In recent years, we have seen group actions play an ever-expanding role in English litigation, driven by an explosion in litigation funding and an influx of new claimant law firms entering the English market with the intent of pursuing corporate defendants for alleged wrongdoing. This trend continued in 2023, despite it being a rocky year for litigation funding, and group actions show no signs of slowing.
Here, we look back at the key themes we have identified from High Court group litigation in 2023.
1. GLOs see a rise in number
With much attention on the Competition Appeal Tribunal in recent years, which has been busy ruling on collective proceedings since their introduction under the Consumer Rights Act 2015, and the excitement around representative actions, it may have seemed that group litigation orders (GLOs) had lost some profile to these alternative group action procedures. However, 2023 showed that GLOs are very much alive and remain an important mechanism for bringing group claims, with the number of GLOs made rising considerably from previous years.
According to the official HM Courts & Tribunals Service list of GLOs, there was only one GLO ordered each year in 2019, 2020 and 2021. In 2022, there were two.
Official figures for 2023 GLOs are, at the time of writing, not yet available, but, from an examination of publicly available sources, we understand there to have been five GLOs ordered: as many as the previous four years put together. Ongoing advertising campaigns by claimant firms also reveal that many more prospective GLOs are in the pipeline.
2. The High Court is not afraid to refuse to order a GLO if it’s deemed unsuitable
The High Court heard at least eight GLO applications in 2023. Of those, five were ordered, illustrating the Court’s eagerness to certify a GLO where it is satisfied of its appropriateness. However, ordered GLOs do not tell the full story in terms of risks corporate defendants face. Despite this, the Court has continued to actively manage cases and has shown that it will not make a GLO where it may be unsuitable or where another form of case management is more appropriate.
- In Abbott, for example, the Court rejected the GLO application brought for alleged noise-induced hearing loss incurred during military service, considering that it was preferable to pursue the claims as individual cases. The Court left open the possibility for the parties to obtain an early High Court judgment on one or more of the preliminary issues between the parties, to avoid the risk of inconsistent judgments.
- Meanwhile, in Hamon, a prospective GLO – sought for alleged breach of contract for a failure to provide in-person tuition during periods of industrial action and Covid-19 – was deemed inappropriate due to a lack of information about the commonality between different claimant cohorts. The Court stayed proceedings for eight months to allow the parties to “engage collaboratively” about how to manage the claims and issues “most proportionately and efficiently”, whether by GLO or otherwise.
- In Various Claimants v World Rugby Limited & Ors, the Court took a similar approach, deeming the GLO application to be “premature”: the next hearing will take place in spring of this year.
Accordingly, while 2023 saw a high number of GLOs ordered by the Court, it has not shied away from its close scrutiny of each prospective GLO on a case-by-case basis. Undoubtedly it will continue to do so, actively and pragmatically, in 2024.
3. No industry is immune
Developments in 2023 have shown that High Court group litigation has evolved from its origins in product liability and personal injury cases.
The successful GLO applications in 2023 mentioned above spanned the life science, ESG and automotive sectors, while those that were rejected, abandoned or adjourned in 2023 covered issues ranging from hearing loss, university tuition, sports injuries and a mass data breach.
Further, claimant firms’ publicly advertised targets for prospective group actions cover a similarly broad range of industries, with subject matters spanning a wide range of issues, from pet food to football violence to landfill. We are also seeing an increasing range of target defendants and types of mass claims across shareholder, financial services, consumer protection, product liability and human rights.
Over the next year, we expect to see the range of target defendants and types of claims continue to broaden, leaving a wide variety of corporates, government departments, other associations and sectors exposed to group action risk.
4. Representative actions still face uncertainty
While GLOs saw an uptick in 2023, representative actions – another means of bringing mass claims in the High Court – mostly struggled to get off the ground, despite initial excitement and speculation from the claimant bar that they would supplement the GLO.
Freshfields has written previously on the landmark decision in Lloyd and the hurdles which looked likely to unfold for representative actions in relation to the “same interest” test (under CPR r19.8). The fact that we have only seen a very small number representative actions brought before the High Court in 2023 illustrates the difficulties faced in bringing claims under CPR r19.8.
For example, a representative action was rejected in Prismall for failing to demonstrate that the representative claimant had the “same interest” as those represented in the claim. A further attempt to bring a representative action was rejected in Wirral Council (on which see Freshfields’ recent blog).
2024 is off to a more optimistic start for representative actions: the Court of Appeal recently endorsed a representative action in Commission Recovery Limited v Marks & Clerk, a claim relating to undisclosed commissions allegedly paid in exchange for referrals, which the High Court had originally granted in February 2023. Yet Mr Justice Knowles CBE commented in the first instance judgment in Commission Recovery Limited, “we are still perhaps in the foothills of the modern, flexible use of [the representative action], alongside the costs, costs risk and funding rules and practice of today and still to come.”
It remains to be seen whether, as in 2023, GLOs will continue to be the preferred mechanism for bringing a mass claim in the High Court. This will in part depend on the approach of the sophisticated claimant bar in England & Wales, which will continue to make value judgments about whether each case is best pursued via a GLO or representative action (or even, where possible, a collective proceedings order in the CAT).
5. Novel approaches to case management proliferate
The scale of recent GLOs involving thousands of claimants across distinct but similar claims has prompted the High Court to consider innovative ways to manage these cases collectively to ensure that they progress efficiently and expeditiously.
In one GLO judgment in 2023, the High Court made reference to a more informal model for managing group claims, which it labelled as a “GLO Lite”. The Court explained that a “GLO Lite” would be managed in a similar way to a formal GLO but without the need for a court order; a formal group register; or a cut-off date for claims to enter the group register. The Court’s findings on generic issues in a “GLO Lite” were also explained not to be binding on all parties. Although the “GLO Lite” model was considered inappropriate in this particular case, now that the Court has established this more informal mechanism for managing group actions, we await further indications as to whether Claimant firms and the Court will embrace its implementation in future claims.
The Court’s willingness to creatively manage group actions to ensure that cases progress as swiftly as possible and at proportionate cost was also seen in the multi-party hearing that took place in December 2023 in relation to the NOx emissions claims. This “pan-NOx” hearing was ordered to bring together multiple claimant and defendant groups across 13 existing and prospective GLOs to discuss potential models for managing the cases going forwards to reduce costs, delays and the burden on the Court’s resources. At another recent “pan-NOx” hearing, Mrs Justice Cockerill DBE further championed the Court’s desire for innovative approaches to active case management, commenting that the litigation was “really interesting and innovative […] we can do things slightly differently” and that the parties may at times need to move forward “in a slightly unorthodox way” to make progress.
In sum, then, 2023 was a particularly active year for group litigation in the High Court, with an increased number of GLOs sought across an ever-diverse spectrum of industries, managed in increasingly novel ways. As we look ahead to 2024, we anticipate that claimant firms will continue to make use of this mechanism to bring claims against an even broader range of defendants across wide-ranging sectors. Prospective defendants should, therefore, be alive to the risks and complexities that such claims present.
