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England and Wales

Author: Vincent Smith and Mahdis Moeiri-Farsi

II. Overview

The United Kingdom has both general and sector specific collective redress mechanisms. Group Litigation Orders (GLO) and representative proceedings can be used in all types of claims. In addition, there are also sector specific regimes available in Competition and Consumer law.

General

GLOs can be used in all types of claims and allow the court to group and hear together cases which raise one or more common issues. A group register is created (which is available for inspection on request) on which details of the issues in the GLO and the cases which are being managed together under the GLO are entered. The court responsible for the register -the managing court -may also order that all cases commenced in England and Wales which include one or more of the common issues be entered on the register so that the decision on the relevant common issue will also bind the parties to that new claim.

There is no formal requirement for standing under the general collective redress mechanisms, it is enough that the claimants have normal legal capacity. However, under CPR 19.6 a representative claimant is required to have the 'same interest' in the claim as those represented. Ultimately, whether or not a party may act as a representative is at the discretion of the court.

Competition

For claims against competition law infringements in the Competition Appeal Tribunal ('CAT'), the recently introduced (October 2015) collective proceedings order allows injunctive and compensatory collective redress — both on an 'opt-in' and on an 'opt-out' basis at the discretion of the Tribunal.

Under the competition mechanism the class representative may be either a member of the class or a third party authorised to act by the court. In all cases, in order to have standing the applicant must demonstrate to the CAT that it is 'just and reasonable' for it to act as the class representative.

Consumer

In the consumer field, designated public enforcers have been able to apply for injunctive relief against traders who are in breach of consumer laws and since October 2015 have also been able to require compensation to be paid to affected consumers or to consumer benefit organizations.

Those who have standing to bring a collective claim include designated public authorities (for example the Office of Fair Trading) and private bodies authorized by the Secretary of State. Individual consumers cannot bring a claim.

Collective proceedings are typically funded by a third party, either a specialist litigation funder or the claimants' lawyers under a conditional fee agreement. At present, there is no legislative control of third party funding and parties are not required to disclose their source of funding at the outset of proceedings. However, lawyers entering into conditional fee agreements with clients are required to carefully explain the agreement to them and all such agreements must be entered into in writing. Damages based agreements, however, are unenforceable in opt-out collective proceedings.

The costs of the case are met by the losing party. However, the amount of these costs is subject to the review of the court and may be reduced where, for example, the winner was only partly successful or where an offer to settle was unreasonably rejected. Under a GLO costs are divided into 'common costs' and 'individual costs', a member of a losing group will be liable for the individual costs of their case together with a share of the common costs of the group.

There are at present no proposals for legislative change in this area in England and Wales. The Scottish government has recently (2 June 2017) introduced a Bill into the Scottish parliament to create an equivalent in Scotland of the English GLO procedure.

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