The English courts have wide ranging and flexible case management powers, which are readily wielded in the context of group actions in an effort to narrow the issues and try them effectively. The CPR requires the court to further the overriding objective by actively managing cases, including by deciding the order in which issues are to be resolved and fixing timetables or otherwise controlling the progress of the case (CPR 1.4). As well as ordering a trial of test claims, the court may order a preliminary issues trial or a split trial, or alternatively, in representative proceedings, may bifurcate claims to determine common issues first and then deal with individual issues (for instance, relating to liability or quantum) in separate group or individual claims. If there is a split trial, there may also be a question of to what extent progress should be made on issues that have been deferred to the later trial while the first trial is ongoing (such as disclosure or the preparation of witness evidence).
In the context of a GLO, a managing judge will be appointed to oversee the claims. They are likely to give various directions when the GLO is made, including specifying the approach that should be taken to statements of case. The claimants may be required to serve group particulars of claim, together with separate individual particulars, or alternatively specific facts about each claim may be obtained through questionnaires or a schedule appended to the group particulars. The extent to which the defendant is obliged to deal with each individual claim will vary, although the defendant will certainly need to serve a defence in response to allegations in the group particulars. In other group actions that are not GLOs, the judge (or judges) assigned to hear case management conferences will have regard to many of the same considerations.
For instance, in securities group actions brought pursuant to the Financial Services and Markets Act 2000, there is a developing line of cases identifying a split of issues to be dealt with at a first trial followed by a second trial, with sample claimants fully involved throughout and the remainder of the claimants providing more limited information. An attempt in Wirral Council v Reckitt and Indivior to seek declaratory relief in respect of common liability issues as a representative action, with individual claims for damages to follow, was struck out by the court on the basis that such a bifurcation would oust the jurisdiction of the court to case manage the claims from the start (although this decision is the subject of an application for permission to appeal).
Effective case management will be particularly important when it comes to controlling the costs of disclosure. The disclosure process is vital in group actions, particularly in circumstances where many of the relevant documents lie in the hands of the defendant. However, in circumstances where even the most straightforward dispute can involve a vast disclosure exercise, the complexities of multi-party claims can create particular challenges. Notably, while group actions in the Business and Property Courts will be subject to the rules on disclosure set out in PD 57AD, it is expressly acknowledged that in multi-party cases it may be appropriate vary the disclosure timetable and procedure to meet the needs of the case. Disclosure may, however, be more straightforward in circumstances where the court has ordered a trial of test claims, enabling the disclosure exercise to be limited to those cases. Similarly, if the court can be persuaded to order a preliminary issues trial, the court may be prepared to limit disclosure to the issues in the first trial (Alame & Ors v Shell Plc & Anr (2024)).
Issues can also arise in group litigation in relation to who has access to disclosed documents. In this respect, PD 57AD encourages the parties to discuss and seek to agree whether it is appropriate for all of the disclosing party's documents to be given to all the other parties, or only to some via, for example, a confidentiality club.