In a sign of the extent to which class actions have become part of the mainstream of English litigation, the Supreme Court has recently given permission to appeal in three cases brought by or on behalf of large groups of claimants in three completely different contexts.
Most recent is the MasterCard litigation, in which the Supreme Court will hear an appeal against the Court of Appeal’s April 2019 decision considered in this post on our Competition Notes blog (Merricks v MasterCard Inc  EWCA Civ 674). That decision overturned the Competition Appeal Tribunal's (CAT) refusal to certify the £14 billion collective action claim against MasterCard and remitted the case back to the CAT for a re-hearing, potentially granting the claim a new lease on life. The appeal is expected to clarify important issues relating to the "opt-out" regime for competition law cases in the CAT, which was introduced from October 2015 but has seen relatively few claims issued.
Also pending is the appeal in the Morrisons case, in which damages claims were brought against Morrisons by around 5,500 employees following the unlawful disclosure of their personal information by a rogue employee of the company. In October 2018, the Court of Appeal upheld the High Court's decision that Morrisons was vicariously liable for the employee's actions, with the implication that an organisation can be liable for data breaches even if it has taken appropriate measures to comply with data protection legislation, and even if it is the intended victim of the breach – see Wm Morrisons Supermarkets Plc v Various Claimants  EWCA Civ 2339, considered in our data protection update. The Supreme Court is expected to consider important issues relating to the application of the common law doctrine of vicarious liability in the data protection context.
The third appeal is in litigation brought by large groups of individuals against UK-based Royal Dutch Shell and its Nigerian subsidiary relating to alleged pollution from pipelines and associated infrastructure in Nigeria. In February 2018, the Court of Appeal held, by a majority, that the English court did not have jurisdiction to hear the claims, as the claimants could not demonstrate a properly arguable case that Royal Dutch Shell owed a duty of care to those affected – see Okpabi and others v Royal Dutch Shell Plc and Shell Petroleum Development Company of Nigeria Ltd  EWCA Civ 191, considered in this post on our Litigation Notes blog. The Supreme Court’s decision could have important implications for cases of so-called “class action tourism” in which claims are brought, typically, against a UK-based parent company and a local operating subsidiary in relation to alleged breaches in the local jurisdiction.
For a more in-depth discussion of class action litigation in the English courts, see our textbook Class Actions in England and Wales, written by leading lawyers from Herbert Smith Freehills and published by Sweet & Maxwell in June 2018. Click here to read more about the publication.
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