Information for England & Wales last updated in November 2022.
The current mass actions landscape
England and Wales does not currently have an overarching mass actions regime. Instead, there are a range of different options which are open to parties and courts for bringing and managing mass actions. These operate principally on an opt-in basis, although there is a specific opt-out regime in the Competition Appeal Tribunal (CAT) for collective proceedings in respect of infringements of competition law. Outside competition law, the main procedures used by claimants are:
- multiple claimants bringing a joint action under the Civil Procedure Rules (CPR), where their claims can be “conveniently disposed of in the same proceedings”;
- "representative actions" under the CPR, where one claimant may bring a claim as representative of other claimants with the "same interest" – though case law now makes clear that this procedure is available only in very narrow circumstances;
- the court case-managing multiple claims together; and
- the court making a Group Litigation Order (GLO), which starts a formal procedure for the cohesive management of multiple claims involving common or related issues of fact or law.
Collective redress schemes are increasingly popular. These are schemes put in place when businesses decide, or are required by regulators, courts or statute, to adopt an alternative to litigation in order to right wrongs committed against a particular class of customers or other individuals quickly and economically.
Mass actions are particularly common in relation to competition law, data privacy, financial services, shareholder, environmental, personal injury and product liability claims. Redress schemes have been used particularly, though not exclusively, by the financial services sector and for mass personal injury and product liability claims.
There has been a dramatic increase over recent years in the number of mass actions under the specific opt-out regime in the CAT for competition claims. However, England and Wales has not otherwise traditionally been regarded as a particularly easy jurisdiction in which to bring mass actions, principally because of the lack of a generally-applicable opt-out procedure for non-competition claims.
Nevertheless, there has – at least in some quarters – been an increased focus on making effective mass actions procedures available to claimants. This, coupled with the growth of third-party litigation funding to finance such actions and specific developments for example in the competition sphere, mean that we have recently seen, and are likely to continue to see, a growing number of mass actions.
The impact of the RAD
Given the UK's departure from the EU, the UK will not be required to implement the RAD. However, the UK has often indicated a wish to align with the EU on consumer matters, as well as to retain its appeal as a “jurisdiction of choice” for international disputes. As a result, it remains to be seen whether any reforms will follow on a voluntary basis.
In fact, the existing mass actions procedures available in England and Wales share a number of features mandated under the RAD. These include procedures for early dismissal of weak claims; an extensive regime for disclosure of documents; a wide range of available remedies; and a general adherence to the “loser pays” rule on costs. The main impact of not being required to implement the RAD is that England and Wales, unlike EU member states, will not be required to have a generally applicable procedure whereby consumer mass actions can be pursued by “qualified entities”, without costs risk to individual claimants.
However, some of the English mechanisms do allow claims to be brought by representatives. In particular, collective proceedings for competition law breaches in the CAT involve a class representative, who may be either an individual or a consumer or trade body. For example, in the landmark Merricks v Mastercard litigation, concerning alleged excessive 'interchange fees' charged to merchants on the use of Mastercard debit and credit cards, a proposed class of millions of customers is represented by Walter Merricks, former Chief Ombudsman of the Financial Ombudsman Service.
Additionally, in relation to data protection, individuals can request relevant not-for-profit organisations to make complaints to the Information Commissioner's Office (ICO) about a data controller or processor and to bring court proceedings on the individuals' behalf. The government recently consulted on whether not-for-profit organisations should be enabled to take similar action without the express mandate or even knowledge of individual data subjects, but - for now at least - has concluded that the legislation should not be amended to permit this.
Pitfalls regarding mass actions
While there is no overarching opt-out class action regime, so that historically England and Wales has not been particularly fertile ground for mass actions other than in relation to competition claims, mass actions are growing, enabled by a range of available procedures, the availability of third party litigation funding, and a developed claimant legal industry with a strong appetite for “book building” mass claims. The relative informality of some of the procedures for bringing mass actions can also lead to defendants facing multiple different claims, whereas more formal, streamlined procedures at least mean that all or most relevant actions are consolidated.