Group claims – which procedural route should I use?

Posted: 23/09/2024

Group litigation has become a key tool for claimants seeking cost-effective collective redress. However, managing large-scale disputes and navigating the complexities of the court rules on class actions requires specialist knowledge. Penningtons Manches Cooper’s group actions team is delighted to have been asked by LexisNexis to produce a practical guide to group litigation.

Partner Michael Brown, and senior knowledge lawyer Harriet Campbell, have authored a concise guide to the essential aspects of group litigation, highlighting how to manage the process efficiently, while evaluating the potential risks and benefits of the different ways of running group litigation.

Below is an overview of the key points covered by the guide. It can be accessed in full via the link at the end of the article (a LexisNexis subscription is required).

Group claims – the options

Group claims (also known as class actions or multi-party claims) can be brought before the English courts in a number of different ways. The guide addresses the requirements for each procedural method, and the guidance given on suitability in recent case law. It also considers the advantages and disadvantages of each option and provides practical guidance (and a comparison checklist) on managing such claims.

The key methods for bringing group litigation before the English courts include:

joint claims issued in a single claim form;
sample claims;
claims managed under a group litigation order (GLO); and
representative claims.

How do you choose the right method for a group claim?

For most group claims, more than one procedural method will be available. However, not all methods will be available in every case, and it is important to consider the best approach at the outset. Selecting the wrong method can result not only in administrative difficulties but also adverse costs orders or the entire claim being struck out.

In Smyth v BA [2024] EWHC 2173 (KB), for example, the court held that a claim could not proceed as a representative claim, because the claimant class did not have the ‘same interest’ in it. As a result, the court struck out the claim under CPR 3.4(2)(b) and (c), and made an order that Ms Smyth could not act as a representative under CPR 19.8(2).

Practical points

Even where the correct procedural method has been used, the court retains a wide discretion to permit or prohibit group litigation. Recent case law on joint claims has clarified that when exercising its discretion, the court must consider the ‘convenience’ of permitting the joint claim.

In relation to representative claims, in Smyth v BA the court suggested it would not have exercised its discretion to permit the claim to proceed as a representative claim in any event, because the dominant motive behind it was the financial interests of its backers and not the interests of consumers. Further, the court held the proposed deduction from compensation to be paid to the claim’s funder and for legal fees was ‘excessive and disproportionate’. Understanding the costs of managing group litigation and the availability of third-party funding is crucial when it comes to running a group claim.

Whatever mechanism is selected, that choice must be justified by reference to the overriding objective of enabling the court to deal with cases justly and at proportionate cost under CPR 1.1.

The full guide provides comprehensive and practical commentary on the options available, and is available for LexisNexis subscribers via the following link: