GROUP LITIGATION: CLAIMANT: An Introduction to UK-wide

Chambers Practice Area Overview

UK-wide: Group Litigation: Claimant 

Claimant group litigation is primarily the means through which consumers can seek redress against large corporate defendants, coming together using several procedural mechanisms available to bring claims which would be uneconomic to pursue on an individual basis. It is, in keeping with its recognition for the first time as a stand-alone practice area in Chambers this year, generally speaking becoming more widespread in the UK and more professionalised. This is largely due to three factors: the increase in actionable defendant behaviour (sometimes the result of legislative change, regulatory findings or European case law); the availability of litigation funding to support these claims; and the rise of specialist law firm practices to bring these claims.

Firms like Leigh Day and Edwin Coe have been active in this space for decades, pursuing some of the largest collective actions on behalf of tens of thousands of claimants. In recent years, firms such as Milberg London, Harcus Parker and Keller Postman have established specialist group litigation practices and are involved in some of the most significant cases in this field. Firms like Stewarts, Slater & Gordon and Irwin Mitchell are also known for bringing group claims on behalf of large numbers of claimants, primarily in relation to product liability and personal injury matters. Mishcon de Reya has also been involved in numerous group actions led by partners across its other practice groups.

Historically, some of the largest of these firms have specialised in vicarious liability cases, seeking justice for claimants in the English courts where an English plc may be responsible for conduct of a subsidiary in another jurisdiction. A relatively recent entrant to the market, Pogust Goodhead, has secured a significant victory before the Court of Appeal in the Fundão Dam case, a group action on behalf of over 200,000 claimants arising out of a Brazilian dam collapse in 2015. Ensuring that there is a continued place for such cases before the English courts, the Court of Appeal overturned a November 2022 High Court decision which had held that the claims would be unmanageable and lead to chaos due to litigation in both England and Brazil. The Court of Appeal found that the English proceedings were not interfering with any redress sought in Brazil and the remedies available in that jurisdiction were not so obviously adequate that it would be pointless to pursue proceedings in this jurisdiction. Subject to further appeal, it seems that claims against multinational companies for environmental degradation, catastrophic events and other conduct affecting local communities around the world may continue to be litigated in the English courts for some time to come.

Consumers continue to have recourse to claimant group litigation to seek redress for the infringement of important civil rights such as equal pay and workplace discrimination. Leigh Day has recently secured significant victories for Uber and ASDA employees in the Supreme Court. Further, there are numerous claims currently proceeding where a large number of consumers have been affected by the same conduct or product such as data breaches, the mis-selling of financial products, diesel vehicle emissions, tax schemes allegedly misrepresented to investors, pharmaceuticals, medical devices and mortgage deals.

As well as individuals, large groups of businesses have also been affected and sought relief collectively following widespread business interruption resulting from the COVID-19 pandemic. Securities litigation is also on the rise, with claimant firms representing pension funds, asset managers, shareholders, sovereign wealth funds and large institutional investors following share price drops where there has been inadequate disclosure and transparency by a public company.

Of course, the other means by which large groups of consumers obtain collective redress from corporate defendants is through the Competition Appeal Tribunal. Following the landmark decision in Merricks v Mastercard, there has been a significant increase in Collective Proceedings Order filings in the CAT and certifications for inclusion in collective proceedings. There are 25 ‘current’ collective proceedings cases in the CAT at the moment, at various stages. The most recent application to commence collective proceedings is the claim against Sony in relation to overcharging for digital gaming purchases on its PlayStation platform, led by Milberg London. Other yet to be certified claims arise from alleged anticompetitive behaviour around cryptocurrency exchanges, Apple batteries and merchant interchange fees.

Claimant group litigation is inextricably tied to the litigation funding market. These cases are all funded by firms, investors or dedicated litigation funders and not the claimants themselves, unlike more traditional commercial litigation, where clients pay their lawyers’ fees as the case progresses and are liable for the other side’s costs if the court so orders. In claimant group litigation, it is the firms, funders and after-the-event insurers which bear the risk in the event that cases are unsuccessful. Claimant law firms in this area must necessarily develop expertise in innovative funding solutions to support the claims they run. Third party funding, after-the-event insurance and bespoke fee arrangements are the tools necessary to get claimant group actions off the ground. As well as litigating the merits of the often complex underlying cases, claimant law firms must also understand these commercial elements and the detailed regulatory rules and case law which govern them.

Several predictions made at the time of procedural reforms permitting collective redress in the UK have not come to fruition, namely, the proliferation of spurious cases and carriage disputes between claimant law firms. Carriage disputes occur when claimant firms race to file group actions first and to be named as the lead solicitors in the Group Litigation Order and so have primary conduct of the proceedings. Learning lessons from the first VW group action, most claimant firms in the market work together, forming Steering Committees to cooperate and share information in order to progress and settle these claims as efficiently as possible.

In terms of future opportunities in this area, many predict that the COVID-19 pandemic will lead to an increase in group litigation in the areas of employee claims, consumer rights, supply chain disputes, data security, securities litigation and possibly also the public sector. Much commentary also predicts that environmental group actions might be on the rise where redress is being sought through the UK courts for damage caused to individuals in the UK and in countries across the world. This is an anticipated result of climate change and an increasing awareness of the environmental consequences of the actions of large corporations.

In the past decade, there has been increasing focus on improving claimant group litigation in the UK by lawmakers, the judiciary, legal practitioners, commentators and other stakeholders. Procedural reforms have attempted to bring about more effective mechanisms for the efficient management of these claims with varying degrees of success and many believe further reform is needed. Consistent with that objective and the increasing prominence and professionalisation of this sphere, earlier in 2022, the Collective Redress Lawyers Association (“CORLA”) was formed by leading UK law firms specialising in claimant group litigation: Edwin Coe, Hausfeld, Keller Postman, Leigh Day, Milberg London and Pogust Goodhead. With the stated aim of enhancing access to justice, CORLA seeks to establish a forum for specialist practitioners in this field to lobby for this reform, as well as sharing and advocating for best practice.