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Different procedural mechanisms

Determining the appropriate procedural mechanism for bringing multi-party proceedings is key. Broadly speaking, there are four mechanisms available under English law.

Group Litigation Orders

One of the main procedural tools for bringing multi-party proceedings in England and Wales is the Group Litigation Order (GLO) – an order which provides for the case management of separate claims which give rise to common or related issues of fact or law. There have been over 120 GLOs made since the regime was first introduced in 2000.

An application for a GLO may be made before or after the relevant claims have been issued. Although there is no prescribed minimum number of claimants, "far more than two … are necessary" (Austin & Ors v Miller Argent (South Wales) Ltd (2011)). If the court is satisfied that there are, or are likely to be, a number of claims giving rise to common or related issues (the GLO issues), then it may make an order. The court will also consider the overriding objective, which requires the court to deal with cases justly and at proportionate cost; the availability of other procedural mechanisms; funding; and the wider context of the claim.

Where a GLO is made, the managed claims will be entered onto a group register, which is usually established and maintained by lead claimant solicitors. Other claimants may "opt-in" to the GLO once their claim is issued, although the GLO will also typically specify a "cut-off" date, after which claimants can only be entered onto the group register with the court's permission.

Any judgment or order given in a claim on the group register in relation to one or more GLO issues will be binding on all the other parties on the group register at the time the judgment or order is given, unless the court orders otherwise. In AXA Sun Life Plc & Ors v HMRC (2024), the Court of Appeal made such an order, but emphasised that it did so on the basis of exceptional facts, and that in the ordinary course parties to claims on a group register should expect to be bound by decisions on GLO issues.

Representative actions

An alternative route for bringing proceedings on behalf of a group of claimants is the representative action procedure, under CPR 19.8. This longstanding rule, deriving from cases in the 16th and 17th centuries, provides that, where more than one person has the same interest in a claim, the claim may be brought (or defended) by a representative of the group.

In contrast to a GLO, in a representative action only the representative is a party to the proceedings. However, the represented parties will be bound by any determination. Although a court order is not required for an individual to become a representative under CPR 19.8, a defendant may apply to strike out the proceedings on the basis that the claim is not suitable for a representative action or may seek an order that a person may not act as a representative. Such applications often turn on whether the "same interest" test has been met (although even where it has been met, the court may exercise its discretion not to allow the claim to proceed in a representative capacity if it is not in accordance with the overriding objective).

In Lloyd v Google (2022), the Supreme Court considered that the purpose of requiring the representative to have the "same interest" in the claim as the persons represented was to ensure that the representative could be relied on to conduct the litigation in a way which would effectively promote and protect the interests of all members of the represented class. While this is not possible if there is a conflict of interest between class members, the existence of divergent interests will not preclude a representative action. Where individualised assessment of damages is required, the claimants will not have the "same interest" (Lloyd; Prismall v Google (2023), unless the damages can be assessed on a basis that is common to all members of the class (Lloyd; Commission Recovery Limited v Marks & Clerk LLP (2024)). However, in cases with both common and individual issues, the Supreme Court suggested the representative procedure could still be applied to the common issues (see "Trials" below).

However, there is no conflict just because some claimants have provided more information than others, nor because the defendant takes a defence of limitation against individual class members, nor because a substantive defence applies only to some members of the class (Commission Recovery Limited v Marks & Clerk LLP (2023)). Where there is no conflict, it is realistic for the represented group to place reliance on the representative claimant and its lawyers to pursue vigorously lines of argument not directly applicable to the claimant’s individual case (Commission Recovery (2023)).

Although representative actions are typically brought as opt-out proceedings on behalf of a defined group who are not individually identified, they can be brought on an opt-in basis (see, for example, Wirral Council v Reckitt and Indivior (2023)). Further, although, as the Supreme Court emphasised in Lloyd v Google, the ability to act as a representative does not depend on the consent of the persons represented, it is open to the judge managing the case to impose a requirement to notify members of the class of the proceedings or limit represented parties to persons who have positively opted in.

Since the comprehensive updated guidance on the use of representative actions provided in Lloyd v Google, there have been a handful of claims brought in this way (with very few judgments), and use of the procedure continues to develop. The Supreme Court in Lloyd noted that CPR 19.8 is "a flexible tool of convenience in the administration of justice". It is sufficient that there is one or some common issues that can be determined by a representative action, even if other issues can only be resolved on an individual basis (Lloyd; Commission Recovery (2024)). The mechanics of distributing any final damages among the class is a question that can be left until a later stage of proceedings (Commission Recovery (2023)).

So far, the courts appear to consider that claims for declaratory relief (rather than damages) are most suited to the representative procedure (see Commission Recovery (2024), a case which settled before trial), although that does not mean that all representative claims for declarations will be allowed to proceed (as was the case in Wirral Council v Reckitt and Indivior – see further below).

A further representative procedure is available under CPR 19.9 in relation to claims about estates, trust property or the interpretation of documents, where the court may appoint a representative on behalf of unborn children, or those who cannot be found or identified.

Multiple claimants on single claim form (or consolidation)

Alternatively, claimants may simply opt to bring all their claims together in a single action. Under CPR 19.1, any number of claimants or defendants may be joined as parties to a claim and in Municipio de Mariana v BHP (2022), the Court of Appeal permitted a claim brought by over 200,000 claimants to continue. CPR 7.3, meanwhile, provides that a single claim form can be used to start all claims which can be "conveniently disposed of in the same proceedings". Provided this test is met, there is no absolute limit on the number of claimants that can appear on a single claim form (Morris & Ors v Williams & Co Solicitors (2024)). In some cases, this power may be combined with an application for a GLO.

The English court also has broad case management powers, and so it is possible for existing claims to be consolidated, for claims to be case managed together, or for claims to be tried together but otherwise proceed separately. As noted in Adams v Ministry of Defence (2024), the court may also disaggregate claims brought on a single claim form where, for example, generic issues have been determined and each claim falls to be individually assessed.

 

Collective proceedings before the CAT (in competition actions)

In the context of competition law infringements, opt-in and opt-out collective actions may be brought before the Competition Appeal Tribunal (CAT) by a certified class representative pursuant to section 47B of the Competition Act 1998.

However, unlike representative actions under CPR 19.8, collective proceedings before the CAT may only be litigated if the CAT makes a collective proceedings order (CPO). It will only do so if the claim is brought on behalf of an identifiable class of persons, raises the same, similar or related issues of fact or law, and is suitable to be brought in collective proceedings. Further, although the representative does not need to be a class member, the Tribunal will only make a CPO if it considers it is just and reasonable for that person to act as a class representative.

Derivative actions

Arguably another form of group action is the derivative action, whereby a minority shareholder brings proceedings on behalf of a company against one or more of its directors for negligence, default, breach of duty or breach of trust. Derivative actions represent an exception to the principle that it is for the company to determine whether to pursue such a claim, and the court's permission is therefore required for the shareholder to continue the claim. As well as satisfying certain preconditions, including that the claim is not contrary to the duty to promote the success of the company, the shareholder must establish a prima facie case. For this reason, derivative claims have proved difficult to get off the ground.

Arbitration

Although arbitral rules are making increasing provision for joinder and consolidation of claims, the consensual nature of arbitration means that multi-party arbitrations can often be difficult to accommodate. Arbitration clauses rarely provide expressly for group arbitration, and where a party is resistant, a tribunal is unlikely to force them to arbitrate on a collective basis.

Nevertheless, group actions in English seated arbitration are not unknown, particularly in circumstances where multiple separate proceedings appear otherwise unavoidable, and the efficiencies of group proceedings are attractive to defendants as well as claimants. For example, in 2020 around 400 companies formed the Hiscox Action Group and commenced arbitral proceedings against their insurer, in relation to claims under business interruption policies for losses suffered during the Covid-19 pandemic. Defendants may also be attracted by the confidential nature of arbitration, the ability to choose specialist arbitrators and the flexibility of the process.