28 August 2008
The Consumer Case Procedure Act 2551 (2008) was approved by the National Legislative Assembly and will become effective on 23 August 2008 (the "Act").
The Act seeks to simplify the procedures and to reduce the cost for consumers wishing to file a plaint against business operators. It covers disputes between consumers and business operators regarding rights and duties under law and claims for injury/damage caused by unsafe products.
Under the Act, 'consumer' means a consumer under the law governing consumer protection and includes an injured party under the law governing unsafe goods. 'Business operator' is defined as a business operator under the law governing consumer protection and includes a business operator under the law governing for unsafe goods liability as well.
Filing a Plaint
A consumer, the Consumer Protection Board ("CPB") acting on the consumer's behalf or an association recognised by the CPB acting for its members as consumers may enter an action with the Court of First Ins tance against a business operator if there is a dispute involving rights or duties resulting from the consumption of goods or services or if the goods or services have caused damage.
The Act makes it possible for the consumer to file the plaint either in writing or orally.
If there is an injury to life, body, health or physical condition as a result of a substance accumulated in the body of the consumer or if it takes a considerable time for symptoms to appear, the consumer must file the plaint within three years of learning of the injury/damage and identifying the responsible business operator; or not later than ten years after the discovery of the injury/damage, where the business operator cannot be identified.
A consumer, the CPB or the association recognised by the CPB shall be exempted from all costs during the preliminary stages of the case unless the Court finds that the action was filed without reasonable grounds, the damages claimed are excessive or the consumer has behaved improperly.
Upon accepting the plaint, the Court shall quickly arrange a date for the trial and issue a summons for the defendant to appear for mediation, file an answer and the taking of evidence, etc. If no agreement can be reached during mediation, the matter shall proceed to trial.
A consumer needs only to prove the fact of injury or damage. It is not necessary to prove fault or negligence on the business operator's part. Whenever the dispute requires proof of facts relating to the manufacture, assembly, design, ingredients of the goods, rendering of services or any other facts known only by the business operator, the burden of proof shall fall on the business operator.
Before bringing an action, and during the trial, the plaintiff can apply for protective measures and a temporary injunction against the defendant.
In the interest of justice, the Court may adopt an inquisitorial procedure to the trial whereby the Court shall have the power to summon any witness on its own and as it deems fit. In taking evidence, whether from a witness presented by a party or summoned by the Court, mainly the Court shall examine the witness.
Judgment and Damages
A final judgment in a prior consumer case can be applied to a later consumer case if it involves the same defendant and facts. In such a case, the Court which promulgated the earlier judgment need not take any evidence for the new case, unless it finds that the facts in the previous case are insufficient or if it wants to give the parties an opportunity to adduce further evidence.
The Court has the power to impose liability on both manufacturers and importers even though only one or the other has actually been charged.
The Court has the power to adjust the amount of compensation if it appears unreasonably high or low. In cases where the actual extent of the damage cannot be gauged during the trial, the Court may reserve the right to amend its judgment provided it does so within 10 years from the promulgation of the original order/judgment.
In addition, punitive damages may also be awarded for deliberate violations or gross negligence. However, the amount of the punitive damages shall not exceed twice the amount of the actual compensation fixed by the Court.
A Consumer Case Section in the Court of Appeal has been established to hear appeals against judgments of the Court of First Instance. Appeals must be lodged within one month from the date the said judgment was pronounced. The judgment of the Consumer Case Section of the Court of Appeal is final. Only questions of fact in judgments involving amounts of more than Baht 200,000, or question of law, can be raised by an appealing party to the Supreme Court. The Supreme Court will permit appeals only if they are related to public interest or other important issues.
The new procedures facilitate the protection of consumer rights by making it easier to file an action and settle disputes. Consumers may now be encouraged to file suits that they would previously have shied away from. Business operators should carefully assess their business agreements and practices in order to minimise the risk of lawsuits.