There has been much talk about a recent judgment of the Kings’ Bench Division of the High Court in which Mr Justice Robin Knowles has refused to strike out a representative action brought by Commission Recovery Limited on behalf of a class of claimants who may have claims in relation to secret commissions earned without their knowledge.
The decision opens up the pathway to “representative” actions on behalf of a class of claimants, which appeared to have been blocked off by decision in Lloyd v Google in the Supreme Court in 2021. It also suggests that there will be an increased demand for good systems of collective redress, and we are pleased to see the English courts encouraging that development.
Mr Justice Knowles commented that “we are still perhaps in the foothills of the modern, flexible use” of the rules on representative actions but nevertheless his decision suggests the route to the summit is open, at least for certain types of claim.
He suggested that “modern” use of representative actions is assisted by the fact that many large collective claims are built by claimant lawyers and supported by commercial funders. That may mean that the individual person or entity who leads the claim as the “representative” is more of a figurehead, insulated from conflicts and able to conduct litigation on behalf of a large group of unknown claimants without advancing arguments which could prejudice some over others.
It may be that the facts of this claim, and the nature of the class (all the claimants will have been clients of Marks & Clerk entities within a certain timeframe) make it more manageable than the massive undertaking which the Lloyd v Google case, and similar large-scale class actions for data breaches, would be. The court stated that what matters is that class members meet the same interest test which “in particular” involves ensuring the interests of some class members are not advanced at the expense of others. But the court seems satisfied that careful case management and “stewardship by the Claimant and its lawyers” can get over those problems – so that they are not fatal to passing the “same interest” test.
We will have to watch the progress of this case, but it is encouraging to see such judicial support for collective actions in England & Wales, and recognition of the role played by lawyers and commercial funders in assisting that regime. Until now, only competition class actions, which have their own regime in the Competition Appeals Tribunal, have been able to move forward. Perhaps this is the case which will allow wider collective actions to climb beyond the foothills.