Introduction

The second half of 2024 has proved an eventful one for UK group litigation and featured the commencement of the first trial in the largest opt-in claim to date and judgment in the first competition opt-out collective action to proceed to trial, among other developments.

This update discusses recent decisions in group actions in the English High Court and Court of Appeal, including cases which suggest that the courts are taking a more restrictive approach to permitting the use of the representative action procedure to bring opt-out class actions, and key developments which are anticipated later in the year.  For an overview of developments in competition collective actions, see our separate update here.

Part 1: A narrowing of the approach to representative actions?

In contrast to the flexibility adopted by the Court of Appeal in Commission Recovery Ltd v. Marks & Clerk LLP in allowing bifurcation of the issues such that the claims could proceed as a representative action (as discussed in our previous bulletin here), the courts have more recently taken a stricter view of the requirements under CPR 19.8 and rejected use of the bifurcation procedure in a range of claims.

Representative action must help further the overriding objective: "same interest" is not enough

In January 2025, the Court of Appeal dismissed the claimants' appeal against a decision (also discussed in our last bulletin) to strike out securities class actions brought as opt-in representative proceedings in Wirral Council v. Indivior plc.¹ The claimants had proposed a bifurcated procedure relying on the Supreme Court decision in Lloyd v. Google LLC² whereby issues common to the class (being those relating to the defendants' liability) would be determined first on a representative basis, with non-common issues such as reliance, causation and limitation postponed to a later stage.

Like the lower court, the Court of Appeal objected to the fact that the claimants' proposal prevented the court from case-managing the claims in a way which promoted the overriding objective, such as by ordering the non-common issues to be progressed in parallel to ensure the burden of the litigation did not fall exclusively on the defendants. Bifurcation of the issues in this way also prevented the court from striking out claims which could not prove reliance as a matter of English law following a recent High Court decision.³ It was also significant from the court's perspective that the claims could instead proceed as a multi-party claim (and indeed the institutional investors who formed part of the class had brought multi-party claims on a protective basis). In those circumstances, it would still be open to the claimants to propose a bifurcated approach to the issues but with the obvious benefit that the court would retain control over the litigation.

Comment

In addition to satisfying the "same interest" requirement, claimants must therefore demonstrate that structuring the claims as a representative action would best facilitate their just and proportionate resolution, as the court will weigh up the advantages of alternative mechanisms when deciding whether the claims can proceed under CPR 19.8. Where the intention appears to be to gain some other tactical advantage to the detriment of the defendants, or where another procedure is available which allows the court to more closely manage the claims, a court may refuse to grant the action. Prospective claimants may wish to bear in mind the court's cautionary remarks that the claimants in Wirral were perhaps "reading too much into [Lloyd v. Google]" and that ultimately the representative action will not always be appropriate and available as a litigation tool in every case.

Meanwhile, other recent decisions have focused on the "same interest" requirement and provided greater clarity on when that will not be satisfied.

Court rejects "Russian dolls" definition of class

In Smyth v. British Airways plc,⁴ a representative action was brought for flight delay/cancellation compensation under EU Regulation 261/2004 (the Regulation). The Regulation excluded compensation in certain cases and the lead claimant proposed a series of procedural stages under which claims falling within those exclusions would be identified (using information to be provided by the defendants) and removed from the proposed class. 

The High Court directed that the lead claimant could not act as class representative⁵ and struck out the representative action on the basis that the class did not have a "same interest". The judge cited Court of Appeal authorities⁶ which established that the class must satisfy the test both at the time of the application and throughout the proceedings. It was apparent that the initial definition of the class had the effect of grouping together widely diverging claims each of which raised its own issues and it was not possible to identify at the outset any common issues the resolution of which would benefit the class as a whole. In the court's view, the proposal of staggered amendments to the class itself seemed to be an acknowledgment that the test could only be met once those stages had concluded, which was clearly too late.

Class defined by reference to trial issues: putting the cart before the horse

A High Court decision in January 2025 found that a claimant could not act as class representative in an IP infringement class action for similar reasons. In Getty Images (US) Inc v. Stability AI Ltd,⁷ a representative action was brought against the defendant alleging the use of copyrighted works to train its deep learning AI model without consent and the class was defined as all copyright owners whose works were exclusively licensed to the lead claimant and in which copyright had allegedly been infringed by the defendant. The court concluded that this definition meant membership of the class was only ascertainable at trial rather than at all stages of the proceedings and that, even on a successful outcome, an individualised assessment would be required to determine which claims fell within the class.  It was also unclear how the lead claimant proposed to identify which works had been used to train the AI model. The court noted that, without a clear proposal as to how the claims would be case-managed to trial, it was not possible to determine whether allowing the representative action would help to further the overriding objective and, as such, the court would not have exercised its discretion to allow the action even if the "same interest" test had been met.

Comment

The courts' strict approach to satisfaction of the "same interest" requirement is motivated by the need for fairness and certainty between the parties. Clearly, it is impermissible for lead claimants to bring a representative action in the expectation that any defects in the definition of the class will be remedied by the end of the proceedings: that is putting the cart before the horse and goes well beyond the purpose of the CPR 19.8 procedure.

A (final) nail in the coffin of data privacy representative actions

In Prismall v. Google UK Ltd,⁸ the Court of Appeal unanimously upheld the High Court's decision to strike out a data privacy representative action. The claim for misuse of private information (MOPI) was brought in respect of a transfer of patient-identifiable medical records and damages were claimed for loss of control of the information. The High Court had found that the requirement of "same interest" as applied to an MOPI claim required each class member to have a realistic prospect of establishing a reasonable expectation of privacy. This could not ultimately be established in the case of a notional claimant whose claim represented the irreducible minimum scenario for the class and so the class did not have the "same interest".

The Court of Appeal agreed, commenting that "a representative class claim for misuse of private information is always going to be very difficult to bring" given the test inevitably involves considering the extent to which each individual patient has chosen to make their information public, which is likely to be fatal to demonstrating any "same interest". 

The decision (which we discuss in more detail here) confirms the inherent difficulties of bringing data privacy representative actions, to the extent there remained any lingering doubt following Lloyd v. Google.

Part 2: Recent issues in GLOs

The courts have also recently grappled with how their discretion should be exercised in granting group litigation orders (GLOs), another key mechanism for bringing group claims, and in determining whether decisions in test claims should bind other claims in the register. 

In Abernethy (unreported), the Birmingham County Court recently refused an application for a GLO in Payment Protection Insurance claims alleging an unfair relationship under the Consumer Credit Act 1974. Although it found that the claims gave rise to several common or related issues of fact or law as required by CPR 19.21, it refused to exercise its discretion to order a GLO on the basis that this would not further the overriding objective. There was no evidence to suggest that making a GLO in these circumstances would help to resolve the claims more quickly and cost-effectively and, in fact, it was likely that a trial of test claims would delay the resolution of the remaining claims and result in greater expense than if the claims were brought individually. As in Wirral above, the court was mindful that a GLO should only be granted where this would in fact promote the resolution of the claims and not due to other motivations unconnected with the overriding objective.

In AXA Sun Life plc v. Commissioners of Inland Revenue,⁹ the High Court issued a judgment which determined certain GLO issues as to limitation and set-off in test cases. CPR 19.23(1) provides that a judgment determining one or more GLO issues binds all other claims on the group register "unless the court orders otherwise", and the Court of Appeal was asked to consider when a court could "order otherwise". It found that that power must be exercised in accordance with the overriding objective and the purpose of the GLO procedure in enabling the cost-effective resolution of claims without re-litigation of the same issues. As such, the general rule must be that decisions on GLO issues will bind other claims on the register in the absence of a "strong reason", though a court may order otherwise where:

• in respect of factual issues, it was apparent that the factual differences between claims called for a different approach; and
• in respect of issues of law, special circumstances arise which would lead to injustice if the determination were to bind the other claims.

Part 3: Looking ahead

Following a confidential settlement in late 2024, the preliminary issues trial in Commission Recovery which was expected to provide importance guidance as to the recovery of damages in representative actions did not ultimately go ahead at the start of the year.

Nevertheless, other significant developments in respect of UK group actions are expected in 2025. The Civil Justice Council has extended its consultation on third-party litigation funding in England and Wales (which we reported on here) to 3 March 2025. Parties and funders alike await the final report and recommendations which are expected by the summer. Trial of the factual and legal issues in respect of the four lead GLOs in the "Pan-NOx" emissions litigation is scheduled to commence in October 2025 and will be closely watched as an example of the courts' developing approach to managing complex group litigation.

1. [2025] EWCA Civ 40.↩
2. [2021] UKSC 50.↩
3. Allianz Funds Multi-Strategy Trust [2024] EWHC 2710 (Ch). There, the High Court found that investors could not rely on market/price reliance to bring a claim for misleading statements in published information under section 90/Schedule 10A of the Financial Services and Markets Act 2000. In order to claim, they must have either read the published information or the gist of it must have been communicated by a third party.↩
4. [2024] EWHC 2173 (KB).↩
5. The evidence indicated that the lead claimant and the funder were pursuing the action chiefly for personal financial gain rather than to obtain redress for passengers.↩
6. Jalla v. Shell International Trading and Shipping C Ltd [2021] EWCA (Civ) 1389 and Emerald Supplies Ltd v. British Airways plc [2010] EWCA Civ 1284.↩
7. [2025] EWHC 38 (Ch).↩
8. [2024] EWCA Civ 1516.↩
9. [2024] EWCA Civ 1430.↩