UK: Class Actions Comparative Guide

1 Legal framework

1.1 Is there a dedicated class action regime in your jurisdiction? If not, how is collective action typically brought?

There is no dedicated class action regime in England and Wales. Claims in which multiple claimants seek similar relief can be brought in a number of ways, as follows.

Group litigation orders (GLOs): A GLO is an order of the High Court, made where multiple claims give rise to common or related issues of fact or law. These are opt-in claims where a claimant must positively join the action and damages are often assessed on an individual basis following judgment. A GLO is publicised and has a cut-off date by which any claimant wishing to join the action must do so. Any judgment on a GLO issue will bind all other claims listed on the GLO register.

Representative action under Civil Procedure Rule (CPR) 19.6: Representative actions are opt-out claims (ie, all members of the class will automatically be included, unless they opt out) brought in the High Court under CPR 19.6. In order to be classed as a representative action, all of the class must have the same interest in the litigation. This requirement is tightly controlled by the court to ensure that the representative can be relied on to conduct litigation in a way which promotes and protects the interests of all members of the represented class. If the court is satisfied that this test has been met, it then has discretion to order that the claim proceed as a representative action. It must also be possible for an individual to know whether he or she qualifies as being eligible for the class at all stages of the proceedings.

Group litigation managed by the court: The High Court also has case management powers which allow it to manage similar cases together on a bespoke basis. Such claims are made on an opt-in basis, with various claimant law firms bringing claims on behalf of large numbers of claimants. Although these claims may not be suitable for a GLO, they will involve close connections between the issues of fact and law in dispute; and they tend to be managed together by a docketed judge who deals with case and costs management, interim applications and the trial itself. Various test claims will be determined at trial to decide the common issues and other factual and legal matters which will indicate how the remaining claims should be decided.

Collective actions in the Competition Appeals Tribunal (CAT): Finally, UK law also provides for class actions where there have been breaches of competition law. Since 1 October 2015, both opt-in and opt-out collective actions have been permitted before the CAT. In order to proceed, a claimant (known as a proposed class representative) must apply and meet the test for a collective proceedings order (CPO). A CPO may be granted only where the CAT is satisfied that individual claims:

• raise "the same, similar or related issues of fact or law"; and
• are "suitable to be brought in collective proceedings".

1.2 Do any special regimes apply in specific sectors?

There is a specialist regime for dealing with breaches of competition law. The CAT is an independent judicial body within the court systems of England and Wales, Scotland and Northern Ireland which specialises in hearing and deciding cases involving competition or economic regulatory issues (including collective proceedings relating to such matters). The CAT has cross-disciplinary expertise in law, economics, business and accountancy.

1.3 Are the courts in your jurisdiction generally considered sympathetic to class actions?

There has historically been some scepticism in parts of the judiciary as to the benefits of US-style class actions in England and Wales, and a concern that this would enrich litigation funders and lawyers rather than claimants. However, there has been a recognition in recent years that class actions in some form are necessary; otherwise redress for certain types of claims (particularly mass consumer harm claims) would not be practicable given the high legal costs relative to the small level of individual damages claimed.

2 Parties

2.1 Who has standing to bring a class action in your jurisdiction?

Representative actions: A representative action can be brought by one or more of the persons with the ‘same interest' in a claim. They must have a common grievance and the relief sought must benefit the whole of the class; however, membership of the class can fluctuate, and it does not have to be possible to compile a complete list of the class members when the litigation begins. This test is tightly controlled by the courts, which have emphasised that a strict interpretation of what constitutes the ‘same interest' is necessary to ensure that the representative can be relied on to conduct litigation in a way which promotes and protects the interests of all of the members of the class. This test makes it difficult to bring representative actions, which are rare in practice.

Competition Appeals Tribunal (CAT): In the CAT, collective proceedings can be brought on behalf of a defined class of persons by a class representative under Section 47B of the Competition Act 1998, which must be authorised by the CAT. The class representative need not necessarily be a member of the class and need not have a personal claim against the proposed defendant(s) – the only requirement (as set out in the CAT Rules) is that the CAT consider that it is "just and reasonable" for the applicant to act as the class representative in the proceedings. In doing so, the CAT may consider whether the applicant:

• would fairly and adequately act in the interests of all class members;
• does not have, in relation to the common issues for the class members, a material interest that is in conflict with the interests of class members;
• if there is more than one applicant seeking approval to act as the class representative in respect of the same claims, would be the most suitable;
• would be able to pay the defendant's recoverable costs if ordered to do so; and
• where an interim injunction is sought, would be able to satisfy any undertaking as to damages required by the CAT.

The CAT will continually review the suitability of the class representative throughout the proceedings and may at any time (through its own initiative or following an application) vary or revoke the order authorising the class representative to act in that capacity.

Group litigation orders (GLOs) and group litigation: GLOs and group litigation involve opt-in claims and the standing to bring the claim is the same as for an individual action.

2.2 Can representative bodies bring class actions in your jurisdiction? If so, which bodies may do so and what is the applicable procedure?

Class actions before the CAT can be brought by representative bodies in England and Wales. According to the CAT Guide, such bodies may include:

• consumer organisations;
• trade associations;
• law firms;
• third-party funders; or
• special purpose vehicles.

Before authorising a representative body as the class representative, the CAT will first consider:

• the nature of the body;
• its motivations for being involved; and
• whether there is an actual or potential conflict between that body and the interests of the class members (or, in the case of a special purpose vehicle, the details of its constitution and management and the reason(s) why it was established).

Each application is assessed in light of its individual circumstances and the CAT will also consider the ability of the body to manage the proceedings and instruct its lawyers.

2.3 Can parties outside the jurisdiction be members of a class action? What requirements and restrictions apply in this regard?

Representative actions: Representative actions can be brought on behalf of claimants residing outside of the jurisdiction subject to usual conflict of laws rules (although the more numerous and geographically widely spread the class is, the more clearly the same interest test should be satisfied). Unless the court directs otherwise, any judgment or order in a claim in which a party is acting as a representative is binding on all persons represented.

CAT: Parties from outside the United Kingdom may be parties to collective proceedings in the CAT, provided that they ‘opt in' to the proceedings. This is the case even in relation to ‘opt-out' proceedings where, under CAT Rule 82(1)(b), a party which is not domiciled in the United Kingdom at the domicile date must first opt in to such proceedings in order to form part of the class.

GLOs and group litigation: GLOs and group litigation allow the court to consider related claims together for ease of case management. Before a claim can be entered on the GLO group register or joined to a proceeding, it must be issued as an individual claim. Claimants outside of the jurisdiction can bring a claim in England and Wales subject to usual conflict of laws rules.

2.4 Which parties may be the target of a class action? Can parties outside the jurisdiction be the target of a class action? What requirements and restrictions apply in this regard?

Any legal person or entity can be a defendant to proceedings in England and Wales, in either the High Court or the CAT.

High Court proceedings: As regards High Court proceedings (including representative actions, GLOs and group litigation), a claim can be served on a defendant domiciled outside of the jurisdiction without the court's permission if there is a contractual clause which states that the English courts shall have jurisdiction to determine any claim (Civil Procedure Rule (CPR) 6.33). A claim may still be served on a defendant outside of the jurisdiction with the court's permission (CPR 6.36), and an application in accordance with Rule 6.37 of the CPR is required. In both cases, a defendant will then have the right to challenge the court's jurisdiction to determine the claim.

The seminal case of Lloyd v Google [2021] UKSC 50 saw the Supreme Court unanimously deny a claimant permission to serve a representative action on a defendant based outside of the jurisdiction on the grounds that the claim had no real prospect of success (specifically because loss of control of personal data was not compensable per se and therefore the court would require evidence of the loss suffered by each member of the class). While this decision does not preclude claimants from bringing class actions against defendants based abroad, it is a reminder of the additional procedural hurdles which representative action claimants must satisfy in the United Kingdom.

CAT: Neither the CAT Rules nor the CAT Guide provides for any specific restrictions in this regard, meaning that parties outside of the United Kingdom may be the target of collective proceedings before the CAT. However, the permission of the CAT may be required for service of a collective proceedings claim form on defendants domiciled outside the United Kingdom.

2.5 Do class actions proceed on an opt-in or opt-out basis?

Class actions can proceed on an opt-out basis in the form of a representative action in the High Court or collective proceedings in the CAT (and even then, members of the class that are not domiciled in the United Kingdom must opt in to the proceedings: see section 2.3). Otherwise, class actions (being GLOs, group litigation and other collective proceedings before the CAT) are on an opt-in basis. See question 1.1. for further details.

3 Forum

3.1 In what forum(s) are class actions heard in your jurisdiction?

Group litigation orders (GLOs), representative actions and group litigation are heard in the High Court. Claims which relate to breaches of competition law will generally be transferred to the Competition Appeals Tribunal (CAT). The CAT hears collective proceedings claims made in relation to:

• an infringement decision under Chapter I or Chapter II of the Competition Act 1998; or
• an alleged infringement of Chapter I or Chapter II.

Collective proceedings cannot be transferred from the CAT to the High Court (CAT Rule 74).

3.2 Who hears class actions in your jurisdiction (eg, judges or juries)?

In the case of a GLO, a representative action or group litigation, the case will be determined by a single High Court judge.

Cases before the CAT are typically heard by a tribunal of three persons, chaired either by the president or by one of the chairs. The other two members are drawn from either the chairs or the ordinary members.

The CAT consists of:

• a president, who is appointed by the lord chancellor and must:
• • be a lawyer qualified in any part of the United Kingdom of at least 10 years' standing; and
  • have appropriate knowledge and experience of competition law and practice;
• a panel of 32 chairs, who must be legally qualified with appropriate experience and knowledge of competition law or any other relevant law or practice; and
• a panel of (currently) 21 ordinary members, who are either lawyers or laypersons –for example:
• • professionally qualified economists or accountants; or
  • individuals who otherwise have appropriate experience and expertise in business or public service.

There are no civil jury trials in England and Wales.

3.3 Is there any opportunity for class action forum shopping in your jurisdiction? If so, what are the implications?

England and Wales follow the principle of forum non conveniens, a common law doctrine that allows a court to dismiss a civil action where an appropriate and more convenient alternative forum exists in which to try the action.

There is limited commentary on forum shopping before the CAT and it is not typically raised as an issue. As noted in question 3.1, CAT Rule 71 (which allows claims to be transferred from the CAT to the High Court) does not apply to collective proceedings.

4 Bringing a class action

4.1 What is the limitation period for bringing a class action in your jurisdiction? What requirements and restrictions apply in this regard?

High Court proceedings: For group litigation orders (GLOs), representative actions and group litigation, the limitation period for any cause of action will be the same as applies to any individual claims. Limitation periods differ depending on the cause of action. Under the Limitation Act 1980, the limitation period for a breach of contract claim is six years from the date of breach and, in negligence, six years from the date on which the damages were suffered. There are various exceptions, including where there are allegations of fraud.

Competition Appeals Tribunal (CAT): In the CAT, in respect of claims for loss or damage where the competition infringement occurred after 9 March 2017, the claimant has six years (or five years in Scottish claims) from the start of the limitation period to bring a claim. The limitation period starts on the later of either:

• the date on which the anti-competitive behaviour ceased; or
• the claimant's ‘day of knowledge', defined as the day on which the claimant can reasonably be expected to know:
• • of the infringer's behaviour;
  • that the behaviour constitutes an infringement of competition law;
  • that the claimant has suffered loss or damage arising from the infringement; and
  • the identity of the infringer.

Limitation periods may also be suspended where, for example:

• the parties agree to engage in a dispute resolution process; or
• the Competition and Markets Authority opens an investigation into the competition law infringement in question.

Different rules apply for claims arising before 9 March 2017.

4.2 Do collective actions require certification? If so, what requirements must be met to obtain certification?

CAT: Traditional ‘certification' is relevant in the CAT only where there are three requirements for determining eligibility:

• There must be an identifiable class of persons – that is, it must be possible to say for any particular person whether that person falls within the class;
• The claims must raise ‘common issues' – that is, the same, similar or related issues of fact or law; and
• The claims must be ‘suitable' to be brought in collective proceedings – here the CAT will consider all matters it thinks fit, but examples include:
• • whether individual claims would be more effective; and
  • whether the costs of collective proceedings would outweigh any potential damages.

High Court proceedings: There is no formal certification process for representative actions, GLOs and group litigation; the formal requirements for such claims are set out in question 4.3.

4.3 What are the formal requirements for bringing a class action?

CAT: Collective proceedings in the CAT must be commenced by the person that proposes to be the representative, by sending a collective proceedings claim form to the CAT's registrar including:

• details of the claim;
• a description of the proposed class; and
• a summary of the basis on which it seeks to be authorised.

The proceedings can be continued only if the CAT makes a collective proceedings order. The requirements for the CAT to make that order are set out in question 4.2.

Representative actions: Under Civil Procedure Rule (CPR) 19.6, a claimant in a representative action must have the ‘same interest' in the claim as those being represented. The ‘same interest' test applies to both the issue to be determined and the remedy claimed. The claim is issued in the High Court by the claimant, which is stated on the claim form to represent itself and all other members of the class (together with details of how the class is defined). No permission is required from the court to issue the claim as a representative action but any party may then apply to the court for an order that the claim may not proceed as a representative action.

GLOs: Any party can apply for a GLO at any time before or after the relevant claims have been issued. Before making an application, the applicant's solicitors must consult the Law Society's Multi-Party Action Information Service for information about other cases with the same proposed GLO issues. CPR Practice Direction 19B requires the application notice or written notice in support to include:

• a summary of the nature of the litigation;
• the number and nature of claims already issued;
• the number of parties likely to be involved;
• the common issues of fact or law that are to be the GLO issues; and
• whether there are any matters that distinguish smaller groups of claims within the wider group.

The application must be served on the respondent which, if it wishes to oppose the application, can attend the hearing and make submissions. In deciding whether to order a GLO, the court will consider:

• whether there are common or related issues of fact or law; and
• whether it is satisfied that there are a sufficient number of claims to justify the granting of a GLO and to make it an efficient way of proceeding.

The court can also order a GLO on its own initiative.

Group litigation: Group litigation – whereby the court manages individual actions together under its general case management powers – can be ordered by the court on its own initiative or by the parties requesting the same. This is usually done in advance of the first case management conference by writing to the court to request that the cases be managed together by a docketed judge. The individual to address the application to (and the criteria to be applied) will depend on the court in which the claims are issued, but factors generally include:

• the same or similar issues arising in the cases; and
• the saving of time and costs in those cases being managed together (eg, see Paragraph D1.4 of the Commercial Court Guide).

In addition to the procedural mechanisms for group litigation described above, multiple claimants can use a single claim form where the claims can be "conveniently disposed of in the same proceedings" under CPR 7.3. The court's permission is not required.

4.4 What are the procedural and substantive requirements for bringing a class action? Do any minimum thresholds apply in this regard?

See question 4.3.

4.5 How are potential class members notified of the proceedings? Is there a deadline by which they must join the class action?

Representative actions: Given their opt-out nature, there is no default requirement to notify members of the class of a representative action (or deadline for them to join). However, the court may impose a notice requirement.

CAT: In the CAT, the class representative gives notice to the class members through a ‘notice of the collective proceedings order'. For many class members, this is the first they hear of the proceedings, so the CAT attaches particular importance to the form and content of the notice, which must be attached to the collective proceedings claim form for the CAT to review. The notice must:

• set out in plain and easily understood language a summary of the collective proceedings claim form and common issues;
• set out in a straightforward manner how class members can opt in or out of the proceedings and the consequences of doing so;
• identify the defendants; and
• annex the collective proceedings order.

The deadlines by which the class members must apply will be set out in the notice. The method of giving notice will depend on the case and the nature of the class – generally it must be one which ensures that the greatest proportion of class members receives the notice.

GLOs: When a GLO is approved, the court typically orders the parties to publicise the existence of the GLO, which has the potential to draw other potential claimants' attention to the class action.

In addition to the previously mentioned limitation periods, which could apply in scenarios where a party joins a class action by issuing its own claim, there is an additional court-imposed cut-off point for GLOs which is at the court's discretion and is specific to each GLO. After the cut-off date, claimants may no longer be entered on the group register without the court's permission.

4.6 How is jurisdiction over the class action determined?

There are no specific rules relating to group actions. Claims issued after 1 January 2021 are determined by the English common law rules or the Hague Choice of Court Agreements 2005 if it applies.

4.7 How is the applicable law determined?

There are no specific rules relating to group actions. The courts of England and Wales will determine the applicable law depending on the nature of the dispute and the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019.

Pursuant to Sections 47A and 47B of the Competition Act 1998, damages actions can be brought before the CAT based on an infringement decision or an alleged infringement of Chapter I or Chapter II of the Competition Act 1998. Following the United Kingdom's exit from the European Union and the end of the transition period on 31 December 2021, damages actions before the CAT may still be based on EU competition law infringements, provided that:

• the infringement occurred before the end of the transition period; and
• the claimant would have had the right to make the claim prior to the end of the transition period.

4.8 Under what circumstances (if any) must security for costs be provided?

High Court proceedings: A defendant can make an application for security for costs in accordance with CPR Part 25. In funded actions brought by multiple claimants, the application for security for costs is generally made against the litigation funder under CPR 25.14. In such cases, it will only be in rare and exceptional circumstances that a funder will be able to obtain a cross-undertaking in damages as a condition of the order (ie, that the defendant would have to agree to compensate the funder for the lack of access to those funds in the event that it lost at trial). Security for costs is awarded subject to the judge being satisfied that:

• one or more of the conditions set out in CPR 25.13(1)(a) are met; and
• having regard to all the circumstances of the case, it is just to make such an order.

CAT: In collective proceedings before the CAT, a defendant to a claim for damages may apply for security for costs, in which case such application must be supported by written evidence setting out the basis on which the security is sought. Under CAT Rule 59(4), the CAT will order security for costs only if it is just to do so, having regard to all circumstances of the case.

CAT Rule 59(5) sets out the conditions for security for costs, one of these being that "the claimant has been authorised to act as the class representative in collective proceedings under rule 78 and there is reason to believe that the claimant will be unable to pay the defendant's costs if ordered to do so".

5 Disclosure and privilege

5.1 What rules apply to disclosure in your jurisdiction? Do any exceptions apply?

High Court proceedings: Civil Procedure Rule (CPR) Part 31 sets out the rules on disclosure and inspection of documents. The duty to preserve documents arises as soon as a dispute is in contemplation and the duty of disclosure is ongoing until the case has concluded. Privileged documents are exempt from disclosure (see question 5.3).

The scope of disclosure should be agreed between the parties as far as possible and will ultimately be determined and ordered by the court. Once disclosure is ordered by the court, a party is obliged to list and make available to the court and the opponent(s) certain categories of documents. Parties must disclose documents that are harmful to their case as well as those that are helpful to it. There is a duty to actively search for disclosable documents, although searches can be limited to what is reasonable; and the duty extends to all documents which are or have been in the party's control at any point during the proceedings.

In group litigation orders (GLOs) and group litigation, disclosure will usually be ordered in relation to only a small number of test claimants, although certain disclosure may be ordered against a wider group of claimants in order to assist in the selection of test claimants.

In the Business and Property Courts, PD 57AD requires each party to provide to the other party:

• the key documents on which it relied in support of its claim/defence; and
• the key documents that are necessary to enable the other party to understand the claim/defence it must meet.

These should be provided by way of list (together with copies of the documents) at the same time that the party serves its pleadings.

Competition Appeals Tribunal (CAT): Disclosure in all proceedings before the CAT is not automatic and instead will proceed only on the order or direction of the CAT.

The CAT may give directions on disclosure at any point under CAT Rule 60 and also applies the CAT Disclosure Practice Direction. The CAT has regard to the general principles in CAT Rule 4 to ensure that disclosure is limited to what is proportionate in the circumstances, to minimise costs and deal with the claim justly.

Under the CAT Disclosure Practice Direction, any application for disclosure must include as narrow and precise a description of the evidence sought as possible. If that evidence is held by a competition authority:

• the application must be supported by evidence that no other person is reasonably able to supply the information; and
• a copy of the application must be served on the authority as well as the author of the document sought.

Copies of cartel leniency statements or settlement submissions may not be served on any parties other than the competition authority or the author of any such alleged statement or submission.

Under CAT Rule 61, a party may request disclosure of any document mentioned in:

• a claim form, defence or reply to a defence;
• a witness statement or affidavit; or
• an expert report (except for instructions referred to in an expert's report, unless ordered to be disclosed by the CAT).

A party need not disclose more than one copy of a document; and the duty to disclose is limited to documents that are or have been in that party's control. The duty of disclosure continues until the proceedings are concluded.

In collective proceedings before the CAT, the CAT may order disclosure to be given by:

• any party to the collective proceedings to any other party;
• the class representative to any or all represented persons; or
• any represented person to any other represented person (including a person within a different sub-class), the class representative or the defendant.

5.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

Parties may apply for disclosure of documents from a third party. Such an order is made at the judge's/CAT's discretion. The judge/CAT will consider whether:

• the documents sought are likely to support the applicant's case or adversely affect the opposing party's case; and
• the disclosure is necessary to fairly dispose of the case and save costs.

The application must specify the documents sought and require the respondent to identify those that are no longer under its control or in respect of which it has a right to withhold. The third party is usually entitled to have its costs of providing disclosure met by the applicant.

5.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

Where an order for disclosure has been made, parties are entitled to redact or withhold privileged documents from inspection by the other party or the court.

The main categories of document which are protected (or privileged) are:

• communications passing between a party and its legal advisers where the main purpose of that communication was to seek or obtain legal advice. This applies to transactional advice as well as advice regarding contentious matters. This is known as legal advice privilege;
• communications made when litigation is likely or has begun, passing between a party and its legal advisers, or between it or its legal advisers and third parties (eg, potential witnesses or experts) where the main purpose of the communication is to seek or obtain evidence for use in litigation, or to provide advice on litigation. This is known as litigation privilege; and
• correspondence and other communications generated as part of a genuine attempt to settle an existing dispute. This is known as without prejudice privilege.

The above principles equally apply to class actions in the CAT: there are no CAT-specific rules or guidance in relation to privilege.

5.4 What are the specific implications of the rules on disclosure and privilege in class action proceedings?

Two additional types of privilege can apply where there are multiple claimants: joint privilege and common interest privilege. Joint privilege applies where two or more parties engage the same solicitor to advise them under a joint retainer. It also applies where two or more parties share a joint interest in the subject matter of a privileged communication. Common interest privilege applies where a party that shares the same interest as another can disclose a privileged document to a co-party or a third party without losing privilege in that document.

6 Evidence

6.1 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

Factual, witness, expert and hearsay evidence are generally admissible in England and Wales, subject to certain rules. The court will order the evidence to be adduced by the parties following the close of the pleadings, usually as part of a case management conference. If a party wishes to rely on hearsay evidence at trial and the witness who is giving the hearsay evidence will not attend the trial, it must give notice of its intention to do so to the other party.

6.2 What is the applicable standard of proof in your jurisdiction?

High Court proceedings: The standard of proof in English High Court proceedings is "on the balance of probabilities", meaning more probable than not.

Competition Appeals Tribunal (CAT): The CAT collective proceedings regime is still very new, so there is limited case law to draw upon; and the CAT Rules and Guidance are silent on this subject. However, the CAT has previously given guidance on this area in the context of other competition law cases:

• Previous case law (eg, Napp Pharmaceutical Holdings Limited and Subsidiaries v Director General of Fair Trading) confirms that the standard of proof before the CAT is the ‘balance of probabilities' test.
• However, given that competition cases often involve heavy penalties, the CAT has previously ruled that:
• • decisions must be made on the basis of "strong and compelling evidence";
  • an infringement must be "duly proved"; and
  • an undertaking is "entitled to the presumption of innocence".

6.3 On whom does the burden of proof rest in class action proceedings?

High Court proceedings: The claimant generally bears the burden of proof in civil proceedings in England and Wales.

CAT: There is still limited case law in the context of collective proceedings before the CAT; and the CAT Rules and Guidance are silent on this topic. In the context of other competition law cases before the CAT, the burden of proof generally rests on the party alleging the infringement. However, there are some specific instances where the burden of proof will be reversed in competition claims in the CAT, which include the following:

• There is a rebuttable presumption that cartels cause harm: where a claim is made by an indirect purchaser (ie, a party that purchased the goods or services sold by the cartel further down the supply chain), there is a rebuttable presumption that the indirect purchaser suffered loss if it can prove that the direct purchaser paid an overcharge for the goods or services; and
• The burden of proof is expressly on the defendant in showing that there is any pass on of an overcharge or underpayment.

6.4 What are the specific implications of the rules on evidence in class action proceedings?

There are no specific implications for class actions, but the High Court and the CAT have wide powers to make directions in relation to evidence, including:

• the issues on which it requires evidence;
• the nature of the evidence it requires to decide those issues; and
• the exclusion of evidence.

In the case of group litigation orders and group litigation, it is usual for evidence to be provided only by the test claimants rather than by the whole claimant group.

7 Settlement

7.1 Can the class action proceedings be discontinued without a full trial? If so, how, and what are the implications?

High Court proceedings: In the High Court, cases are generally settled without the court's permission. An order noting that the claim has settled on confidential terms and any order as to costs is then sought jointly by the parties from the court.

If a claimant wishes to discontinue an action without settling the claim, it can give notice in accordance with Civil Procedure Rule Part 38. A claimant does not need the court's permission to discontinue a claim, but the general rule is that it will be liable for the defendant's costs of the claim.

Competition Appeals Tribunal (CAT): In the CAT, the procedure for collective settlements varies depending on whether the collective procedure is an opt-in or opt-out procedure. If an opt-in collective proceedings order (CPO) has been made, the class representative cannot settle the proceedings without the permission of the court before the time specified by the court as the time by which a class member may opt in to those proceedings (in order to prevent a defendant from settling before the class of represented persons has been fully constituted). The CAT's approval is not otherwise required to settle opt-in proceedings.

If the proceedings are opt-out collective proceedings where a CPO has been made, the class representative and those defendants that wish to be bound by the proposed settlement must make an application to the CAT for a collective settlement approval order setting out the details of the proposed collective settlement. The CAT can require a hearing to obtain further evidence on the merits of the application. At the hearing, the CAT may make the order where it is satisfied that the terms of the settlement are just and reasonable, taking into account factors such as:

• the amount and terms of the settlement;
• the number of persons likely to be entitled to a share of the settlement; and
• the likelihood of judgment being obtained in the proceedings for an amount significantly in excess of that amount.

If one or more class members are to be omitted from the collective settlement, the CAT may permit the proceedings to continue as to one or more claims between different parties.

7.2 Is court approval of the settlement required? If so, what factors will the court consider in this regard?

See question 7.1.

8 Court proceedings

8.1 Are court proceedings in your jurisdiction public or private? If the former, are any options available to the parties to keep the proceedings or related information confidential?

High Court proceedings: The principle of open justice means that court proceedings are public and the public can obtain copies of the pleadings.

A party can apply for a hearing (or parts of it) to be heard in private under Civil Procedure Rule (CPR) Rule 39.2. The court has discretion over whether to grant the application if it considers this necessary and in the interests of justice. The factors that the court will consider include whether:

• the object of the hearing would be defeated by publicity;
• the matter involves issues relating to national security;
• the proceedings involve confidential information and publicity would damage that confidentiality;
• a private hearing is required in order to protect the interests of any child or protected party;
• the hearing is in respect of an application made without notice and it would be unjust to any respondent for the hearing to be held in public; or
• the matter is considered uncontentious arising in the administration of trusts or of a deceased person's estate.

Competition Appeals Tribunal (CAT): Hearings before the CAT generally take place in public, except for any part of the proceedings where the CAT is considering confidential information. Where confidential information is being considered, the CAT may decide who can attend the hearing.

8.2 What approaches do the courts typically take to class action proceedings? Are preliminary issues commonly tried first, or are test cases commonly heard? What are the implications of these different approaches for the proceedings?

In High Court proceedings, both test claims of all/the majority of issues and the trial of preliminary issues are common. The court will consider what is the most expeditious, proportionate and fair means of resolving the dispute. The court will usually grant directions as to whether the case should be dealt with by way of preliminary issue or test claims at the first case management conference. Which approach is appropriate will depend on the facts of the case. There are pros and cons to each. For example, there may be cost savings in dealing with matters by way of preliminary issue. However, unless a preliminary issue disposes of the litigation, there is likely to be a delay to the proceedings which may impact on matters such as the witnesses' recollection of events and increase costs. If the case proceeds on the basis of test claims, the parties will need to ensure that:

• the test claims adequately address the issues in dispute across the claimant pool; and
• there is fairness between the parties as to the test claims selected.

As regards the CAT, see question 8.3.

8.3 How do class action proceedings unfold in your jurisdiction?

High Court proceedings: In litigation in the High Court, the general stages are:

• pre-action correspondence;
• pleadings;
• costs and case management conference;
• evidence (disclosure, witness statements and expert evidence);
• pre-trial review; and
• trial.

CAT: In collective proceedings before the CAT, there are generally four stages:

• Stage 1: The making of a collective proceedings order (CPO):
• • As an initial step, the proposed class representative sends the collective proceedings claim form to the CAT registrar and at the same time serves it on the parties and the Competition and Markets Authority.
  • The defendants file acknowledgement of service and a ‘summary of collective proceedings claim form' is published on the CAT website.
  • A first case management conference then takes place to determine directions in relation to the application.
  • A CPO application hearing takes place to determine the application and, if granted, the process moves to Stage 2. The defendant(s) also have the option of appealing to the Court of Appeal. If not granted, the proposed class representative may appeal the decision to the Court of Appeal; otherwise, the claim does not proceed.
• Stage 2: Trial of common issues:
• • After grant of the CPO, a case directions hearing is often held to determine next steps in the process.
  • This is followed by possible further applications (eg, applications to intervene, security for costs, specific disclosure), or possibly a settlement process.
  • If the claim is not settled beforehand, a final hearing will take place and judgment will be issued. There are potential further appeals for the parties that are unsuccessful.
• Stage 3: Determination of any individual issues:
• • Under CAT Rule 88, the CAT may at any time give directions that issues which are relevant only to certain represented persons must be determined in further hearings either separately or at the same time.
• Stage 4: Distribution of any damages:
• • See question 9 below.
  • In most cases, the CAT will order that damages be paid to the class representative so that the representative manages the distribution to the class or the represented persons.
  • CAT Rule 93 provides that for opt-out proceedings, the CAT must order that any damages be paid to the class representative or another person the CAT thinks fit.
  • However, for opt-in proceedings, the CAT has more discretion and may order that the damages be paid directly to the represented persons.

8.4 What is the typical timeframe for class action proceedings?

High Court proceedings: The timeframe depends on:

• the issues in dispute in the case; and
• the procedure by which the action is brought.

In general, it is likely to take at least two to three years from the issue of a claim to a final judgment. However, this can vary greatly, especially in developing areas of class action law/procedure. For example, in the representative action of Lloyd v Google LLC [2021] UKSC 50, the claimant applied for permission to serve the claim form out of the jurisdiction; the defendant objected and applied to the court to disallow the claim to continue as a representative action. The claim was issued in May 2017, with the Supreme Court's judgment handed down in November 2021, which determined that the claim should not proceed as a representative action.

CAT: The collective proceedings process before the CAT is still relatively new, with the first CPO having been issued in 2021 in Merricks v Mastercard. That claim and all subsequent collective proceedings claims remain ongoing, so it is difficult to predict a typical timeframe for such claims in the CAT from start to finish. It can, however, be a number of years – in Merricks v Mastercard, the initial application for a CPO was made in 2016 and rejected in 2017. This decision was appealed and in 2019, the Court of Appeal ordered that the CPO be remitted to the CAT for rehearing. Mastercard subsequently appealed to the Supreme Court, although this appeal was dismissed. The CPO was finally granted in 2021, four and a half years after the initial application, with the substantive issues of the claim yet to be decided.

8.5 Is the decision issued in class action proceedings binding on all members of the class?

High Court proceedings: Decisions in High Court class action proceedings will be binding on all members of the class in the following scenarios:

• Representative actions: CPR 19.6(4) provides that unless the court orders otherwise, any judgment or order given in a claim in which a party is acting as a representative is binding on all persons represented in the claim.
• Group litigation orders (GLOs): CPR 19.12 provides that where a judgment or order is given or made in a claim on the group register in relation to one or more of the GLO issues:
• • that judgment or order is binding on the parties to all other claims that are on the group register at the time the judgment is given or the order is made, unless the court orders otherwise; and
  • the court may give directions as to the extent to which that judgment or order is binding on the parties to any claim which is subsequently entered on the group register.
• Group litigation: The court will usually order as part of its general case management powers that all the court's findings on common issues of law and fact in the test claims will be binding on the other parties to the group litigation.

CAT: Under Section 47B(12) of the Competition Act 1998, the judgment of the CAT in collective proceedings is binding on all represented persons unless the CAT specifies otherwise. For opt-in proceedings, this means that a judgment will be binding on all class members that have opted in to the claim; while for opt-out proceedings, a judgment will be binding on all those that have not opted out of the claim. Under CAT Rule 91, the CAT may specify in a judgment or order the sub-class of represented persons or individual represented persons to which such judgment or order shall not apply.

9 Remedies

9.1 What remedies are available in class actions in your jurisdiction?

The remedies available following judgment will depend on the particular claim, but may:

• be monetary and non-monetary; and
• include, among other things, damages, declarations and injunctions.

However, the remedy sought is usually damages for losses suffered.

9.2 Are punitive damages awarded in your jurisdiction?

High Court proceedings: Punitive damages are available only in limited circumstances, as the courts have emphasised the materiality of the criminal element required for these damages to be considered. Punitive damages may be awarded where:

• a defendant:
• • is guilty of oppressive or unconstitutional action; or
  • has calculated that the money gained as a result of its wrongdoing would exceed the damages payable; or
• a statute expressly authorises it (Rookes v Barnard [1964] AC 1129 and Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL 29).

Punitive damages are not available for breach of contract (Addis v Gramophone Co Ltd [1909] AC 488).

Competition Appeals Tribunal (CAT): Punitive or exemplary damages are not available in collective proceedings before the CAT, although interest may be included in some cases if the CAT considers it appropriate.

9.3 What factors will the courts consider in deciding on the quantum of damages?

High Court proceedings: The nature of damages is generally compensatory and reflects the losses suffered by the claimants. The aim of an award for damages is to put a claimant in the same position as if the wrong had not occurred. The court will often be assisted by expert evidence and it is usual in class actions for each side to have its own court-appointed expert.

CAT: The CAT Rules and the CAT Guidance do not address this point specifically. The assessment of quantum of damages will depend on the circumstances of the case, but the CAT will often rely on expert evidence submitted by the parties. For example, in Merricks v Mastercard, the applicant sought a collective proceedings order (CPO) to represent over 46 million UK consumers who had made purchases from merchants using Mastercard payment services over a 16-year period. The applicant relied on an expert report to quantify the amount of damages in three steps:

• volume of commerce;
• overcharge percentages; and
• pass-through.

The CAT addressed each of these when considering the application and drew on the specific facts of the case when making its assessment. During the CPO application, it was submitted that the preliminary expert reports would be supplemented later in the proceedings by published market studies and competition authority decisions.

9.4 How are damages allocated among the members of the class?

High Court proceedings: In group litigation orders (GLOs) and group litigation, damages are assessed on an individual basis. In representative actions, the damages claimed must be the same for all members of the class.

CAT: In collective proceedings before the CAT, the CAT will not generally assess how much each represented person may recover in respect of the claim, but instead will award damages on an aggregate basis – for example, by calculating the damages on a class-wide basis by way of a lump-sum award against the defendant(s). If an aggregate award cannot be made for the entire class, the CAT may make a determination based on sub-classes of the group.

If an aggregate award is made, the CAT will give directions as to how the entitlement of each member of the class should be calculated (eg, by specifying a formula or via the appointment of an independent third party). The defendant(s) are not typically involved and so the process is not generally adversarial. In most cases, damages are awarded to the class representative, which will then distribute them to the class.

10 Appeals

10.1 Can the court's decision in the class action be appealed? If so, on what grounds and what is the process for doing so?

High Court proceedings: Permission to appeal can be sought directly from the trial judge or directly from the Court of Appeal. Strict time limits for seeking permission to appeal apply. Civil Procedure Rule (CPR) 52.6(1) provides that permission to appeal may only be given where:

• the court considers that the appeal would have a real prospect of success; or
• there is some other compelling reason why the appeal should be heard – for example, if the case raises issues of general public importance.

The grounds of appeal may include the following:

• The court has made an error of law, of fact or in the exercise of its discretion. In practice, most appeals arise in relation to errors of law; or
• The judgment is unjust because of a serious procedural or other irregularity.

Competition Appeals Tribunal (CAT): Proceedings in the CAT may also be appealed to the Court of Appeal.

For collective proceedings claims, appeals are limited to:

• points of law arising from a decision in relation to an award of damages, the grant of an injunction or infringement findings in standalone claims; and
• decisions as to the amount of an award of damages or any other sum.

Appeals in respect of claims included in collective proceedings may only be brought by the class representative or the defendant(s) and not by the class members.

An appeal against a decision to refuse an application for a collective proceedings order can be brought before the Court of Appeal if it raises a point of law. Otherwise, the decision may be challenged by judicial review.

11 Costs and fees

11.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

High Court proceedings: Costs and fees are likely to include:

• solicitors' and barristers' fees;
• expert fees;
• court fees;
• electronic disclosure platform fees;
• transcription costs; and
• the costs of hearing bundles (often electronic in class actions).

The general principle in English High Court proceedings is that a winning party can recover its costs from a losing party on the standard basis (typically around 65%); however, the court has a wide discretion to make costs awards which reflect the outcome of litigation.

Competition Appeals Tribunal (CAT): A winning party in the CAT can recover its costs; but the CAT has discretion as to the allocation of costs, taking into account a number of factors. In particular, under CAT Rule 104(4), the CAT may take into account:

• the conduct of all parties in relation to the proceedings;
• any schedule of incurred or estimated costs filed by the parties;
• whether a party has succeeded on part of its case, even if that party has not been wholly successful;
• any admissible offer to settle made by a party which is drawn to the CAT's attention and which is not a Rule 45 offer to which the costs consequences under Rules 48 and 49 apply;
• whether costs were proportionately and reasonably incurred; and
• whether costs are proportionate and reasonable in amount.

The CAT may also direct parties to pay sums to the CAT itself in order to reimburse the costs of witnesses or experts summoned on the CAT's behalf.

11.2 How are the costs and fees allocated among the members of the class?

Group litigation orders (GLOs) and group litigation: Civil Procedure Rule (CPR) 46.6 applies in respect of GLOs and provides, broadly, for claimants to incur the following types of costs:

• common costs – that is:
• • costs incurred in relation to the GLO issues;
  • individual costs incurred in a test claim; and
  • costs incurred by the lead legal representative in administering the group litigation; and
• individual costs – that is, costs incurred in relation to an individual claim which is not a test claim on the GLO register.

When an order for common costs is made, each group litigant will be severally liable for an equal proportion of the common costs unless the court orders otherwise (CPR 46.6(3)). This is done irrespective of when it joined the group register. This approach is generally followed in group litigation.

CPR 46.6 is viewed as the starting point in respect of orders for costs and the court retains a wide discretion. The group litigants can agree their own arrangements under a cost-sharing agreement.

Representative actions: As the class in ‘same interest' representative actions will not normally be joined as parties to the claim, they will not ordinarily be liable to pay any costs incurred by the representative. In practice, such claims are usually funded by litigation funders, with the benefit of after-the-event insurance.

CAT: In collective proceedings before the CAT, costs are generally awarded only to or against the class representative and not to or against members of the class. The two exceptions are as follows:

• If a class representative is appointed for a sub-class, then costs associated with issues relevant only to that sub-class may be awarded to or against the representative; and
• Costs associated with the determination of issues specific to certain members of the class may be awarded to or against that specific member.

11.3 What happens if the claim of a class member is withdrawn before the proceedings have terminated?

In relation to ‘opt-in' claims in the High Court, CPR 46.6(7) provides that where a claim is removed from the GLO group register, the court may make an order for costs in that claim, including a proportion of the common costs incurred up to the date on which the claim is withdrawn. A similar approach is usually adopted in group litigation.

11.4 Do the courts manage costs during the proceedings?

In High Court proceedings, costs budgeting is required automatically unless a claim is worth £10 million or more. Where the amount on the claim form exceeds £10 million, the costs budgeting regime will not apply; however, the court has discretion to order what it considers to be just and appropriate and in accordance with the overriding objective.

Under CAT Rule 104(2), the CAT may at any time during the proceedings make any order it thinks fit in relation to the payment of costs in respect of the whole or part of the proceedings.

11.5 How do the courts assess the costs and fees at the end of the proceedings?

See question 11.1.

12 Funding

12.1 Is legal aid available for class actions in your jurisdiction? If so, what requirements and restrictions apply in this regard?

No. Legal aid is not available in respect of multi-party actions in either the High Court or the Competition Appeals Tribunal (CAT).

12.2 Are contingency fees and similar arrangements permitted in your jurisdiction? If so, what requirements and restrictions apply in this regard?

High Court proceedings: In High Court proceedings, both conditional fee arrangements (CFAs) and damages-based agreements (DBAs) are permitted, although CFAs are more common.

To be valid, CFAs must comply with:

• the conditions and requirements of Sections 58 and 58A of the Courts and Legal Services Act 1990;
• the requirements in the Solicitors Regulation Authority Standards and Regulations; and
• the Civil Procedure Rule (CPR).

Section 58AA(4) of the Courts and Legal Services Act 1990 sets out the requirements of a DBA. These are entered into between the legal adviser and claimant and provide for payment of a percentage of the damages to the legal adviser if the claim succeeds. This fee is capped at 50% of the damages recovered in commercial litigation. The costs are assessed by the court on an hourly-rate basis and the client can recover assessed costs from its opponent (this will be deducted from the DBA fee). However, expenses such as court fees and expert reports must be paid by the client in addition to the DBA fee (unless recovered from the other party).

Competition Appeals Tribunal (CAT): Under CAT Rule 113, the rules on funding arrangements made under Part 2 of the Courts and Legal Services Act 1990 apply to proceedings before the CAT. As noted in question 12.3, if a third-party funder also applies to act as the class representative, the CAT will carefully consider any conflicts of interest that may arise.

In proceedings before the CAT, DBAs for payment of legal fees are enforceable only in relation to opt-in collective proceedings. Such agreements are unenforceable in relation to opt-out collective proceedings.

The general position under CAT Rule 113 is subject to Section 47C of the Competition Act 1998 and CAT Rule 93(4). These provisions allow the CAT to direct that all or part of any undistributed damages be paid to the class representative in respect of all or part of any costs, fees or disbursements incurred by the class representative in connection with the collective proceedings.

12.3 Is third-party funding permitted in your jurisdiction? If so, what requirements and restrictions apply in this regard?

High Court proceedings: Third-party funding is permitted. The funder is not permitted to take control of the litigation away from the claimant or to take an excessive share of the recovery.

Under English law, there is no requirement to notify an opponent about litigation funding. However, it is possible for an opponent to seek a court order for the disclosure of the identity of a funder.

CAT: Third-party funding is permitted for collective proceedings before the CAT; however, the CAT will consider any potential conflicts of interest that may arise, particularly if the funder also acts as the class representative (as noted in Paragraph 6.30 of the CAT Guidance).

12.4 What are the specific implications of such various funding arrangements in class action proceedings?

Third-party litigation funding is increasingly available for claimants seeking to pursue complex multi-party claims. This, together with after-the-event insurance, has driven the growth of class actions in England and Wales.

The availability of funding in class actions does come with the opportunity to obtain security for costs and non-party costs orders against the funder, which would not be available (security for costs) or which would potentially be unenforceable (costs orders) against a class of claimants.

13 Trends and predictions

13.1 In which areas are class actions most commonly brought? Have there been any major cases of note in recent years?

High Court proceedings: In recent years, there has been an increase in class actions related to:

• data breaches/misuse;
• securities litigation (Sections 90 and 90A of the Financial Services and Markets Act 2000);
• environmental/human rights;
• employment rights; and
• product liability.

There have been a number of important decisions from the Supreme Court in recent years, including:

• Lloyd v Google (a data misuse claim brought as a representative action);
• Merricks v MasterCard (on the certification of opt-out proceedings in the Competition Appeals Tribunal (CAT)); and
• Vedanta v Lungowe (on the question of class actions brought by claimants outside of the jurisdiction against UK-based parent companies).

CAT: The class action regime in the CAT is in its infancy, having been introduced in 2015, with the first collective proceedings order (CPO) granted in 2021. To date, the collective actions brought before the CAT have involved:

• financial services;
• transport;
• automotive;
• communications; and
• big tech.

13.2 How would you describe the current class action landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

There has been a significant increase in applications for opt-out CPOs in the CAT given the relatively low threshold required to obtain certification and the ability to aggregate losses as a whole. These claims have predominantly been mass consumer actions, where the individual damages claimed are low but the large number of claimants within the class means the value of the overall claim is very high. These claims are at a relatively early stage and it will be interesting to see how they develop and how damages are assessed/settlements are structured as they progress through the CAT.

14 Tips and traps

14.1 What would be your recommendations for the smooth progress of class actions in your jurisdiction and what potential pitfalls would you highlight?

There are various means by which class actions can be brought in England and Wales, and the landscape continues to evolve. It is important to consider which procedure is best suited to a proposed cause of action in light of the factors outlined in this Q&A.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.