What is a group action?
Group actions are a way for multiple parties with similar complaints to join together to take on a common problem. It is often referred to as group litigation or by the American term, class action. To go ahead, a group action must be deemed the best way for a court to manage the claims.
For an individual or small business, litigation can be a daunting and costly experience. By clubbing together, these smaller entities are able to reduce the risk of litigating against a larger, and likely more highly resourced opponent. In many cases, individual claimants are made to feel like the underdog and are put off by the risks associated with bringing a claim forward. Group actions work on the basis of strength in numbers. Individual claimants share legal knowledge and advice, split costs and share the risks that they may not be able to take on alone. It is a way to redress the legal balance and allow individuals a lower-risk access to justice that they might otherwise be denied.
Group Litigation Orders
Group litigation is prevalent in the US and is becoming far more common in the UK. In the UK, group actions are generally managed through a Group Litigation Order (GLO). This means that a claimant must opt to join the group action. In the American class action system, the opposite is true and claimants are included unless they choose to opt out.
A GLO must establish:
- The group register – this captures all the details of the claims to be managed by the GLO
- GLO issues – this shows which claims fall under the GLO
- The management court responsible for the claims
Within a GLO, each claim is classed as individual. The GLO is the mechanism used by the court to manage those individual claims where they give rise to common or related issues.
For an action to go ahead, the court must be satisfied that there are sufficient claims to justify the grant of a GLO and make it an efficient mechanism to proceed. While there is no specific number of claimants that must sign up to a group action, it is generally accepted that at least five claims are necessary to justify a GLO.
Who can bring a group action?
Group actions can be brought by any person or legal entity that has a claim. They can also be brought by a representative body. In some circumstances, the court may allow a company’s shareholders to bring a claim against the company’s directors.
The group register
The group register is used to collect the relevant information about the individual claimants. It will usually include name, address and claim number as well as any other relevant details such as the number of shares held if it is a shareholder action. The register will include information on all parties that wish to claim as part of the group action.
The court may order a cut-off date for parties to join the group register. This is usually put in place to stop disruption to proceedings by late-comers and to help assess the potential size and scope of the action. This cut-off date can be extended if the court agrees that the claimant meets certain conditions. These late joiners may sometimes be managed as a separate group within the GLO and will commonly be stayed by the outcome of the first set of claims.
Publicising the GLO
When a GLO is approved, the court will usually order the parties involved to publicise it so that all relevant claims can be managed within it. Solicitors will also publicise their involvement in order to try and bring in more claimants.
Trial by judge
Once a GLO has been made, a judge will be appointed with the responsibility case managing the litigation. They will commonly hear the trial of the case and may be assisted by another judge on certain procedural matters.
Lead or test cases establish findings in law that may allow for compromise or for a simplified resolution of the rest of the litigation by focussing on further proceedings and clarifying any remaining points. If a judgement is made on one of the GLO issues, it is binding on all of the other claims unless the court orders otherwise. However, the outcome of the test case does not automatically determine the outcome of all claims within the action.
In general, experts on technical issues will be appointed by the parties involved rather than the court. However, they will have to have the court’s permission to present evidence. Experts may only offer opinion on their area of expertise and their evidence must remain independent. At trial, expert witnesses are required to present oral evidence unless specifically ordered otherwise by the court. It is unlikely that an expert witness will be called to give evidence via pre-trial deposition unless they are unable to attend the trial. In many cases, if a witness is abroad or too ill to attend the trial, evidence will be given via video conference thus negating the need to give a deposition.
How long does it take to get to trial?
There is no fixed timescale for a group action. The time it takes to get to trial is largely dependent on the complexity of the case and value of the claim. Statistics published by the Ministry of Justice in 2018 showed that on average it took 57 weeks from the issue of proceedings until trial in County Court. This excluded a number of small claims which were fast-tracked. Equivalent statistics for High Court actions were not available but these tend to be more complicated and therefore take longer to get to trial.
Can an appeal be made?
The court can grant permission for an appeal to be made. This will only be granted if there is perceived to be a real prospect of success or compelling reasons for the appeal to be heard. In general, the appeal will only apply to a review of the lower court’s decision but the court can order a re-hearing in the interest of justice. An appeal will be granted if the decision was wrong (based on an error of law or fact, or in the exercise of its discretion) or unjust because of a serious procedural or other irregularity.
The cost of litigation
The cost of litigation can be significant. For a standalone claim, claimants must pay their own legal fees. There is also the possibility of paying their opponent’s legal costs if the case does not go in their favour.
With a group action, costs are shared between claimants. In general, each claimant involved in the action is liable for:
- Any individual costs that relate specifically to their claim.
- A proportion of common costs incurred by the group. (This could include the cost of the solicitor leading the litigation, for example). Common costs are generally shared equally across the group. This may not be the case if the court deems it would be unfair.
However, many group actions are covered by private litigation funders which reduces the risk to the claimants further.
What is litigation funding?
Litigation funding is sometimes provided by a third party funder. When this is secured, it further reduces the risk for claimants as the funder is liable for costs if the group action goes in favour of the defendant. The funder has no direct interest in the case but in the result of a win, receives a share of the final settlement. If the case is lost, the funder loses their investment so it is in their interest to only fund actions that have strong success prospects.
The Legal Group Action against Clydesdale and Yorkshire Bank
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