GROUP LITIGATION: An Introduction

Fundamentally, group actions are about procedures for progressing together several claims giving rise to similar issues. As such, they are capable of being deployed across a wide range of practice areas. Techniques for the management of large numbers of claims were originally developed in the context of transport disasters and medical product liability. From the mid-1990s onwards, group litigation techniques were brought to bear more widely, particularly in litigation arising out of financial and environmental issues. More recently, data protection has been a growth area for group actions.

The formal group litigation orders (GLOs) made over the last five years give a flavour of activity in this sector. These include claims in relation to the Essure contraceptive device, Nigerian oil spills, dust from Port Talbot steelworks, odour from a Derbyshire composting facility, and alleged toxic discharge from a Zambian mine. Most recently, in the course of 2023 and 2024, GLOs have been made against almost every vehicle manufacturer in relation to NOx emissions; this is a second wave of claims following the 2018 “Dieselgate” action. The emissions GLOs are being managed together in large “Pan-NOx” case management hearings. Practitioners should note that there is substantial group actions activity beyond these formal GLOs, as parties will often adopt court-ordered group structures falling short of a full GLO, as has happened with military noise deafness claims.  

In this jurisdiction, multiparty litigation has traditionally been “opt-in”, that is to say, a claimant must individually take the decision to opt into the litigation. In 2015, the gates were opened for “opt-out” litigation in the Competition Appeals Tribunal, which in certain circumstances allows a claim to be brought on behalf of an entire class of potential claimants without the need for them to choose to participate. After a slow start, such claims have begun to gain momentum. By 2024, class actions encompassing more than 500 million class members had been filed, equating to 8.1 class actions for each person in the UK. We have now seen the first settlements of these types of class action, including the McLaren ro-ro car delivery class action in December 2023 and the “Boundary Fares” claim in May 2024. Early 2024 saw the first trial, in Justin Le Patourel v BT. The judgment for this is (at time of writing) eagerly awaited as likely to give guidance on the tribunal’s attitude to damages and funder returns in collective actions.

In addition, England and Wales has a “representative actions” mechanism set out in CPR 19.8. This requires that the representative and class members have the “same interest”; and that the court exercises its discretion to allow the instant claim to be brought as a representative claim. Historically, this has been rarely used, with several recent attempts to bring claims using this mechanism stumbling on the “same interest” test (see Lloyd v Google [2021] UKSC 50 et al). However, last year the High Court did approve the use of the representative action mechanism in Commission Recovery Ltd v Marks & Clerk LLP [2023] EWHC 398, a “secret commission” claim, a decision upheld by the Court of Appeal ([2024] EWCA Civ 9). The Supreme Court refused permission to appeal, such that this is on track for trial in January 2025.

A live issue in multiparty claims generally is the use of claim forms for multiple claimants. The CPR permits more than one claimant to be included on a single claim form, provided that the claims can be “conveniently disposed of in the same proceedings” (CPR 7.3). There has been a sequence of recent decisions on this point, including Abbott & Others v Ministry of Defence [2023] 1 W.L.R. 4002, Morris v Williams & Co. Solicitors [2024] EWCA Civ 376, and Adams v Ministry of Defence [2024] EWHC 1966 (KB). The acid test is convenience, which is a matter of broad judicial discretion, and does not require that the trial of common issues brought by multiple claimants should produce a binding determination on all parties, nor a single final trial hearing to be possible or practicable. Convenience can be judged not only from the perspective of the parties, but also from the perspective of the capacities of the court system. In Adams, it was convenient to the court, factoring in difficulties with the court’s digital CE-file case management system, to fix the maximum number of claimants per claim form at 60.

The court’s creaking software apart, technology is increasingly playing a larger role in the strategies of litigants in this space. Claimant solicitors can use AI to improve engagement with potential claimants and, in doing so, reduce advertising costs. AI can assist in identifying common characteristics and patterns in claims, helping to establish commonalities at the very outset of the claim. AI is also increasingly significant in the administration of a claim. Defendants meanwhile can use tools to see what is being said on social media about their products by their customers. If defendants spot brewing group actions on social media and organise a recall and/or a compensation scheme, then they can potentially take the heat and value out of the claims. With quantum neutralised, viability and funding of a group action will be in doubt. At the very least, delay can be achieved – see the decision in Hamon & Ors v University College London [2023] EWHC 1812 (KB), where the Court was persuaded to stay a GLO application for eight months to allow UCL’s ADR scheme to be explored, in the face of objections by the students bringing the claim.

Funding of course remains key to major group actions. There was a significant development in this respect when the Supreme Court handed down the “PACCAR” judgment in July 2023 ([2023] UKSC 28). This held that a litigation funding agreement which entitles the funder to recover a percentage of any damages recovered is a damages-based agreement (DBA). This was a significant blow for litigation funders because DBAs are prohibited in opt-out competition class actions. In March 2024, the UK government introduced specific legislation to reverse the “PACCAR” judgment, but this did not make it through before the election. It was announced in August 2024 that the new government will not be legislating on the enforceability of litigation funding agreements until after the Civil Justice Council has completed its review of the sector – and a final CJC report is not expected until summer 2025.