On the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing
With Advent upon us, and Christmas on the horizon, RPC takes a musical look back at the most important English judgments of 2018. Liability for all failures of numbering, rhythm and rhyme is hereby excluded.
Unlike Scrooge, litigation will not wake transformed on Christmas Day into a gentler, kinder activity. But it is undergoing a slower transformation with the growth of various forms of group litigation in England.
The Ghost of Group Litigation Past
Historically, similar claims could be brought in one claim form (writ), or, if brought in separate proceedings, case managed together. Representative claims could also be brought in some circumstances, where one person had the same interest as a specific group of people (eg all the beneficiaries of a trust).
In 2000, in response to perceived difficulties with these mechanisms, Group Litigation Orders were created, which the court might grant where a large number of claims raised common or related issues of fact or law. So far, however, only some 107 have been made since autumn 2000, ie an average of about six a year.
Since 2015, collective redress in private damages actions in competition claims can be brought on an "opt in" or "opt out" basis, as determined by the court, where there are the same, similar or related issues of fact or law. There have been four applications to date although none has been certified as yet.
The Ghost of Group Litigation Present
2018 has tested the limits of these different mechanisms (or should that be rattled the chains of?).
In Lloyd v Google LLC, a representative claim for alleged breach of the Data Protection Act 1998 (the DPA), the court found that the representative claimant and the class did not have the "same interest" and it was too difficult to determine who was a member of the class. It was therefore not willing to allow the claim to continue. However, in Various Claimants v Wm Morrison Supermarkets plc, claims relating to wilful breach of the DPA by a disgruntled employee of the company conducted under a group litigation order, the court held that the company was vicariously liable for the employee's breach.
The courts were also prepared to be lenient to claimants in terms of evidence. In Bates v The Post Office No 2, claims by sub-postmasters in relation to alleged failures of the Royal Mail's accounting system conducted under a group litigation order, the court declined to strike out extensive parts of the lead claimants' evidence, taking the view that it should be harder to strike out evidence in group litigation rather than easier.
But there was a sting in the tail, in the way of costs. In Atlasjet Havacilik Anonim Sirketi v Kupeli and others, the claimants, whose claims for failed flights were being managed together, were not able to recover their costs, even though the airline was held liable to some of them. And in Crossley v Volkswagen Aktiengesellschaft, the group litigation relating to the Volkswagen emissions scandal, a premature application for a group litigation order resulted in an indemnity costs order against the claimants.
The Ghost of Group Litigation Yet to Come
Further limits will be tested, or more chains rattled, in 2019. We await the results of the appeal in Merricks v Mastercard Inc, an opt-out claim in the Competition Appeal Tribunal (the CAT) purportedly on behalf of UK consumers. The claim had been dismissed by the CAT as unsuitable for collective proceedings, but the Court of Appeal will have a chance to reconsider it. The CAT will also be considering two collective actions arising out of the trucks cartel – one brought on an opt-in basis and the other on an opt-out basis. It remains to be seen if either or both of these will be certified.
Looking further afield, the European Commission has now published proposals for a European directive which would effectively introduce a European procedure for collective redress where qualified entities would be able to bring representative actions on behalf of consumers - whether Member States will endorse the Commission's proposals (and how it will fit with the post-Brexit regime) remains to be seen.
With the growth of litigation funding, the increasing familiarity with contingency fee agreements among lawyers and the proliferation of options, it seems likely that group litigation in its various forms will continue to grow. But, particularly with the costs shifting principle firmly in place, it seems unlikely that it will evolve into US-style class actions any time soon.
The Twelve Judgments of Christmas (2018)
On the first day of Christmas, the High Court gave to me…a privilege in E-N-RC.
On the second day of Christmas, the High Court gave to me…two LIBOR reps.
On the third day of Christmas, the High Court gave to me…three corporate crimes.
On the fourth day of Christmas, the High Court gave to me…four contracts.
On the fifth day of Christmas, the High Court gave to me…five time bars!
On the sixth day of Christmas, the High Court gave to me…six exclusion clauses.
On the seventh day of Christmas, the High Court gave to me…seven fraudsters fleeing.
On the eighth day of Christmas, the High Court gave to me… eight duties owing.
On the ninth day of Christmas, the High Court gave to me… nine losses mounting.
On the tenth day of Christmas, the High Court gave to me…ten claims a-noticed.
On the eleventh day of Christmas, the High Court gave to me…eleven groups a-growing.
On the twelfth day of Christmas, the High Court gave to me…[to be continued]
 According to the HM Courts and Tribunals Service: see here.
  EWHC 2698
  EWHC 2308 (QB)
 Having decided in R (Merricks) v CAT  EWCA Civ 2527 that it had jurisdiction to do so.