for any type of representative action is commenced by filing and serving an originating summons or a writ of summons on the relevant parties.

2.3 Can parties outside the jurisdiction be members of a class action? What requirements and restrictions apply in this regard?

Foreign nationals are permitted to be represented in a representative action as they are afforded full rights in Bahamian legal proceedings.

There are no requirements or restrictions in this regard, save that the foreign party has a common interest as the person suing in the representative capacity.

2.4 Which parties may be the target of a class action? Can parties outside the jurisdiction be the target of a class action? What requirements and restrictions apply in this regard?

Any party may be the target of the representative action. The only consideration is that the parties represented have a similar interest in the litigation.

The local legislation does not contemplate parties outside of the jurisdiction being made the subject of a representative action per se. However, to the extent that it may be possible, a representative action would be available against a party outside of the jurisdiction on the same basis that any individual could bring a similar action. Most likely such an action will arise where the act or omission has taken place in The Bahamas.

2.5 Do class actions proceed on an opt-in or opt-out basis?

A representative action is brought in the specific name of an individual or smaller group of individuals and will be deemed to be brought by all of the individuals unless such any given individual is expressly excluded. This would tend to suggest that such actions are on an opt-out basis, as it appears that the party bringing the proceedings will have determined the individuals whom he or she is entitled to represent prior to commencing proceedings, and that the onus will be on expressly excluding persons rather than including them. However, this is not expressly clear from the wording of the legislation.

3 Forum

3.1 In what forum(s) are class actions heard in your jurisdiction?

Representative actions are usually heard in the Supreme Court of The Bahamas at first instance. In the particular case of employment disputes, there may be instances where it may be argued that the Industrial Tribunal may be appropriate; however, the legislation which establishes the right to bring representative actions is not directly applicable to the Industrial Tribunal. Certainly, where there are employees who are members of a union, the union may bring an action in the Industrial Tribunal where appropriate on behalf of its members.

3.2 Who hears class actions in your jurisdiction (eg, judges or juries)?

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