Readers in the USA and Australia will be more than familiar with the thriving class action scenes in their home countries, and others may have read much recently about EU Member States being about to join the party via the Representative Actions Directive. Which begs the question, where does this leave the UK?
The short answer is yes. In fact, we already have a large slice. A recent report identified that 48% of all class action filings across Europe between 2018-2022 were made in the UK and had a total combined value of more than £100 billion. The shape, size and subject matter of these cases, however, has evolved significantly over the last 5 years, as claimants have hit a variety of procedural roadblocks forcing them to get more creative in their pursuits.
The English Civil Procedure Rules (CPR) provide for two formal mechanisms by which collective actions can be brought. The first of these is a representative action brought under CPR 19.6, which can be brought either as an opt-in or an opt-out action. Prior to 2021, however, this mechanism was little-used due, in part, to the narrow manner in which the courts historically interpreted a key requirement, being that the representative had to demonstrate that he/she had “the same interest” as everyone else in the class. 2021 proved a turning point, when the Court of Appeal in the much talked-about Lloyd v Google case took a less restrictive approach. This was a data protection claim, and the Court of Appeal’s decision led to a flood of copycat actions being issued – and then quickly stayed pending Google’s appeal to the Supreme Court. Which, for reasons which turned partially on the “same interest” test, overruled the Court of Appeal, and led to the death of most copycat claims as well.
The second mechanism, a Group Litigation Order, is not a true class action route, but rather a means for the court to manage together large numbers of cases with “common or related issues of fact or law”. They can only be used where each and every claimant opts into the litigation, and so…
Mar 01 2024