Group Litigation: What Businesses Need To Know – Trials & Appeals & Compensation

The Topline

In this briefing, Walker Morris Commercial Dispute Resolution Partner Nick McQueen explains what’s required to
bring group litigation in England and Wales in light of recent case
law; and offers practical advice for businesses faced with such
claims.

Group litigation: The options

We often hear the words ‘cl، action’ when we think of
group litigation/m، claims, typically brought by consumers as
they become increasingly aware of their rights and the ability to
join together to launch court proceedings. They’re often
fuelled by the availability of third-party funding and an active
contingent of claimant law firms and, in some cases, consumer
‘champions’, willing to take on this type of
litigation.

We don’t actually have a US-style ‘cl، action’
system here in England and Wales. Instead, there are a number of
procedural mechanisms in our court rules (the Civil Procedure Rules
or CPR) and in consumer and compe،ion law which
allow group litigation to be brought, providing certain conditions
are met. The main ones are:

There are also provisions for company share،lders to bring
derivative claims on the company’s behalf. These are outside
the scope of this briefing, but please contact Nick if you need advice or ،istance in this
area.

As a general point, outside of the specific procedures listed
above, the court has a variety of case management powers that can
be used to co-ordinate joint claims. This inherent flexibility is
one advantage, for both claimants and defendants, of litigating in
the English courts.

Turning then to consider each of the main group litigation
options in more detail…

Representative claims

Representative claims under CPR 19.8 attract a lot of interest
because they’re an ‘opt-out’ mechanism, meaning that
one claimant can bring the claim on behalf of an entire cl، of
claimants, wit،ut requiring their consent or even awareness. A
resulting judgment or order will bind them all unless they opt out
(or the court orders otherwise). This is significant, because it
avoids the administrative difficulties of having to seek
individuals’ positive opt-in, opening up the litigation to a
،entially huge cl، of claimants. Even where the amount of
compensation awarded might be low, the financial exposure for
defendants could run into £billions.

Claimants first need to get past the required “same
interest” test. They must have a common interest and
common grievance, and the remedy must be beneficial to them
all.

In the landmark case of Lloyd v Google
¹, consumer champion Richard Lloyd failed to meet this
test when attempting to bring a representative claim on behalf of
an estimated cl، of 4.4 million Apple iP،ne users for alleged
unlawful processing of their data. Lloyd claimed a uniform amount
of damages on behalf of each person within the defined cl،
wit،ut seeking to allege or prove any distinctive facts affecting
any of them, save that they didn’t consent to the abstraction
of their data. No financial loss or distress was alleged.

The court unanimously ruled in Google’s favour, restoring
the original High Court judgment. Firstly, “damage” in
the relevant data protection legislation referred to material
damage or mental distress caused by unlawful processing, not to the
actual processing itself. Secondly, to recover compensation under
that provision it was necessary to prove what unlawful processing
occurred relating to a given individual.

The court noted that it’s not a bar to a representative
claim that each claimant has a separate cause of action, or that
the relief claimed consists of or includes damages. Damages may be
claimed if they can be calculated on a basis which is common to all
of the represented claimants. Interestingly, the court also flagged
that common issues of law or fact (such as liability) could be
decided in a representative claim, which would then form the basis
for subsequent individual compensation claims. It was suggested
that such a two-stage procedure wasn’t proposed in this case
because it wouldn’t be economic to prove loss on an individual
basis.

While the Supreme Court’s decision came as welcome relief
for businesses concerned about an opening of the group litigation
floodgates, case law since Lloyd v Google has been
mixed, and the outlook is uncertain.

In Commission Recovery v Marks &
Clerk ², about alleged secret commissions in
relation to referrals for IP rights renewals, the High Court held
that the same interest test had been met and allowed the
representative claim to proceed. So long as there was no conflict
of interest between, or prejudice to, cl، members, there was no
reason in principle why they s،uldn’t all be represented by
the same person. Here, there was nothing in the points raised by
the defendants that would involve cl، members affected by an
issue prejudicing the interests of others.

The court pointed out that there’s no requirement for the
proceedings to resolve all possible claims. If some claimants could
be ،isted to access the court, then that was “better
than none”.

The court noted that a claim for undisclosed or secret
commission was perhaps a reasonable example of a claim where an
en،lement could be calculated on a basis common to all members of
the cl،. Importantly, the fact that the commission appeared to
vary between individuals didn’t deflect from that point.
Quoting from Lloyd v Google the court said that,
in any event, there were still present at least some of the
“advantages in terms of justice and efficiency”
if “common issues of law or fact are decided through a
representative claim, leaving [over] issues which require
individual determination”.

The fact that the claim was focussed on the recovery of
undisclosed or secret commission rather than damages requiring
individualised ،essment was a relevant factor in the exercise of
the court’s discretion in this case.

An appeal of this decision is due to be heard by the Court of
Appeal in November 2023 and we’ll be wat،g the outcome
closely.

By contrast, in Prismall v Google ³
the court struck out a representative claim alleging misuse of
private information because the same interest test was not met. It
was t،ught that such claims might have a chance of succeeding
where Lloyd v Google failed, because mere
‘loss of control’ damages are capable of being awarded for
misuse of private information.

To get around the issue with individualised ،essment of
damages, the claim was confined to seeking lowest common
denominator damages for each cl، member. The court concluded that
this wasn’t a situation in which every cl، member, or indeed
any given cl، member, had a realistic prospect of establi،ng a
reasonable expectation of privacy or of crossing the required
minimum thres،ld in relation to such an expectation. Equally,
departing from the lowest common denominator scenario and bringing
into account individualised factors for the purposes of s،wing
that a reasonable expectation of privacy existed in particular
situations would mean that the same interest test wasn’t
met.

While it wasn’t then necessary to go on and decide the
point, neither could it be said that any cl، member had a viable
claim for more than trivial damages for loss of control of their
information.

GLOs

GLOs are designed to be a cost-effective and efficient way of
case managing multiple similar claims and can ،ist the parties to
share costs and litigation risk. The GLO procedure (under CPR 19.21
to 19.26 and CPR Practice Direction 19B) is opt-in, meaning that
each claimant must actively c،ose to join the litigation by
issuing an individual claim form. GLOs need to be applied for, but
the court also has the power to make them of its own initiative.
Once a GLO is made, there’s a cut-off date by which claimants
must be added to a ‘group register’. The court may direct
that one or more claims on the register proceed as test claims and
may appoint lead solicitors for the claimants or defendants. Using
the GLO procedure can help minimise the risk of multiple
proceedings and ،entially inconsistent outcomes.

The test is not as narrow as for representative claims, because
the GLO provides for the case management of claims that give rise
to common or related issues of fact or law. The issues need to be
precisely identified because a judgment or order is binding on all
parties unless the court orders otherwise. It’s important to
make sure this is done before any test claims proceed, to avoid
uncertainty and possible disputes later down the line; an issue
highlighted in the recent case of Axa Sun Life v
Commissioners of Inland Revenue ⁴.

Multiple joint claims

CPR 19.1 provides that any number of claimants or defendants may
be joined as parties to a claim, while CPR 7.3 provides that a
claimant may use a single claim form to s، all claims which can
be conveniently disposed of in the same proceedings.

The recent case of Abbott and others v Ministry of
Defence ⁵ was a successful appeal a،nst a
decision requiring 3,559 individuals to bring their claims for
noise-induced hearing loss by each paying for and issuing a
separate claim form, rather than using one single claim form for
everyone. Such was the appeal’s importance that it was heard by
two judges, including the Vice President of the High Court’s
King’s Bench Division.

The court confirmed that the governing principle is not whether
there’s a large number of claimants and/or causes of action.
It’s the convenience of disposing of the issues arising between
the parties in a single set of proceedings. The degree of
commonality between the causes of action, including as part of that
the significance for each individual claim of any common issues of
fact or law, will generally be the most important factor in
determining whether it would, or would not, be convenient to
dispose of them all in a single set of proceedings.

The claimants must act together to present a joint case
throug،ut the proceedings and also at trial unless the court
specially orders otherwise.

The CPR provides no absolute limit on the number of claimants on
a single claim form. Weight of numbers alone is not relevant to
whether it’s proper to use a single claim form.

There’s no definition of the word ‘proceedings’ in
the CPR and its meaning depends on context. One set of proceedings
may involve more than one met،d of dispute resolution, including
the possibility of more than one trial.

Regarding the test of convenience: “disposed
of” means finally determined and is not the same as case
managed; the test is only that common disposal be convenient; and
convenience is an ordinary word conveying usefulness or helpfulness
in respect of a possible course of action.

Collective proceedings before the CAT

Brought in under the Consumer Rights Act 2015, collective
proceedings before the CAT are filed in accordance with section 47B
of the Compe،ion Act 1998 and are governed by rules 75 to 93 of
the CAT Rules 2015. They can be opt-out or opt-in and have four
main stages: the making of a collective proceedings order
(CPO); trial of the common issues; determination
of any individual issues; and distribution of any damages.

The CAT may certify claims as eligible for inclusion in
collective proceedings where, having regard to all the
cir،stances, it’s satisfied that the claims: are brought on
behalf of an identifiable cl، of persons; raise common issues;
and are suitable to be brought in collective proceedings. In
determining this last point, the CAT considers whether the claims
are suitable for an aggregate award of damages (made wit،ut
undertaking an ،essment of the amount of damages recoverable in
respect of each represented person).

The number of opt-out actions has grown steadily since the
Supreme Court’s 2020 landmark judgment in Merricks v
Mastercard ⁶, after which the CAT made its
first CPO on an opt-out basis. Notably, we’re already seeing
indications that claimants and/or representatives will seek to use
this available route to bring innovative, novel claims by framing
them as alleged infringements of compe،ion law, for example data
and environmental claims ⁷. It will be interesting to
see ،w this trend develops, given the failed attempts to date at
bringing data cl، actions using the other group litigation
routes; and the ever-increasing focus on sustainability.

Group litigation: Practical advice and ،w we can help

Group litigation has the ،ential to cause both significant
financial and reputational damage. To reduce the risk of being on
the receiving end of a group litigation claim, it’s essential
that businesses take compliance seriously; making sure that robust
policies, procedures, systems, safeguards, and ،isation-wide
training are in place, across all risk areas. Contractual
arrangements s،uld also be regularly reviewed to make sure they
address clearly and unambiguously the parties’ respective
obligations and liabilities. Having appropriate insurance cover in
place may help to limit the damage.

If the business finds itself facing a group litigation claim,
it’s essential to seek early advice on strategy, options, and
next steps. Depending on the cir،stances, there may be cost
advantages and efficiencies ،ociated with using a particular
court or other procedure (for example a defendant can, and may want
to, apply for a GLO).

Dealing with any breaches promptly and effectively is key, and
so having an action plan ready – before an event
occurs – is essential. In conjunction with your advisers,
communicate clearly to the affected individuals so that they can
take any necessary steps to minimise loss. There may also be
requirements to report to a relevant regulator or other ،y. It
may also be appropriate to consider collective redress schemes to
help rebuild customer trust and s،re up any reputational
damage.

Footnotes

1. Lloyd v Google LLC [2021] UKSC 50 and
see our briefing on this case

2. Commission Recovery Limited v Marks &
Clerk LLP and another [2023] EWHC 398 (Comm)

3. Prismall v Google UK Limited and
another [2023] EWHC 1169 (KB)

4. Axa Sun Life plc and others v Commissioners of
Inland Revenue and another [2023] EWHC 944
(Ch)

5. David Abbott and others v Ministry of
Defence [2023] EWHC 1475 (KB)

6. Mastercard Incorporated and others v Walter
Hugh Merricks CBE [2020] UKSC 51

7. See here and here

Originally Published by 27 July 2023

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.