2024 is set to be a crucial year for collective or group claims in England & Wales. Outside of the collective actions regime for competition claims in the CAT, the Civil Procedure Rules might be seen as hindering those seeking redress on a mass basis. For consumers, the risk and costs of pursuing a modest claim normally rule out litigation, so they may be the type of claimant most disadvantaged by the lack of a workable, funded, collective regime.
In contrast, we have seen the Representative Action Directive of 2023 require courts of European member states to offer a representative regime for consumer collective redress, and jurisdictions like the Netherlands were already advancing collective actions to meet the needs of wronged parties. Class actions are also developing rapidly in common law jurisdictions such as Canada and Australia, leaving England & Wales behind. However, a series of developments may mean that in the next year, England & Wales will start to catch up. Will legislation, precedent, or both, forge a workable regime?
Municipio de Mariana and Dieselgate
Two huge claims will attract attention in the coming year: April 2024 will see the trial for the approximately 700,000 claimants in the Mariana dam claim; and the “Dieselgate” claims involving well over 1 million claimants and 1500 defendants will have major hearings in the coming months on the way towards a 2025 trial. Both will test to the extreme the case management powers of the court, and doubtless we will learn much about the practical and legal challenges of running claims on such a scale. Yet the message from the court was clear in December 2023 that whilst the scale of the Dieselgate claim may be “unprecedented” it is better than placing an “unacceptable burden” on the courts and impeding others’ access to justice by having the various claims run without a common strategy.
There may also be increased scope to bring representative claims under CPR19 on behalf of a group of claimants with the same interest. Representative claims have frequently fallen at the first hurdle but in January 2024 the Court of Appeal unanimously upheld the High Court decision (see our previous blog) to allow a representative action to proceed. Whilst seeking monetary relief through a representative model may still pose difficulties, it is a positive sign that the judiciary has allowed this claim to proceed, and it may lay the ground for future representative claims.
Expanding the remit of the CAT?
As we write, the Competition Appeal trial in Le Patourel v BT Group Plc is being heard, the first CAT opt-out claim to reach that stage. We will potentially learn much about collective case management up to and including distribution of awards, which will inform both competition and non-competition mass claims. In addition, positive learning points from that case may reinforce the increasing calls in Parliament for the CAT regime to be widened to allow non-competition claims.
Taken together, all of these cases should provide welcome lessons and – potentially- encouragement for the growth of a comprehensive collective actions regime in England & Wales, catching up with other jurisdictions. As a funder, we’re watching with interest.
Alan Bates’ recent comments in the Financial Times on the importance of litigation funding in allowing 555 sub-postmasters to pursue their civil claims against Post Office Limited highlighted the vital role that funding plays in mass claims. That will remain true but there needs to be a comprehensive and workable collective regime on which claimants – and funders- can rely to facilitate meritorious mass claims. Such claims, most notably at a consumer level, can simply not proceed without a funder providing finance and absorbing cost risk for claimants who would – probably- not otherwise be willing or able to engage in the process.