Not so long ago, so-called "class actions," looked like the next big thing for the English courts. More recently, commentators have drawn attention to a series of decisions and developments which appear to apply the brakes. These developments include limiting opportunities to bring claims under the representative action process, restricting the availability of litigation funding (including questioning its role and motives), and stymying attempts to widen the ability to bring collective proceedings in the Competition Appeal Tribunal.
However, is the position so stark? Rather, are we at an inflexion point where claimants, defendants (and their lawyers), funders, and the Courts are assessing which procedures work to bring these claims, and which ones don't? Turning first to the CAT and its opt -out regime, speaking as a non -competition lawyer, what is tolerably clear is this is a regime limited to competition claims. Here, rules over carriage disputes (FX), the role of the class rep (Reifa v Apple), the establishment of liability (Le Patourel v BT, Merricks v Mastercard), the role of funders (PACCAR and Merricks), and validity of settlements (Merricks yet again) are going to be closely scrutinised. It seems generally interpreted narrowly.
But it is wrong in my view to draw analogies from the CAT to make a general argument as to how the other civil Courts are approaching group litigation. There is a view that the Court has shut down the ability to bring a representative claim under CPR 19.8 (the nearest mechanism we have to a civil opt -out remedy, where the representative can bring a claim on behalf of a class who have the same interest). Since the Supreme Court in 2021 in Lloyd v Google for the first time in living memory examined the representative route, there have been more attempts to run cases this way, more of which have to date failed (e.g. Wirral v Reckitt, in the securities context, Prismall v Google re data breach), than succeeded (e.g. Commission Recovery - commission payments).
All that really can be drawn from the losing decisions is that in each case the Court did not think the representative route was the correct procedure, i.e. on the facts of each case, not as a matter of principle. It is no surprise that the Courts are seeing more attempts to bring representative claims, given the mass consumer world we live in and the consequent potential for mass harm for which legal redress may be sought. But the Courts and parties to the disputes are grappling with a procedure that was devised by the Court of Chancery in 1873, since when as Lord Leggatt says in Lloyd, the world has changed out of all recognition. It is also perhaps unsurprising that it is taking some time for a clear path to emerge for these claims.
One can however understand claimant lawyers and funders currently feel rather gloomy at the prospect of group claims ever succeeding in the English Court. At the same time, these lawyers and funders feel unfairly criticised for trying to run these cases where common issues affect a very large class and which are underpinned by genuine access to justice arguments. Yet the very cases in issue point to an alternative route to seek justice for a large number of claimants. This is the tried and trusted way of running group cases here, namely by funded multi-party litigation using the full range of well-developed case management powers of the Court. This includes the ability to bifurcate liability and quantum, the use of the GLO procedure (125 of which have been granted since the process was created in the original CPR in 2000) and by allowing foreign claimants to bring group claims in England against English defendants and applying the foreign law to the dispute.
Large scale opt-in claims are not without their issues and complexities, but currently the English Court is managing literally millions of individual claims in the Dieselgate emissions litigation via a "super GLO" process, and two of the largest claims ever to be brought before the English Courts, currently ongoing for hundreds of thousands of foreign claimants in the Mariana/ BHP and Alame v Shell claims. All these cases are third party funded. At their heart, they work because there is real interest from sufficient claimants, and they each have a mechanism for those claimants to sign up and participate in the litigation. This in turn satisfies any challenge that there are not actual claimants who have suffered harm, a charge easier to make stick in more "issue based" claims where the harm is more illusory and prima facie evidence of individual damage is not presented at an early stage.
So, whilst the word "class" or "representative" may not be there, group actions in England are alive and well.
This article first appeared on Law.com on 4 March 2025.