Multiple joint claimants
The Civil Procedure Rules (CPR) permit multiple parties to join forces and issue a joint claim, as long as those claims can be "conveniently" disposed of in the same proceeding. Claims brought separately might also, subsequently, be consolidated, if the court considers that to be appropriate.
Same interest representative action
The Civil Procedure Rules (CPR) allow one or more representative person(s) to bring a claim on behalf of others who have the "same interest". This can be a fairly restrictive test to satisfy; representative claims will only be allowed where the group represented is clearly identifiable by factors unrelated to the claim in question. This procedure has, however, been used in a variety of different circumstances, such as a tenant suing a landlord on behalf of other tenants in the same block.
The representative does not have to obtain the permission of the represented persons in order to bring the claim and the representative can conduct the litigation as he chooses. A person who objects to being represented can, however, apply to be excluded from the representative proceedings.
Any decision in a representative action will be binding on those represented. However, the decision can only be enforced by a named party, unless the court orders otherwise.
As above, before the Court will allow a representative action the strict CPR conditions must be satisfied. In November 2010, in Emerald Supplies Ltd v British Airways plc, the Court of Appeal considered an attempt to use the representative action mechanism to bring an action on behalf of anyone who had suffered loss, directly or indirectly, as a result of a cartel amongst air freight carriers. It upheld a decision to strike out the representative element of the claim, on the ground that the conditions of CPR r.19.6 could not be satisfied; the group was insufficiently defined and the nature of their losses differed too greatly, particularly as in respect of some claims the defendants could argue that the loss had been passed on to others in the form of higher prices for imported goods. The claimant and those it sought to represent did not have "the same interest" required.
The Emerald decision was then applied in Millharbour Management Ltd v Weston Homes Ltd, in which the Technology & Construction Court considered that two individuals did have the same interest and could represent other leaseholders in respect of a claim alleging defects in the construction of a large block of flats. The claimants could all be identified, and the claims of the representatives and those being represented all derived from the same defects, the same causes of action and the same loss, and there was no evidence that the defendant would deploy anything other than generic defences.
Representative action by a specified body or member of the class
A form of statutory representative action was introduced into the Competition Act by the Enterprise Act 2002, to enable a "specified body" to bring representative claims in the Competition Appeal Tribunal (CAT) on an opt-in basis. A claim could be brought on behalf of named individual consumers (but not businesses) for damages against companies previously found by the EC or UK authorities to be guilty of infringing competition law. Once the authorities find the company guilty, liability is established and any "follow on" civil actions for compensation need only establish causation and the quantum of damage.
A consumer organisation, Which?, became the first "specified body" under the Competition Act; it brought a follow on action on behalf of consumers who had bought replica football shirts. JJB Sports had been found to have infringed the competition rules and was fined by the Office of Fair Trading (OFT) in 2003 for price fixing in relation to sales of the shirts. The individual consumers were identified through advertisements in the regional press and through the campaign pages of the Which? website. Although an estimated two million consumers were affected, only about 500 finally opted in to the action. The matter culminated in an out of court settlement, and JJB Sports announced that it would also compensate all other eligible buyers of the shirts, though at a lesser rate, even if they had not registered as claimants in the representative action before the settlement was reached. Overall, however, the action was not regarded as a success for Which?, which said publicly that it would not bring any further representative cases under these statutory provisions.
Schedule 8 of the Consumer Rights Act 2015 amends the Competition Act 1998 to allow standalone (not just “follow on”) damages claims to be brought by a wider set of representatives, including a member of the class harmed, on either an opt-out or an opt-in basis at the CAT’s discretion. “Opt out collective proceedings” do away with the need for named individuals to give consent to joining the action. Instead, the collective action is brought on behalf of every class member except those that have expressly opted out (or those that are domiciled outside the UK and have not opted in). Collective proceedings must be authorised by the CAT and commenced by a representative authorised by the CAT, which will ask whether it is just and reasonable for that person or body to bring the proceedings. Claims are eligible for inclusion in collective proceedings only if the CAT considers that they raise the same, similar or related issues of fact or law and are suitable to be brought in collective proceedings. The CAT is expected only to authorise a representative that is able to pay the defendant’s recoverable costs if ordered to do so, and is able to satisfy any undertaking as to damages if an interim injunction is imposed.
In July 2017, the CAT rejected an application for a Collective Proceedings Order (CPO) in a claim on behalf of 46.2m individuals against Mastercard for increased credit card fees that had been held to infringe competition law and had been passed on to them through retail prices. The CPO would have enabled the largest legal action ever commenced in England to proceed. The Tribunal found that the claims were not suitable to be brought in collective proceedings, though this decision is to be appealed in the Court of Appeal in the autumn of 2018. Our elexica article on this can be found here. In May 2018 an application for an opt-out class certification was made to the CAT in relation to the cartel between truck manufacturers that the European Commission found operated between 1997 and 2011. This is the first occasion on which an SPV has been established to bring an opt-out claim. For more on this development, see our article.
The limitation period that will apply for collective actions is the same as that in the other types of tort claim - namely six years from the date on which the claimant has enough information about the claim to bring an action that will not be struck out for lack of specificity. A collective action will be heard by a panel of judges in the CAT. Collective proceedings will be heard by a three member Tribunal. No punitive damages can be awarded in collective proceedings. Damages may be paid to the representative, or to any other person, other than one of the class members, as the Tribunal sees fit. The Tribunal will give directions for assessing the amount that any individual member of the class is entitled to receive, either a method for quantifying the amount, or that an independent third party should determine the amount (or resolve any disputes as to the amount, or that the Tribunal is to approve the apportionment of the award. Any funds that remain unclaimed may either be paid to a specified charity, or, at the Tribunal’s discretion, to the representative to help defray the costs of bringing the proceedings.
The course of collective actions can be tracked using the CAT’s website.
The Consumer Rights Act 2015 also introduced two other collective measures: a collective settlement mechanism and a system of voluntary redress, where the infringer offers to compensate those harmed without recourse to litigation.
Since 01 October 2015, there has been a pilot of a test case scheme in a specialist court dealing with financial markets claims (the Financial List). The Financial List will deal with claims worth over £50m (or of “general importance” if lesser value) which involve issues relating to the financial markets. A “qualifying claim” for the test case scheme is one which “raises issues of general importance to the financial markets in relation to which immediately relevant authoritative English law guidance is needed”; there need not be an actual dispute or present cause of action between the parties, and trade bodies or associations may join as parties. Parties with opposing interests who are or were actively in business in the relevant market can, by mutual agreement, issue a claim.
Group litigation orders
Whilst the representative procedure under the CPR is suitable for certain types of multi-party action, it is not suitable for dealing with large numbers of claims brought in relation to similar or related facts. An application can be made to the court for claims involving multiple parties giving rise to "common or related issues of fact or law" to be dealt with by way of a Group Litigation Order (GLO), enabling the court to manage the claims covered in a coordinated way. In considering an application for a GLO in Arif & Ors v Berkeley Burke Sipp Administration Limited  EWHC 3108, the court balanced various factors, including the respective number and weight of claimant-specific issues and common issues, taking the view that where individual claimants’ cases would be far advanced by a determination of the common issues (even where claimant-specific issues may still fall to be determined) the making of a GLO would save time and cost, in furtherance of the overriding objective.
There is no restriction on the remedies available.
The GLO procedure provides the court with a wide range of case management powers, enabling the court to manage the cases in an efficient and therefore more cost effective manner. In relation to costs, a distinction is made between individual costs and common costs. A litigant will, broadly, be liable for a specific proportion (but no more) of the costs relating to issues common to all members of the group, as well as all the costs relevant to issues unique to his claim. One advantage for claimants is that the costs of the lead solicitor are split between the claimants on the register. This can encourage actions to be brought which might otherwise not have been pursued because they would not have been cost effective.
Despite the fact that this is a wider test than the requirement for the "same interest" in representative actions as described above, as at December 2017 there had only been 101 GLOs made since the introduction of the regime in May 2000.
A current list of all GLOs made is available here.
Since 01 October 2015, the Competition Appeal Tribunal (CAT) has permitted “opt out” class actions in competition law claims before the CAT. To date, so far as we are aware, only two applications have been made to the CAT for a collective proceedings order (CPO). The CAT rules set out the procedures for collective proceedings; the CAT has a discretion to make a CPO (and associated directions) if it considers that the claims sought to be included in the collective proceedings are brought on behalf of an identifiable class of persons, raise common issues, and are suitable to be brought in collective proceedings.
The Financial List is a “specialist cross-jurisdictional list set up to address the particular business needs of parties litigating on financial matters”. Whilst not strictly a collective redress mechanism, it is of interest that the Financial List allows parties with “opposing interests” and/or trade associations or bodies (even where there are no actual proceedings or even a cause of action) to ask the Court to resolve “…market issues in relation to which immediately relevant authoritative English law guidance is needed."