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The Class System: Recent Developments in Mechanisms and Manageability for Group Litigation
Date: 26/01/2023 Type: Articles Topic: Competition | Litigation |Introduction
Recent years have seen the expansion of group claims in England across a variety of areas of law, including competition, securities, data misuse, and mass torts. The increased volume of group claims has lead to developments in how such claims can be brought by claimants (the procedural ‘mechanism’ for the claims) and how they should be subsequently managed by the courts (the ‘management’ of the claims).
This article addresses recent developments on these issues across the aforementioned areas of law and how they may develop in 2023.
Competition: opt-out or opt-in?
Since the introduction of the ‘collective action’ mechanism and ‘opt-out’ regime in section 47B of the Consumer Rights Act 2015 (“CRA”) for group competition damages, 26 collective actions have been filed (to October 2022) in the Competition Appeal Tribunal (“CAT”) and only three of these have been opt-in.[1]
2022 has seen a record 10 filings (again to October). The focus of the CAT to date has primarily been on certification of the collective actions, but 2022 has seen issues of mechanism and manageability addressed substantively for the first time.
In the O’Higgins/Evans Forex judgment[2], the CAT in a majority judgment rejected the competing proposed class representatives’ (“PCRs”) applications for an opt-out collective action but suggested that an opt-in action could be certified. However, the dissenting CAT panel member argued that access to justice would not be achieved by an opt-in claim only as it would not be economic in the circumstances. Both PCRs appealed the judgment and permission to appeal to the Court of Appeal (“CoA”) was granted by the CAT.[3] The appeal will be heard in 2023 and provide important guidance on the application of the opt-out and opt-in mechanisms in CRA collective actions.
Competition: under the CAT’s umbrella
The issue of manageability of collective actions and their inter-relationship with individual actions has also received the CAT’s attention in 2022. Due to the volume of collective actions, there are now several instances of parallel collective and individual actions relating to the same conduct, albeit sometimes at different levels of the supply chain (e.g. Trucks and Maritime Car Carriers). There are also in relation to Multilateral Interchange Fees (“Interchange”) several hundred individual actions as well as one certified and four pre-certification collective actions, covering varying time periods.
Understandably, manageability of these complex proceedings has been at the forefront of the CAT’s consideration. This focus on manageability led to the CAT issuing the Umbrella Proceedings Practice Direction (2/2022) (“UPD”) which enables it to group “ubiquitous” issues in otherwise unrelated proceedings under a case management ‘umbrella’. The first ‘Umbrella Proceedings Order’ was issued in Interchange.[4] At a recent case management conference, the CAT President summarised its position regarding management of umbrella claims by stating: “we will be engaging in our case management powers pretty aggressively to ensure that we have not only a fair trial but also a manageable trial at the end of the process”.[5]
It will be interesting to see how the UPD will develop in 2023. In particular, how the rights of individual claimants in umbrella proceedings will be respected shall be of great interest, especially if the individual claimants are ‘opt-outs’ from collective proceedings under the same umbrella.
Mass torts: unmanageability as abuse of process?
Manageability has also been a focus in mass tort group litigation in 2022, with an important judgment on this issue by the CoA in Municipio de Mariana.[6] The claim is an effective opt-in claim brought by over 200,000 claimants regarding the 2015 collapse of a dam owned by a Brazilian subsidiary of BHP. The defendants argued that the proceedings should be struck out or stayed as an abuse of the process of the court given inter alia the existence of parallel Brazilian proceedings.
At first instance, the judge found that all claims should be struck out, or alternatively stayed, as problems of irreconcilable judgments and cross-contamination from the parallel Brazilian proceedings would make the English claims “irredeemably unmanageable” and an abuse of process.[7]
The CoA overturned the judgment while questioning in paragraph 184 “whether proceedings can ever truly be said to be unmanageable”, given case management options available to the courts. Further, even if the proceedings were “unmanageable” due to parallel proceedings or other procedural complexities, it did not follow that the court process was being misused but rather that it was not capable of meeting the challenge posed by the proceedings. However, such a finding could not be made at an early stage of proceedings but only in front of the assigned judge and after the “precise scope and nature of the issues between the parties” had been identified and the parties had cooperated to put forward case management proposals.[8]
The CoA judgment is important for confirming the English courts’ willingness to use active case management to control procedurally complex group litigation.[9] It will be interesting to monitor how this develops in 2023, and in particular whether the CoA judgment withstands any appeal to the Supreme Court (“SCt”).
Data misuse: Lloyd v Google and individual loss
In its Municipio judgment, the CoA rejected attempts by the defendants to use the SCt judgment in Lloyd v Google[10] – a CPR 19.6 representative damages action relating to data misuse – to support their arguments. Lloyd was an attempt to use a CPR 19.6 representative action as an effective ‘opt-out’ mechanism for group litigation in contrast to the use of a group litigation order (“GLO”), which is an opt-in mechanism. The SCt rejected Lloyd’s claim finding that representative actions are only available as a mechanism for damages claims where “the entitlement can be calculated on a basis that is common to all members of the class” (paragraph 82).
In Lloyd, the SCt noted that opt-in group litigation can be impractical, in contrast to opt-out litigation, as it requires all opt-in claimants to prove their loss in circumstances where the potential gain to them is small. In paragraph 189 of Municipio, the CoA noted that a claim being impractical does not mean that it is abusive, and that Lloyd therefore did not help the defendants.
While the CoA found Lloyd was irrelevant to the Municipio claims, its finding that loss cannot be established on an individualised basis in representative actions has significantly curbed the momentum around data misuse group litigation as there is now seemingly no available mechanism for opt-out data misuse claims. However, in this respect, we note that the SCt confined itself in Lloyd to commenting on the position under the Data Protection Act 1998 – the appropriate legislation for the claim – and declined to be drawn into discussing the General Data Protection Regulation and the Data Protection Act 2018 which provide an express right to compensation (unlike the earlier legislation).
It remains to be seen whether representative actions could be used as an opt out mechanism for claims under the latter legislation and if such claims will be filed in 2023.
Securities: a new mechanism under CPR 19.6?
While representative actions may not work for data misuse claims, the SCt finding that losses must be calculated on a “basis that is common to all members of the class” suggests representative actions could work as an opt-out mechanism for securities claims under sections 90 and 90A Financial Services and Markets Act 2000. Securities claims relate to the loss in value in securities following untrue or misleading statements in, or omissions from, listing particulars (section 90) or a company’s financial reports and accounts (section 90A).
In Lloyd, the SCt noted that representative actions could work in a situation where “all the class members acquired the same product with the same defect which reduced its value by the same amount” as in such cases the “defendant’s monetary liability could be determined as a common issue and no individualised assessment would be needed” (paragraph 82). This example can arguably apply to securities – e.g., each class member bought a security which reduced in value by the same amount per security for all class members (although you may need separate classes or sub-classes for different classes of security).
However, this approach is untested and will meet challenges from defendants. Nonetheless, it seems highly likely that we will see securities representative actions in 2023.
Conclusion
These judgments from 2022, and late 2021 (Lloyd), highlight claimants’ use of procedural mechanisms and the courts’ use of case management to make group claims manageable. We expect to see continued innovation in both fronts by claimants and the courts in 2023, ensuring that English group litigation remains a fascinating area to watch, and one which will continue to develop.
[1] ‘Opt-out’ actions being those that cover all members of the class unless they opt-out; ‘opt-in’ actions being those that only cover class members who opt in.
[2] 1329/7/7/19 Michael O'Higgins FX Class Representative Limited v Barclays Bank PLC and Others; 1336/7/7/19 Mr Phillip Evans v Barclays Bank PLC and Others; [2022] CAT 16 (together “O’Higgins/Evans”).
[3] [2022] CAT 42.
[4] Case 1517/11/7/22 (UM) Merchant Interchange Fee Umbrella Proceedings (“UM Interchange”).
[5] CMC Day One, 7 November 2022, UM interchange.
[6] Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 (“Municipio”).
[7] [2020] EWHC 2930 (TCC), paragraph 104.
[8] Paragraph 188, Municipio CoA Judgment.
[9] It is also of significant importance regarding jurisdiction for mass environmental tort claims but that is outside the scope of this article.
[10] Lloyd v Google LLC [2021] UKSC 50 (“Lloyd”).
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