The Class Actions Law Review: United Kingdom - England & Wales
Introduction to the class actions framework
Group litigation has been available in the English2 courts for over a century and is an established part of modern English civil procedure, with several significant cases passing through the courts each year.3 However, the past five years, in particular, have seen the group litigation sector undergo rapid development and expansion. One of the catalysts for this growth was the introduction of true opt-out class actions, as lawyers from the United States (US) would recognise them, in the context of certain competition law claims. Crucially though, developments have not been limited to the competition sphere; a combination of judicial enthusiasm, and growing interest from the claimant bar and litigation funders, has meant that class actions have now become an attractive and feasible means of redress across a variety of sectors. These developments, should they continue, may well make England one of the most attractive jurisdictions in which to commence group litigation in the near future.
The year in review
The past 12 months have seen several significant developments in relation to each of the forms of class and group actions outlined above.
i Opt-out class action proceedings
The English courts have continued to deal with issues arising from cases where the opt-out class action procedure for competition cases has been used.
Filed on 8 September 2016 with the CAT, Mastercard was the second follow-on claim brought under the new opt-out collective proceedings regime (the first being in relation to Dorothy Gibson v. Pride Mobility Products Limited (Pride Mobility)).11 The claim followed on from the finding of the European Commission that Mastercard had infringed EU competition law as a result of interchange fees on transactions between 1992 and 2007. The case was brought by the former Chief Ombudsman of the Financial Ombudsman Service and was valued by the claimants' lawyers at £14 billion, making it the largest claim heard in England to date. In 2017, the CAT refused to grant a CPO on the basis that expert evidence adduced at the certification stage failed to demonstrate a commonality of interest owing to the fact it could not be determined how much of the loss had been passed through to each proposed claimant. Upon Mr Merricks' appeal, the Court of Appeal considered for the first time whether it had jurisdiction to hear an appeal against the CAT's refusal to grant a CPO, finding that it did have such jurisdiction provided a point of law was raised.
In a judgment handed down on 16 April 2019, the Court of Appeal reversed the CAT's decision. In the most important decision for the class action regime to date, the Court found that: (1) the proper standard for evidence for the proposed class representative (PCR) is no higher than a 'real prospect of success', so the methodology proposed by the PCR for establishing loss was sufficient for the CPO stage in the proceedings; (2) aggregate damages need not be proposed to be distributed on a compensatory basis (as had been envisaged by the CAT); and (3) loss does not need to be established through calculating individual loss. The Court of Appeal also held that refusal to grant the CPO would be likely to mean that no follow-on proceedings would succeed, given that the small sums involved for each individual would make individual litigation impractical, so there were strong policy reasons for granting the CPO. Mastercard has appealed to the Supreme Court and the appeal will be heard in May 2020.
The Supreme Court's decision will be fundamental to the future of opt-out class actions in England (a number of which have been stayed pending the outcome of Mastercard) because it will provide authoritative guidance on the legal framework for certification that will apply to all future actions. The Supreme Court will need to consider the various legal questions that arise from the contradictory decisions of the CAT and the Court of Appeal in light of the policy considerations that underpinned the introduction of the collective proceedings regime. The opt-out regime was introduced to provide protection to, and enable more effective collective redress for, businesses and consumers in competition cases. However, at the same time, the legislature decided that strong safeguards were needed to ensure that proposed class actions would be subject to appropriately vigorous scrutiny to ensure that businesses are not exposed to costly and reputationally damaging claims that are frivolous and unmeritorious. Whether the Supreme Court agrees with the CAT or the Court of Appeal as regards the correct legal approach to certification will be vital to the other opt-out class action cases that are progressing through the CAT (discussed further below), as well as to the overall success of the CRA regime.
The discussion by the CAT in Mastercard regarding funding arrangements also merits consideration. Objections were raised by the defendants as to the third-party litigation funding arrangement in place on the following three grounds: (1) it could be terminated by the funder such that the applicant would not be able to pay the defendants' costs, if ordered to do so; (2) its liability was limited to £10 million; and (3) its terms gave rise to a conflict of interest on the part of the applicant. The CAT rejected grounds (2) and (3) but accepted ground (1). Therefore, while Mastercard demonstrates the opportunities provided by third-party litigation funding (with over £40 million of funding having been made available to the claimants in an action that would otherwise seem unfeasible without support of this kind), it also highlights the potential challenges such funding arrangements might face. However, the scope of ground (1) now seems likely to be of limited application in light of subsequent proceedings before the CAT (as discussed immediately below).
Road Haulage Association Limited v. MAN SE and others, and UK Trucks Claim Limited v. Fiat Chrysler Automobiles NV and others (together, the Trucks Applications)
The Trucks Applications were the third and fourth follow-on claims to be brought pursuant to the new collective proceedings regime.
The Road Haulage Association Limited v. MAN SE and others (Road Haulage)12 CPO application has been brought under the opt-in collective proceedings regime, while the UK Trucks Claim Limited v. Fiat Chrysler Automobiles NV and others (UK Trucks)13 CPO application has been brought as opt-out collective proceedings at first instance, but opt-in in the alternative.
Both applications, brought in July 2018 and May 2018 respectively, followed the European Commission's finding in July 2016 that certain European truck manufacturers had engaged in collusive arrangements on pricing. In light of the similar issues involved, the Trucks Applications are being heard together.
Broadly, the proposed class across the Trucks Applications encompasses those who purchased or leased new or pre-owned medium or heavy trucks during the relevant period, but the claim forms and expert reports of the two applicants take different approaches to defining the classes. To date, over 10,000 members have signed up to the Road Haulage proceedings,14 although this number is expected to increase if the CAT grants the CPO. At a case management conference held in December 2018, the CAT directed that both claims should be heard together, and also suggested that there was nothing under the collective proceedings regime that prevented two opt-in proceedings being certified for the same infringement. This raises the possibility that both the UK Trucks and Road Haulage applications could be certified as opt-in proceedings, potentially allowing claimants to choose between the two proceedings (although this will depend on how the class is formulated). However, the applications have been stayed pending the outcome of the appeal in Mastercard.
In the meantime, the CAT has dealt with preliminary issues, including in relation to the PCR's third-party litigation funding arrangements. In a judgment published on 28 October 2019, the CAT held that the funding arrangements entered into by the applicants in both the applications do not provide grounds for refusing to authorise the PCR. The CAT crucially found that the funding arrangements, pursuant to which the funder is paid by reference to the amount of damages recovered, were not damages-based agreements and so not subject to the Damages-Based Agreements Regulations 2013, and therefore were not unlawful. The CAT also rejected the respondents' concerns regarding the level of adverse costs cover, finding that it is adequate that the PCR has a level of adverse costs cover sufficient for at least a significant part of the proceedings.
The parties must now await the decision in Mastercard. In the interim, it is unclear how the courts will manage the different claims, as proceedings brought by individual claimants have now made significantly more progress than the CPO applications.
Justin Gutmann v. First MTR South Western Trains Limited and another, and Justin Gutmann v. London & South Eastern Railway Limited (together, the Trains Applications)
The first stand-alone claims have also now been brought under the opt-out collective proceedings regime were the Trains Applications.15
These applications, brought in February 2019, involve claims against UK rail operators concerning the availability of certain rail fares and involve proposed classes in the millions. As with the Trucks Applications, the CAT has decided to stay the CPO application pending the Mastercard decision. Unlike the other claims mentioned above, the Trains Applications will need not only to overcome the hurdles detailed above to obtain a CPO, but also to demonstrate a breach of the underlying competition law. The other CPO applications that have been brought to date are follow-on actions, meaning that a breach of competition law has already been established and the claims follow on from the infringement decision. The success or otherwise of this case may well therefore have a significant impact on whether further stand-alone claims are brought in the future.
Michael O'Higgins FX Class Representative Ltd v. Barclays Bank PLC & Others, and Phillip Evans v. Barclays Bank Plc & Ors (together, the FX Applications)
The FX Applications16 are opt-out follow-on damages claims arising out of the European Commission's decisions adopted on 16 May 2019, which found that six banks had engaged in two cartels in the spot foreign exchange market for 11 currencies. The Michael O'Higgins FX Class Representative Ltd v. Barclays Bank PLC & Others (O'Higgins) and Phillip Evans v. Barclays Bank Plc & Ors (Evans) applications were filed on 29 July 2019 and 11 December 2019 respectively.
The unique point in the FX Applications is that this is the first time that competing opt-out collective proceedings have been filed in the UK. Consequently, the claims raise novel questions as to how competing applications should be managed efficiently and fairly, and the considerations that the CAT should take into account when deciding which claim is the most suitable. At a case management conference in the O'Higgins application on 6 November 2019, the CAT made some remarks that indicated how it would approach these issues, namely: (1) where there are two opt-out CPO applications that relate to the same subject matter, only one can prevail; and (2) in assessing which application should prevail, the CAT will engage in a comparative exercise.
The FX Applications have been stayed pending the appeal in Mastercard, but a joint case management conference was held on 13 February 2020 to consider case management issues pertaining to both applications and, in particular, whether the question of which class representative is the most suitable (termed a 'carriage dispute') should be dealt with as a preliminary issue. In a judgment handed down on 6 March 2020, the CAT concluded that the carriage dispute is not necessarily a discrete matter capable of being determined in advance of certification because the question of who may be appropriately authorised to bring a collective action cannot always be disassociated from the question of whether a claim should be certified. As a result, the CAT held that the issues of whether a CPO should be made at all and, if so, which application should succeed, should be heard together at a single hearing.
ii Significant environmental actions
Further significant developments are being seen in respect of large-scale environmental claims, which are raising interesting questions relating to the jurisdiction of the English courts.
In Vedanta Resources PLC and another (Appellants) v. Lungowe and others (Vedanta), a group of Zambian villagers brought claims in respect of alleged pollution and environmental damage caused by toxic emissions from the Nchanga copper mine against (1) KCM, which is a Zambian company that owns and operates the mine, and (2) Vedanta Resources plc, which is KCM's parent company. The claimants brought proceedings in the UK on the basis that Vedanta Resources was domiciled in England. In April 2019, the UK Supreme Court dismissed the defendants' jurisdiction challenge. It held that the claimants had a good arguable case that Vedanta Resources owed them a duty of care. It further held it was not an abuse of law for the claimants to sue Vedanta Resources in England in order to bring in KCM as a co-defendant, even where almost all relevant facts pointed to Zambia as the appropriate jurisdiction. This decision is significant because it confirmed that a duty of care can exist between a parent company and those affected by the operations of its subsidiary, where the parent company 'had sufficiently intervened in the management of the mine'.17
This case may be of concern for multinational companies as it demonstrates an expansion of the circumstances in which the English courts are prepared to find a good arguable case that a UK parent company may owe a duty of care for the activities of its overseas subsidiaries. It is likely that claimant law firms will seek to rely on this decision to bring similar claims against other UK-domiciled parent companies.
This trend towards parties bringing claims against UK-domiciled parent companies is also evident in the developing case against BHP Billiton Plc and BHP Limited, which currently face a significant claim in the English courts over the Samarco dam failure. There are parallel actions against other BHP group entities in a number of jurisdictions, including Brazil and Australia, and certain BHP group entities settled related proceedings in the US in August 2018.18 The English proceedings are for a claimed amount of approximately £5 billion, brought on behalf of over 200,000 claimants, making it one of the largest claims in British legal history. Notably, no specific procedural mechanism has been used by the claimants at this stage; instead the claims simply involve a very large number of individual claimants and appear to rely on the English court's ability to manage large and complex claims. The defendants have filed an application contesting the jurisdiction of the English court in August 2019, which is due to be heard in June 2020.
This year has also seen developments in the claim brought against Volkswagen (VW) in relation to the diesel engine emissions scandal.19 A GLO was granted in May 2018, opening the way for one of the largest consumer actions to come before the English courts. The period for marketing to potential claimants closed in October 2018, and the final claimant group consists of approximately 91,000 UK VW vehicle owners.20 Hearings took place in early December 2019 regarding the definition of a 'defeat device' and whether the EU auditor's decision about such devices would be binding on an English court. The judgment had not been published at the time of writing. The trial is expected to take place in 2021.
In other proceedings filed in the English High Court in November 2019, a group of Brazilian orange farmers allege that they have suffered losses as a result of an alleged unlawful orange juice cartel in Brazil. Given that the claim is based on Brazilian law, the alleged wrongdoing took place in Brazil, the majority of defendants are not English-domiciled and the Brazilian competition authority has already issued a decision about potential wrongdoing following its investigation, questions regarding jurisdiction are once again likely to be in focus. While not strictly a claim in the environmental sphere, this case shows that these complex issues of jurisdiction are also being seen in other sectors.
iii Significant data breach actions
The past year has also seen an increase in activity in the data sector, regarding potential breaches of the Data Protection Act 2018 and the associated EU General Data Protection Regulation 2018 (GDPR).
In October 2019, a GLO was granted in respect of the group action against British Airways following the theft of customer data from British Airway's customers. The stolen data included personal and financial details. This theft of personal information led to the Information Commissioner's Office announcing a record fine of £183 million in July 2019. The court has granted a 15-month window for potential claimants to join the action and over 6,000 claimants have joined so far after the well-publicised breach of the company's website and mobile app.
Furthermore, in Lloyd, one of the most significant cases to date for class actions in England, the Court of Appeal granted the claimant permission to serve Google out of jurisdiction in a claim that could involve over four million iPhone users. The claim relates to the 'Safari workaround', which allowed Google to determine the date visited and time spent by users on websites, as well as pages visited and advertisements viewed. Although there was no pecuniary loss or distress, the Court of Appeal found that damages could be awarded under Section 13 of the Data Protection Act 1998 for breach of Section 4(4) of the same Act. This is because the information collected by the workaround did hold economic value, and so loss of this data was a loss to the claimant group. Significantly, the Court of Appeal allowed the use of the representative action procedure under CPR 19.6(1) to pursue an opt-out-style claim. Although 'unusual', there was a commonality of interest, as required by CPR 19.6(1), since all claimants had browser-generated information taken without their consent over the same period and in the same circumstances. The Court also noted that it was appropriate to use its discretion under CPR 19.6(2) to allow the class representative to act given the alleged scale of the wrongdoing by Google, especially where there might otherwise be no other remedy. Google has already announced that it intends to appeal this decision.
In conclusion, the combination of increased protection of personal data rights as a result of the GDPR, the Cambridge Analytica scandal and the decision in Lloyd means that data breaches are likely to be a key growth area for class actions in future.
iv Significant shareholder actions
A further growth area concerns shareholder group litigation. Aggrieved investors who feel that they have lost out because of a listed company falling short of its obligations to provide accurate and timely disclosure of matters relating to its disclosures may form a class that has the same claim against that company and, in some cases, its directors. So far, only one such claim has reached trial and that was unsuccessful. However, at least one other case settled before trial and others are progressing through the courts, as noted below.
It is perhaps surprising that there have not been more shareholder group actions, as Sections 90 and 90A of the Financial Services and Markets Act 2000 (FSMA) grant shareholders who have suffered loss because of untrue or misleading statements or omissions in a prospectus or other market announcements a right to be compensated if the company or others responsible were at least negligent in preparing the public document.
In the RBS Rights Issue Litigation, thousands of institutional and retail investors sued the Royal Bank of Scotland for losses they allegedly sustained following a £12 billion rights issue in 2008. Some claimants also sued the bank's directors. The claim, made under Section 90 FSMA, alleged that the rights issue prospectus did not properly and fairly present the bank's financial position and omitted relevant information. The claimants had organised themselves into several groups, each advised by different lawyers; their claims were the subject of a GLO. The claims were ultimately settled in 2017 before the matter could progress to trial.
In November 2019, the High Court dismissed a claim by 5,800 Lloyds shareholders against the bank and its former directors.21 They had argued that the bank's directors were negligent in recommending support for the acquisition of HBOS at the height of the financial crisis and had failed to disclose relevant information. The claim was based on the common law, not FSMA, and was a challenging one to bring: the claimants needed to show that the directors owed them (as opposed to the company) specific duties; that the duties had been breached; that they had relied upon the misstatements that constituted the breaches of duty; and that the breaches caused the shareholders loss that it was appropriate for them to recover. In the event, the directors conceded that they owed at least some duties and the judge decided some of those had been breached. But he rejected the claimants' case on reliance and causation and, although by that stage it was irrelevant, he said he would have found against them on loss too.
Nonetheless, the ongoing shareholder action against Tesco plc offers hope that this decision does not mean the end for shareholder class actions in England.22 This action, brought under Section 90A FSMA, relates to allegedly false and misleading statements made by Tesco in 2014. In October 2019, the court dismissed a strike-out action, and the trial is listed for June 2020.
Moreover, there are a number of potential shareholder actions that are being investigated by the claimant bar. For instance, in November 2019, shareholders began legal action against one-time alternative business structure Quindell, alleging that Quindell made misleading statements to the market.
i Types of action available
As noted in Section II, the regimes available for English class or group actions broadly fall into two categories: opt-in procedures and opt-out procedures.
ii Commencing proceedings
As noted above, not only can representative actions be utilised for any type of claim, there are also no requirements pertaining to the number of representees, be they claimants or defendants. The principal requirements for a representative action are:
- the representative is a party to the proceedings; and
- the representative and the represented parties all have the same interest in a claim.
If a court orders that a representative action may be continued, the court's judgment will bind everyone the representative party purports to represent.23 However, it may only be enforced by or against a non-party with the court's permission. Importantly though, the representee need not authorise being represented24 so long as the same-interest requirement is met.25
Whether the parties are deemed to have the same interest in a claim might appear to be a narrow and restrictive concept. However, over time the boundaries of the interpretation of the requirement have been tested. Emerald Supplies Ltd v. British Airways plc  EWCA Civ 1284 provided a detailed analysis of the requirements for a representative action.26 It was noted that the class must have a common interest or grievance and seek relief that is beneficial to all. It did not matter whether the class fluctuated, so long as at all points it was possible to determine class membership qualification. However, the attempt in this case to use the representative action as a proxy for an opt-out class action failed because of the inevitable conflicts within the claimant class sought to be represented, which was drawn so widely that it was described by the court as fatally flawed. In particular, the court found that the same interest could not be said to be present as the sheer breadth of the class meant it was impossible to identify which members had the same interest. Furthermore, the overriding objective is important too in shaping its application. Concepts similar to proportionality can be distilled from the case law. Although the CPR appears to require an identical interest,27 Megarry J stated that 'the rule is to be treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice'.28
This decision can be contrasted with the recent decision in Lloyd, described above, in which the Court of Appeal found that the roughly four million iPhone users did have the same interest as they were victims of the same alleged wrongdoing and had all sustained the same loss – loss of control of their browser-generated information. Sir Geoffrey Vos found that the applicable test is whether it is possible to identify whether a particular person qualifies for membership of the particular class. Crucially, the claimants were not relying on facts specific to individuals (such as breaches regarding special category data), making it possible to find a same interest across the whole class.
In light of the requirements for the courts to consider the overriding objective, particularly that the dispute is dealt with 'expeditiously and fairly',29 the representative action regime continues to provide significant potential for effectively bringing a group action.
GLOs are an opt-in mechanism that require an individual to have brought his or her own claim first to be entered upon the group register.30 They are similarly premised on the notion that where there are similar facts and issues to be resolved, it is more efficient that these are dealt with collectively. Given the costs inherent in litigation, such efficiencies have enabled claimants to recover losses previously unobtainable. It is important to distinguish, however, between instances where the determination of a single issue is common to all the claims, and instances where a defendant is liable to numerous claimants but each is separate as to liability and quantum. Where there are no generic issues, 'nor generic issues of such materiality as to save costs in their determination',31 a GLO will not be granted and the individual must litigate separately.
Court consent is required for a GLO, which may be obtained if the claimant can show that there are 'common or related issues of fact or law'.32 Nonetheless, the court has discretion in granting the order.33 There is no guidance as to how this discretion is to be exercised,34 though the overriding objective would still be applicable. Similarly, consideration must also be given to whether a representative action would be more appropriate,35 namely when the interests and issues of the parties are the same. It must be noted, however, that broadly the requirements of a GLO have not proven difficult to meet.36 This is in part because the standard of commonality is lower.
There are no special requirements for a GLO application,37 although the applicant should both consider the preliminary steps38 and ensure that his or her application contains the prescribed general information.39 As part of this information, the applicant must provide details relating to the 'GLO issues' in the litigation. It is important that these GLO issues are defined carefully, given that the judgments made in relation to the GLO issues will bind the parties on the claim's group register.40 Nevertheless, the court may give directions41 as to the extent to which that judgment is binding on the parties that were subsequently added to the group register. Once a GLO is granted, a deadline is set by which time the other claimants must have been added to the group register. While there have been some notable GLOs granted recently, in particular in respect of the emissions litigation against VW and the shareholder claim against Lloyds Banking Group (see above), it is notable that, since the introduction of the GLO procedure in 2000, there have only been just over 100 GLOs ordered. Whether the increased availability of funding for these types of claims will lead to an increase remains to be seen.
Joint case management
The courts are able to use ordinary case management powers under the CPRs to manage claims brought by multiple claimants. CPR 3.2(2)(g) and (h) allow courts to consolidate or jointly try claims. These powers afford judges significant control and flexibility over the management of the claim, and the decision to use this mechanism in Vedanta and the case against BHP indicates that this flexibility can also be attractive to claimants. The experience of the English courts in managing multiple claims is another attraction; the claimants in Vedanta pointed to the experience, resources and expertise of the English courts in managing large claims as one of the reasons for hearing the claims in England. The readiness of the courts to utilise these powers to manage such large cases is another indicator of growing judicial enthusiasm for facilitating class actions. Even if the Supreme Court decision in Mastercard is relatively restrictive, claimants will continue to have the option to pursue large claims through this procedural mechanism.
The most significant recent change to the English class action regime resulted from the CRA, which came into effect in October 2015. Schedule 8 introduced changes to the competition law class actions regime under Section 47A of the CA. Collective proceedings are proceedings that are brought by multiple claimants or by a specified body on behalf of claimants, sharing certain characteristics (i.e., a class action as ordinarily understood). While collective proceedings are limited solely to competition actions before the CAT, it is notable for two reasons. First, it is currently the only true opt-out class action regime in England, and second, it is a possible indicator of changes to come more broadly to English class actions. While claimants already have the right to bring collective actions,42 as detailed above, these were perceived as insufficient to address the harm caused to both direct and indirect purchasers.
There are three sources that set out the procedure for obtaining CPOs: these are the CRA Schedule 8, the Competition Appeal Tribunal Rules 2015 (the CAT Rules) and the CAT Guide to Proceedings 2015 (the CAT Guide). Notwithstanding the fact that CPOs were introduced under the CRA, both individuals and businesses can apply for a CPO. The reforms also widened the types of claims that the CAT could hear. The CAT had previously been restricted to hearing follow-on claims, while collective proceedings can be either follow-on or stand-alone. A follow-on claim is one where a breach of competition law has already been determined by a court or authority such as the Office of Fair Trading or the European Commission. With breach already having been established, the claimants are only required to show that the breach caused them loss. In contrast, a stand-alone claim is one where there is no prior decision by either body upon which the claimant can rely and the claimant must therefore prove breach before the CAT as well.
Similarly to proceedings for a GLO, collective proceedings require certification to proceed, in this instance from the CAT. This mechanism works to remove frivolous or unmeritorious claims and enables the CAT to determine the class representative, class definitions and whether the proceedings should be opt-in or opt-out proceedings. Section 47B CA and Rule 79 of the CAT Rules detail the requirements that must be met for the CAT to make a CPO. Principally, the CAT must determine that 'the claims raise the same, similar or related issues of fact or law'43 and that a collective proceeding would be appropriate based upon a preliminary assessment of the merits and available alternative regimes.44 How the CAT determines the representatives, the classes (and sub-classes), and whether it is to be an opt-out action, will be fundamental to the collective proceedings' operation, reach and success.45 The Supreme Court's decision in Mastercard should provide authoritative guidance on some of these issues.
Upon certifying the class in an opt-out action, all members falling within the definition will automatically become part of the action unless they opt out before the end of the designated period. However, this will only apply automatically to members domiciled within the UK. Non-UK-domiciled claimants can still be a member of the class, though they will have to actively opt in before the end of the specified period.
iii Procedural rules
Given the differing group and class action procedures that can be used under English law, the process of determining the class differs between them too. With representative actions, the court can order that an individual is, or is not, a representative of a particular person. While the representee need not authorise the representative to bring an action (or even be aware that it is being brought), a representative claimant cannot assume an unfettered right to control the litigation because any party to the proceeding can apply for such an order. For a GLO, the court may give directions stipulating the date by which further claims cannot be added to the group register without the court's permission.46 However, failure to meet the deadline does not automatically mean that the claim cannot be added to the group.47
In contrast, with the collective proceedings regime the CAT has a broad discretion in the certification process to outline how a CPO is to be conducted given that it may take into account 'all matters it thinks fit'.48 Furthermore, in considering the suitability of bringing the claim in collective proceedings, the CAT may limit the CPO to just some of the issues to which the claim relates.49 In certifying a claim as eligible for inclusion in collective proceedings, the CPO must describe the class and any sub-classes along with the provisions for opting in and out of the proceedings.50 The CAT also has the full remit to vary the order, including altering the description or identification of class members, at any time on its own initiative or following an application by the class representative, defendant or any represented person.51
Given the breadth of the class or group action mechanisms in England, generalities regarding the process of such actions are difficult to discern. For example, liability and quantum may be split depending on the type of claim that is brought, though in other instances, such as in follow-on claims, breach need not even be assessed. The same can be said for assessing the speed at which class actions progress. As regards collective proceedings, it is impossible at present to determine the rate at which these are to progress given how recently they have become available and the preliminary stages that cases under the new CRA regime have reached and none have yet been certified.52 Proceedings for GLOs and representative actions will also by their nature be context specific. Since GLOs have recently been used for notable, complex securities claims, some of which have already seen significant settlements,53 they may not provide a good benchmark from which to assess the speed and potential efficiencies of such a group action mechanism.
The disclosure provisions do, however, vary between the different class or group action regimes. Taking for instance representative claims, because the representees are not parties to the claim, they are not subject to the ordinary disclosure standards. Instead, they must only meet the requirements that a non-party is held to. In contrast with collective proceedings, the CAT holds comprehensive disclosure powers based on those more generally applicable in litigation in the English courts. The CAT can, therefore, order the disclosure of documents that are likely to support the case of the applicant, or adversely affect one of the other parties' case, from any person irrespective of whether they are a party to the proceeding, as long as it is necessary to save costs or dispose of the claim fairly.54
iv Damages and costs
The general rules on costs are detailed at CPR 44. This provides discretion as to the award, amount and timing of payment for costs. Given that the unsuccessful party will ordinarily be ordered to pay the other side's costs, unmeritorious class actions have traditionally been restrained. This is particularly in light of the significant costs inherent in class actions, given their size and complexity.
However, as demonstrated by BritNed Developments Ltd v. ABB AB,55 parties and their advisers should be mindful of the fact that the judiciary has recently shown its willingness to depart from the typical loser-pays costs order. In this decision (in October 2018), the High Court ordered both parties to pay their own multimillion-pound costs, in light of the fact that the claimant was awarded damages significantly lower than that claimed.56 Although the case was not brought as a group claim or class action, it is notable as it demonstrates the willingness of the English courts to exercise their discretion to limit the extent of recoverable costs. In the context of group claims – which are often subject to third-party funding – the likelihood of recoverability of costs can be a key factor in deciding to pursue a claim. The potential for a winning party to be barred from recovering their costs could act as a deterrent to litigation funders and law firms normally interested in pursuing large-scale class actions.
There is also the added complication of how costs are to be split between the constituent members of the class. For representative actions, as the represented individuals are not parties to the action, they are not individually liable for costs. The court may nevertheless accept an application for costs to be paid by the representees.57 There are also specific costs rules in the CPRs for proceedings governed by GLOs. The default position is that group litigants are severally, and not jointly, liable for an equal proportion of the common costs.58 In RBS, however, the court decided at a case management conference in December 2013 that adverse costs should be shared on a several basis in proportion to the size of the individual's subscription cost in the rights issue relative to the total subscription cost for all the claimants on the group register.
With the growth in after-the-event (ATE) insurance and third-party litigation funding, the costs risk may, however, become less pronounced. Nevertheless, as addressed above, the risk is still a considerable factor in determining whether and how a class action is brought. Indeed, the arrangement of ATE insurance is often considered alongside, and of equal importance to, the litigation funding arrangements.59 Unlike proceedings governed by GLOs or representative actions, damages-based agreements are prohibited in respect of opt-out collective proceedings.60 Therefore, for opt-out collective proceedings to be successful, it is increasingly likely that they will be dependent upon third-party funding.
One of the notable differences between civil actions in England and certain other jurisdictions, particularly the US, is that there are no jury trials in English civil actions. This difference becomes apparent with quantum as English class action damages are typically much lower than in the US.
With regard to damages for representative actions, the historic position was that the same-interest requirement excluded damages from being recoverable for the class.61 However, there has been an incremental liberalisation such that it is established that damages can be claimed in a representative action.62 The damages awarded, however, in proceedings governed by a GLO or representative action will be dependent on the type of claim that is brought, though under English law, damages are generally compensatory (e.g., breach of contract, tort).63
The provisions for damages in collective proceedings claims are, however, more detailed. Damages are ordinarily compensatory; exemplary (i.e., punitive) damages for collective proceedings have been statutorily excluded.64 Punitive damages may still be sought in relation to a competition law breach; however, to seek them, the individual would need to opt out from the collective proceedings action and bring an individual claim. The CAT will calculate damages aggregately for the class or sub-class and will not undertake an assessment as to the amount of damages recoverable by each represented person. The Court of Appeal's decision in Mastercard suggests that aggregate damages need not necessarily be distributed on a compensatory basis, given that the CAT does not calculate loss for each individual. Rules 92–93 of the CAT Rules stipulate that the CAT may give directions for the assessment of damages; for instance, a formula to quantify damages. Damages are ordinarily to be paid to the class representative for distribution.65 If all the damages are not claimed within the CAT's specified period, the CAT may order that undistributed damages are paid to the representative 'in respect of all or part of the costs or expenses incurred by the representative in connection with the proceedings'.66 Any other remaining unpaid damages are to be paid to charity.67
The CPO applications that have so far been brought, in particular Mastercard (the claim value of which is £14 billion), indicate that significant damages may be sought through the collective proceedings regime. The sums that are potentially at stake will also be likely to provide a useful bargaining tool for claimants seeking to settle their claims instead of pursuing protracted litigation.
In common with other jurisdictions, there is often a significant and mutual impetus for claimants and defendants to settle class actions out of court. In some instances, such as in securities litigation under Section 90 FSMA, where the cause of action has not been frequently litigated, the absence of clear precedent may encourage the parties to settle to avoid uncertainty. With regard specifically to follow-on actions, since breach will have already been determined, the dispute will likely focus on the issues of causation and quantum. Given that the determination of causation and quantum can still be a complex and expensive process, defendants may consider it more economical to settle out of court.
As noted, it is increasingly likely that third-party litigation funding will take a larger role in English class and group action litigation. The consequences could be significant, opening up new claimants, types and scales of litigation to class and group actions not previously seen before. Third-party litigation funding also introduces a new dynamic when considering and negotiating settlement: although professional funders are legally prohibited from exercising control over the litigation they fund, the manner in which many funding packages are structured (with the cost of funds effectively increasing the longer a case progresses) may incentivise claimants to give fuller consideration to settling actions pretrial. Unlike in some other jurisdictions (notably the US), settlements in GLO and representative actions do not require court approval, though admissible settlement attempts may still have an impact upon the court's allocation of costs as between the parties if a settlement is not reached. The CPRs do not, however, contain any explicit guidance on how any settlement negotiations or agreements are to be managed.
In contrast, the CA contains provisions, implemented by the CRA, for a collective settlement scheme.68 Once a CPO has been made and proceedings are authorised to continue on an opt-out basis, claims may only be settled by way of a collective settlement approved by the CAT. The proposed settlement must be presented to the CAT by the representative and the defendant of the collective proceedings. The settlement need not apply to all of the defendants in the proceedings, merely those who intend to be bound by it. The CAT, however, may only make an order approving the settlement where it deems the terms to be 'just and reasonable'.69 If the time frame specified in the collective settlement approval order given by the CAT has expired, the collective settlement will be binding upon all those domiciled in the UK who fell within the CPO's defined class and did not opt out, and those domiciled outside the UK who otherwise fell within the defined class and opted in.70 Opt-in collective proceedings are not subject to such requirements, although they cannot be settled without the CAT's permission before the expiry of the time given in the collective proceedings for a class member to opt in to the proceedings.
The potential success of the collective settlement scheme will, however, be closely tied to a claimant's ability to use the collective action scheme. If the opt-out certification process proves to be unduly restrictive, the defendant will no longer be induced to settle. The residency provisions in the CRA may also present issues to the success of the collective settlement scheme.71 Defendants could be reluctant to pursue a collective settlement scheme since it does not automatically provide the 'global' settlement that they might be seeking, given non-UK domiciled individuals will need to opt in to any settlement.72 Nonetheless, certain other provisions may further promote settlement, for instance that any remaining unpaid damages are to be paid to charity.73 It, therefore, awaits to be seen how the collective settlement scheme is adopted.
England is a popular forum for the resolution of disputes, both domestic and international. The reasons for this include the sophistication and probity of English judges, the availability of lawyers and specialists in a range of fields, and perhaps above all, the pre-eminent place of English law in international commercial relations. While many claimants have traditionally (although unnecessarily) looked to the US to pursue relief through class actions, the Supreme Court's decision in Morrison v. National Australia Bank,74 which effectively barred securities actions without a US nexus,75 has caused potential claimants, including institutional investors, to reappraise the situation. The advent of opt-out actions under the CA, which are open to claimants domiciled outside the UK, and the increasing availability of third-party litigation funding, in combination with the pre-existing attractions of England as a forum, is likely to continue to drive an increase in this kind of work in the English courts.
The impact of the June 2016 Brexit referendum result remains at the forefront of practitioners' minds. EU law has a significant role with regard to class actions: the Recast Brussels Regulation contains a framework for the allocation of intra-EU jurisdiction as well as provisions for the reciprocal enforcement of Member State court judgments; and a multitude of statutory claims, particularly in the area of securities law and financial regulation, are based on EU law.76 The European Union (Withdrawal) Act 2020 was given royal assent on 23 January 2020 and the UK left the European Union on 31 January 2020. The Act repeals the 1972 European Communities Act but provides that most provisions will remain in full force until the end of the transition period, 31 December 2020. The Act does not allow for an extension of the transition period. The UK therefore has 11 months to negotiate the legal footing for its new relationship with the European Union. The avowed aim is for continuity and stability, and it may be a number of years before any change in this area materialises. By way of practical example, even after the UK's exit from the EU, key tenets of the EU competition regime will remain in effect because they are contained within the CA, a free-standing UK statute. Breaches of EU competition law in remaining EU Member States will remain actionable in England where an English court is willing to accept jurisdiction over a defendant. The law applicable to such disputes would be determined either according to rules analogous to the current regime77 or by reference to the formerly applicable, and substantively similar, UK rules.78 Thus, the outlook for the class action market in England remains positive, though it will still be an area to monitor as exit negotiations continue.
Outlook and conclusions
The number of high-profile, high-value class and group actions brought in England has continued to increase in recent years. The introduction of opt-out proceedings, combined with cases such as Mastercard, Vedanta and Lloyd, demonstrate the determination of both the legislature and the courts to develop this area, in particular as a key means for consumers to seek redress across a variety of sectors. The year 2020 is likely to be a pivotal one in determining whether this upward trend continues, for a number of reasons.
First, the Supreme Court's decision in Mastercard, which is expected to be delivered in the second half of 2020, will be crucial to the future development of the class action regime. A judgment that unduly restricts the ability of businesses and consumers to bring collective proceedings could discourage prospective claimants from pursuing opt-out collective proceedings in times to come, and it is difficult to see how the UK class action regime could develop in those circumstances. Conversely, a decision that provides claimants with the reassurance that it is possible to move past the certification stage with the right sort of claim may ignite the gathering momentum behind class actions in the competition sphere.
The Mastercard decision will be vital not only to the advancement of the opt-out regime, but also to class action expansion more broadly. At present, the opt-out regime only applies to competition actions. However, when the CRA was passed, it was envisaged by the legislature that it would eventually be extended to other legal areas. If the Supreme Court's decision appropriately balances businesses' and consumers' need to have access to effective redress with ensuring that defendants' rights are sufficiently protected, the opt-out regime is likely to be deemed a success, and the prospects of it being extended to other spheres may increase.
Second, how courts interpret and apply the decision in Vedanta is likely to have a significant impact on the accessibility of the UK class action regime to potential claimants. If courts embrace the decision, the widening of this jurisdictional principle to encompass parent company liability could provide fertile ground for class actions against multinational corporations, and is likely to be a major factor in the future growth of class actions in the UK.
Third, UK class actions are intrinsically linked to the UK litigation funder market and one of the primary reasons for the growth of class actions in the UK in recent years is the expansion of third-party litigation funding. A decade ago, the costs associated with pursuing class actions would have deterred action groups. Now, however, the litigation funding market is a developed market, both in terms of funder capacity and the number and size of funders. Funds are increasingly sophisticated, covering a broader range of actions than they did a few years previously. Furthermore, funders' appetite for pursuing class actions has increased with the realisation that these claims have the potential to be extremely lucrative. However, in the past year, the funding market has faced challenging questions. In light of the collapse of Burford Capital, scrutiny has increased on internal governance of litigation funders. In addition, the funding market is presently going through a period of consolidation, highlighted by Fortress Investment Group's takeover of Vannin Capital, and the merger between IMF Bentham and Omnia Bridgeway Holding. It remains to be seen whether the momentum that we have seen in the funding market will continue.
Ultimately, 2020 is shaping up to be an important year for the future of the class action market, with a number of key issues to be addressed.
1 Camilla Sanger is a partner and Peter Wickham and James Lawrence are associates at Slaughter and May. The authors would like to thank Charlotte McLean for her assistance in producing this chapter.
2 For convenience, 'England' and 'England and Wales' will be used interchangeably.
3 Representative actions can be traced back to the practice of the Court of Chancery. It was a requirement that all interested parties were to be present to end a dispute, although for the sake of convenience certain of those individuals who held similar interests would be selected to represent the group. See London Commissioners of Sewers v. Gellatly (1876) 3 Ch. D. 610, at 615 per Jessel M R.
4 CPR 19.10. English civil procedure is governed by the CPR and supplementary practice directions (PDs). These can be found, with commentaries and interim updates, in The White Book published by Sweet & Maxwell.
5 Consumer Rights Act 2015, Schedule 8, Part 1.
6 Walter Hugh Merricks CBE v. Mastercard Inc. and others (Case No. 1266/7/7/16).
7 CPR 3.1(2).
8 Vedanta Resources PLC and another (Appellants) v. Lungowe and others  UKSC 20. HT-2019-LIV-000005.
10 It is set out in the Civil Procedure Rules (which provide for and apply to representative actions and group litigation orders) at CPR 1.1, and in the Competition Appeal Tribunal Rules 2015 (which apply to collective proceedings) at Rule 4.
11 Dorothy Gibson v. Pride Mobility Products Limited (Case No. 1257/7/7/16). Pride Mobility is a distributor of mobility scooters that was found by the Office of Fair Trading (OFT) to have infringed the CA, following an agreement between several retailers that they would not advertise particular scooters online at a price below Pride Mobility's recommended retail price. The OFT's decision did not impose a penalty on Pride Mobility. A follow-on claim was brought by the National Pensioners' Convention on behalf of a class of approximately 30,000 people and was England's first opt-out collective action. At the end of 2017, the CAT determined that proceedings should be adjourned on the grounds that the proposed class could only comprise those directly affected by the scope of the OFT's original decision. The claimants declined to attempt to reformulate the proposed class, which would have been insufficiently large for the costs incurred to be met by the potential damages to be awarded, let alone compensate the class members, and the claim was withdrawn.
12 Road Haulage Association Limited v. Man SE and others (Case No. 1289/7/7/18).
13 UK Trucks Claim Limited v. Fiat Chrysler Automobiles N.V. and others (Case No. 1282/7/7/18).
15 Respectively Justin Gutmann v. London & South Eastern Railway Limited (Case No. 1305/7/7/19) and Justin Gutmann v. First MTR South Western Trains Limited and Another (Case No. 1304/7/7/18).
16 Respectively Michael O'Higgins FX Class Representative Ltd v. Barclays Banks PLC & Others (Case No. 1329/7/7/19) and Phillip Evans v. Barclays Bank Plc & Ors (Case No. 1336/7/7/19).
17 Vedanta Resources PLC and another (Appellants) v. Lungowe and others  UKSC 20, paragraph 44.
19 In 2015, VW admitted that 11 million cars worldwide had 'cheat devices' installed. These devices changed the performance of the vehicle during emissions tests to improve results.
20 According to an article published by Leigh Day, one of the law firms co-leading the claim.
21 Sharp v. Blank  EWHC 3078.
22 SL Claimants v. Tesco plc  EWHC 2858 (Ch).
23 CPR 19.6(4)(a). See too Howells v. Dominion Insurance Co Ltd  EWHC 552 (Admin).
24 Independiente Ltd v. Music Trading On-Line (HK) Ltd  EWHC 470 (Ch): the defendant's application for a direction under CPR 19.6(2) to prevent the claimant acting as a representative was dismissed in part on the grounds that a representative may act without the representee's authority as long as CPR 19.6(1) was fulfilled.
25 CPR 19.6(1).
26 The claimants were unsuccessful in obtaining a representative action as the class was so wide that it was impossible to identify members before and possibly after the judgment, too.
27 CPR 19.6.
28 John v. Rees and others  Ch. 345 at 370, per Megarry J.
29 CPR 1.1(2)(d).
30 CPR 19.11, PD 19B, Paragraph 6.1A.
31 R v. The Number 8 Area Committee of the Legal Aid Board  P.I.Q.R. 476 at p. 480, per Popplewell J.
32 CPR 19.10.
33 CPR 19.11(1).
34 There is no guidance contained within CPR 19, nor the accompanying PDs.
35 PD 19B, Paragraph 2.3(2).
36 This can be seen particularly in the recent actions brought under Section 90, FSMA.
37 The normal application procedure under CPR 23 should be used according to PD 19B, Paragraph 3.1.
38 The preliminary steps are detailed at PD 19B, Paragraph 2.
39 This information is contained at PD 19B, Paragraph 3.2.
40 CPR 19.12(1)(a).
41 Pursuant to CPR 19.12(1)(b).
42 Under CPRs 19.6 and 19.11.
43 Section 47B(6), CA.
44 Rule 79(2), CAT Rules 2015.
45 Lawne, 'Private enforcement and collective redress: A claimant perspective on the proposed BIS reforms'  Comp. Law 171.
46 CPR 19.13(e) and PD 19B.13.
47 Taylor v. Nugent Care Society  EWCA Civ 51.
48 Rule 79(2), CAT Rules. Rules 79(2)(a)–(g) give some guidance on the types of consideration that the CAT should have.
49 Rule 74(6), CAT Rules and Paragraph 6.37, CAT Guide.
50 Rules 80(1)(c) and 82, CAT Rules.
51 Rule 85(4), CAT Rules.
52 In relation to the timing of CPOs, the CRA implemented changes to the limitation period, extending it from two to six years so as to be on a par with the High Court.
53 In Re RBS (Rights Issue Litigation) In Claims entered in the Group Register (HC 2013 000484) (RBS), the trial was delayed for four months until April 2017 owing to the complexity of the disclosure process. Significant settlements were also reached in December 2016, January 2017 and June 2017.
54 Rule 63, CAT Rules. Competition claims are carved out of the Disclosure Pilot by CPR, PD 51U, Paragraph 1.4.
55 Britned Development Ltd v. ABB AB  EWHC 2616 (Ch).
56 BritNed was awarded only €11.7 million (plus interest) of the €180 million claimed.
57 Howells v. Dominion Insurance Company Ltd  EWHC 552 (Admin).
58 CPR 46.6(3). Common costs are the costs incurred in relation to GLO issues, or individual costs in relation to a test claim. The individual will be liable for all of their other individual costs in the claim.
59 Examples, such as RBS, have demonstrated either the difficulties in obtaining ATE insurance, or the influence that it has on the handling of the case. Securities class actions by way of an example are ordinarily relatively cheap for the claimant to bring in the early stages of the claim. However, during later stages of the litigation, particularly if other claimant groups have already settled, the adverse liability risks can be hugely important in determining the ongoing strategy.
60 While there was a concern to limit the number of claims on the introduction of the opt-out scheme, there have been suggestions that the prohibition of damages-based agreements (DBAs) would stifle the incentive to litigate given the significant costs involved in class actions (Bolster, 'The structure and funding of competition claims post-Jackson – “All change” or “Status Quo”'  Comp. Law 202). Moreover, there appears to be an unexplained inconsistency given that the DBA restriction does not apply to opt-in actions (Simor, Gibson et al. (2015) UK Competition Law – The New Framework, Oxford University Press p. 205).
61 Markt & Co Ltd v. Knight Steamship Co Ltd  2 KB 1021.
62 Independiente Ltd v. Music Trading On-Line (HK) Ltd  EWHC 470 (Ch).
63 With regard to the measure of damages for claims brought under Section 90 FSMA, a claimant is entitled to compensation for damages to cover loss suffered as a result of the misstatement or omission. FSMA, however, does not detail the measure of damages, nor is this subject to any direct authority.
64 Section 47C(1), CA.
65 Rule 93(1)(a), CAT Rules 2015.
66 Section 47C(6), CA. Criticisms have been levied at such a system that does not require all victims to exercise their rights to ensure the funder's effective repayment: A Higgins and A Zuckerman, 'Class actions come to England – more access to justice and more of a compensation culture, but they are superior to the alternatives'  CJQ 1. In turn, questions have been raised regarding the potential for conflict between funders and representatives on the one hand, and claimants on the other. The government was concerned about this and initially considered not allowing law firms or third parties to act as representatives. While this provision was removed from the final draft, the CAT Guide, Paragraph 6.30 states that 'conflict between the interests of a law firm or third-party funder and the interests of the class member may mean that such a body is unsuitable to act as a class representative'. Given the potential conflict of interest in a conceivably large proportion of claims, it awaits to be seen what influence this guidance has on the CAT's determinations in certification hearings.
67 Section 47C(5), CA.
68 Section 49A, CA.
69 Section 49A(5), CA.
70 However, the likelihood that this covers all potential claimants is still limited.
71 Lawne, 'Private enforcement and collective redress: a claimant perspective on the proposed BIS reforms'  Comp. Law 171.
72 Section 49A(10)(b), CA.
73 Section 47C(5), CA.
74 561 U.S. 247 (2010).
75 'Foreign-cubed' claims, at issue in Morrison, were those made by non-US investors against non-US issuers to recover losses from purchases on non-US securities exchanges.
76 For instance, Section 90A FSMA implemented EU Directive 2004/109/EC.
77 For instance, a domestication of the Rome II Regulation (Regulation (EC) No. 864/2007).
78 For instance, Section 15A, Private International Law (Miscellaneous Provisions) Act 1995.
79 According to the Class Action Report 2020, the value of litigation funders' balance sheets rose by 31 per cent to £1.3 billion in 2018/2019. This figure was £726 million in 2015/2016.