Group Litigation Orders (GLOs): GLOs enable the collective case management of multiple individual claims involving common issues of fact or law. It is an ‘opt in’ procedure whereby every individual claimant must be named on a claim form and then listed on the ‘group register’ if they meet the criteria for the group. The court appoints a single managing judge and all cases are transferred to the High Court. The cases are managed collectively, which can include appointing lead claimant solicitors, using generic pleadings, provisions for advertising the GLO, and a cut-off date by which claimants must have joined the GLO. Decisions in respect of the common issues bind all claimants on the group register. There is no minimum or maximum number of claims needed, but there must be sufficient claims for the court to consider that a GLO is the most efficient and cost-effective way to manage the group.
Representative actions. Representative actions enable one or more claimants to bring a claim on behalf of a larger group with the “same interest” in the claim. It is an opt-out procedure and the judgment binds all represented parties. The need for claimants to have the “same interest” has been strictly construed by the courts, which has to some degree limited the utility of this mechanism.
Collective Proceedings Order (CPO) class action under the Competition Act 1998. These proceedings are available for collective actions via a CPO before the Competition Appeal Tribunal (CAT) for follow-on or stand-alone competition claims. They are a “true” class action, normally brought on an ‘opt out’ basis by a representative, and must pass a certification process to proceed collectively.
‘Joint’ claims. Multiple individual claims can be issued and managed together if they make related allegations against the same defendant. This process involves using a single claim form and is more suitable for smaller groups of claimants as it does not involve formal group litigation procedures like a GLO, but are effectively managed by the court using its wide case management powers in the same manner as a GLO but on an ad hoc basis.
Test cases. Where a number of cases raising similar issues have been issued, the court may decide to progress a small number as ‘test cases’ while the others are stayed. The decisions in test cases establish a precedent that can be applied to attempt to resolve the wider group of individual claims that share the similar issues. This approach again sees the court use its wide case management discretion to identify the most efficient way to resolve the group without using a formal collective procedure.
1 Within the United Kingdom, England & Wales, Scotland and Northern Ireland are distinct jurisdictions with their own litigation procedural rules. This summary discusses collective action procedures in England & Wales only.
Rules for commonality of claims/class certification
The requirement of commonality varies depending on the procedure pursued.
GLOs. Under a GLO the claims must share common or related issues of fact or law. These issues must be sufficiently specific and material to justify collective management. For instance, claimants may allege all claimants have similar claims arising from a shared set of circumstances, such as the use of defective products or exposure to harmful practices. The court ensures that only genuinely common issues are addressed collectively, while individual aspects of the claims are dealt with separately if necessary. However, the common issues do not act as a substitute for detailed pleadings.
Representative actions. Representative actions require the claimants to demonstrate the “same interest,” which historically has been interpreted strictly. The “same interest” means that all members of the group must be affected in a sufficiently similar way by the issue at hand, which is inevitably a higher bar than the need for issues to be ‘common’ in a GLO. This requirement has limited the use of representative actions in practice, as differences in damages, defenses, or other case-specific factors often prevent claims progressing under this mechanism. However, courts are increasingly exploring a more flexible interpretation, which may allow broader use of this mechanism in future.
CPO class action. For CPOs before the CAT, commonality is assessed during the certification process. The tribunal considers whether the issues raised by the claims are suitable for collective resolution, as they raise the same, similar or related issues of fact or law. Common issues must be present, but they do not necessarily need to be more prevalent than non-common issues. A key factor is the courts assessment of the balance between the efficiency of group resolution against the individual rights of claimants.
‘Joint’ claims. In cases involving joint claims, they must have a sufficiently related legal and/or factual elements for informal collective management to be the most efficient approach. The court has a wide case management discretion and there is no formal test for commonality.
Test cases. Similar to ‘joint’ claims, the decision to use test cases is made by the court using its wide case management discretion. The court must be persuaded that the selected cases raise issues that are sufficiently representative of those in the remaining claims. This approach is particularly effective where an issue is clearly defined and widely shared, but the remaining vary in scope or complexity.
Class member participation (opt-in/opt-out)
Member participation varies depending on the procedure.
GLOs. GLOs operate strictly on an opt-in basis, meaning claimants must actively decide to participate by issuing a claim and being added to the group register. This can limit the size of the claimant group to a smaller proportion of those that could join, as individuals must take proactive steps to participate.
Representative actions. Representative actions function on an opt-out basis, with all individuals who share the “same interest” automatically included unless they expressly choose to withdraw.
CPO class action. Class member participation can be either opt-in or opt-out basis, depending on the application made and the certification decision by the CAT (which is free to order an opt-in class even where an application is made on an opt-out basis). The decision as to which is most appropriate is made on a case by case basis depending on the specific circumstances of the case.
‘Joint’ claims. Joint claims are opt-in on the basis that claimants file their claims together in a single claim form. There is no formal process for deciding participation.
Test cases. Test cases are opt-in on the basis that the claimants bringing both the test cases and the wider cases for which the test cases are representative need to have issued their own proceedings.
In all cases, the decision to proceed under one of the collective action mechanisms described above is a case management decision. Case management decisions are appealable, however, only in limited circumstances given the wide discretion the court has.
Generally, the appeal court will not interfere with case management decisions where the correct principles have been applied and only the appropriate matters have been taken into account, unless the decision is so plainly wrong that it must be regarded as outside the “generous ambit” of the court’s case management discretion.
Litigation funding is widely available in the UK and very commonly used by claimants to fund many of the collective action mechanisms described above, including GLOs, representative actions and CPO class actions. The market has grown significantly in recent years, both in terms of the amount of capital available and the number of active funders. Funders are increasingly backing a broader range of claims and this expansion is contributing to an increase in the number of collective actions being brought.