Class actions in England and Wales: a client guide

Posted: 24/11/2023

Class actions are becoming increasingly popular in England and Wales, with this type of litigation ranging from those claims brought together by a few individuals to ‘opt-out’ collective or representative proceedings which may be brought on behalf of potentially millions of individuals. The infrastructure in England and Wales to manage such claims is becoming more sophisticated, with the court, claimant law firms and third-party litigation funders all well-rehearsed in managing and advancing such class litigation.

This note briefly summarises the various ways in which a class action may be brought in England and Wales by either a business or a consumer.

Types of class action

There are four ways to bring a class action in England and Wales:

• multiple claimants suing the same defendant(s) using the same claim form;
• group litigation orders;
• collective proceedings; and
• representative proceedings.

Each is set out in turn below.

Multiple claimants suing the same defendant(s) using the same claim form

The Civil Procedure Rules (CPR) in England and Wales allow for several claimants to bring their claims together, using one claim form, against one or more defendants, as long as the claims ‘can be conveniently disposed of in the same proceedings’.

Every claimant in this type of claim will have to take proactive steps to participate (it is, in other words, an ‘opt-in’ claim). Law firms who are building or running these types of claims often advertise it or, in relation to smaller class actions, rely on word of mouth to generate interest. The law firm will verify each claimant’s claim and then run it under the claimant’s instruction.

The result is a time-consuming process where significant investment and resource must be advanced in analysing each claimant’s case on an individual basis to make sure that the claims brought by the group are all legally sound. Due to the requirement for active participation by every claimant, most claims brought on this basis remain small, and many people who have suffered loss might never become aware that there is a potential redress (nor will they be entitled to a remedy, even if it is found that a defendant has committed a wrong, unless they advance their own claim).

Class actions of this type benefit from the growth of technology, such as the rise of automated client registration and administration, which significantly saves time and costs in managing claims. Such cases are often conducted under conditional fee agreements (CFAs) – also known as ‘no win no fee’ cases – or with litigation funding. They often also proceed with after the event (ATE) insurance which protects the claimant against any liability for the other side’s costs in the event that the claim is not successful.  

These types of claims are, and have historically been, the most common form of class action. It is technically permissible for any number of claimants to bring a claim together using the same claim form. In determining whether multiple claims can be disposed of in the same proceedings, the court will consider the degree of commonality between the causes of action.

However, in Abbott v Ministry of Defence [2022] EWHC 1807 (KB), Master Davison held on the facts of that case that it was an abuse for 3,500 claimants to issue their individual tort claims together on a single claim form. The divisional court later overturned that decision, finding that commonality does not require that judgment in a few leading cases will determine the rest of the cases in the claim, but it is enough that deciding common issues would make real progress towards the determination of each individual claim[1].

Whilst the divisional court’s judgment was clear that it was permissible for any number of claimants to bring a claim together using one claim form, this is now being challenged in a separate case before the Court of Appeal (for which Penningtons Manches Cooper acts for the claimants in a multi-million pound group action claim).

Group litigation orders

Claimants, including those instructing the same solicitor, may opt to issue individual claims and then apply to manage them together through a group litigation order (GLO), which is a mechanism to manage individual claims that give rise to common or related issues of fact or law. All claims related to the matter in question must then be issued in the same court, avoiding multiple disparate proceedings.

Since their introduction in 2000, there have only been 112 GLOs granted, and they remain relatively uncommon with just one granted in each year between 2019 and 2021, only two ordered in 2022, and none in 2023 to date. Reasons for the lack of uptake may include the often long and costly process of defining common issues, which needs to be done while also ensuring that individual circumstances and issues are properly addressed, and the need for coordination and cooperation between different claimant cohorts and their representatives. There is no shortcut to this process, and prematurely applying for a GLO can result in the claimants being ordered to pay the wasted costs of the defendant.

Despite the lack of recent uptake, GLOs have significant benefits which mean that they are likely to be of use for many years to come. The initial cost of defining common issues can be of benefit in focusing on how the claims should proceed, and the high degree of case management can ensure that the proceedings move swiftly and at proportionate cost. GLOs are also publicised which can help to encourage further claimants to join the action – and may reduce a claimant’s share of the total costs of the proceedings.

Further costs reduction can be made by sharing the work done (both legal and administrative) between each claimant group’s solicitor, thereby reducing the burden on each. Finally, different claimant types being represented by different firms of solicitors can be a benefit to each claimant group, given the potential for conflicts of economic interest between them.

Although not appropriate in many cases, GLOs have significant benefits in complex cases with disparate claimant groups. In these situations, GLOs may provide the swiftest and most cost-efficient mechanism to redress.

Collective proceedings

The most recent addition to group litigation in England and Wales is the introduction of ‘opt-out’ collective proceedings. These are currently available only for competition claims, either as a ‘follow on’ claim (where there has already been a judicial finding of competition law breach) or ‘stand-alone’ claim (where there has not). 

Opt-out claims allow a party to bring a claim on behalf of an entire class without the express consent, or even knowledge, of each member of that class. If the court allows an opt-out claim to proceed, and unless a member of the class opts-out (ie serves a notice to be excluded from the claim), then any remedy awarded will be binding on and available to all members of the class. Opt-out claims, depending on the size of the class, can be enormous, and are generally financed by third-party litigation funders. Damages can be awarded on an aggregate basis without undertaking an assessment of the amount of damages recoverable in respect of the claim of each represented person.

In the UK, opt-out competition claims have generally involved claims by consumers who would never have been able to bring proceedings individually. However, in July 2023, the Court of Appeal permitted a claim on behalf of sophisticated business claimants to proceed using the opt-out procedure[2]. Such actions are on the rise, and we will undoubtedly see many more approved claims, on behalf of both consumers and businesses, in the years to come.

Representative proceedings

In 2021, the UK Supreme Court handed down its decision on whether an opt-out claim against Google, which was outside of the competition sphere and brought under the CPR, was permitted[3]. The Supreme Court dismissed this claim but determined that such representative actions are conceptually possible where each claimant is functionally identical. In reality, such non-competition opt-out claims will be rare as nearly all claims require assessment of an individual claimant’s loss. The result of the UK Supreme Court decision is that claims which are unsuitable for opt-in proceedings may seek a competition angle so that they can be brought as collective (and not representative) proceedings.

Conclusion

The number of class actions in the UK is rapidly increasing and is being used to litigate a wide variety of disputes. The vast majority of those claims will be brought by multiple claimants using a single claim form, but the number of collective proceedings related to competition is expected to increase exponentially in the coming years. The legal industry is additionally primed for reform or innovation in relation to representative proceedings.

Our group action litigation team

For more information about our specialist class action team, including details of some of the class actions we are currently investigating, including claims against online trading platforms for potentially misleading information about the risks, costs, or product details of spread betting and CFD trading, and a claim against umbrella companies on behalf of contractors, please see our group action litigation page.

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