Full Transcript for Class actions: In conversation (England and Wales) – EP1 The evolving landscape

formal GLO or not, uh we should point out that these claims importantly are brought on an opt-in basis, so that the claimants all have to issue claims and be named on the claim form in contrast to the competition regime you mentioned earlier, which allows claims to be brought on behalf of anyone who falls within a defined class without them having to take any steps to join the litigation or even be named in it. 00:05:18.800 --> 00:05:19.680 Yes, that's right. 00:05:19.839 --> 00:05:31.519 Um there is another opt-out regime that can be used in high court claims, which is um what's known as the representative action procedure, and that is under CPR 19.8. 00:05:31.759 --> 00:05:50.079 Um and what that essentially does is to allow a claim to be brought on behalf of all those who have the same interest in it, but it can't be used to determine issues that depend on um particular circumstances of individual claimants, and most claims will have at least some individual issues. 00:05:50.160 --> 00:05:52.959 So it hasn't really been uh widely used. 00:05:53.439 --> 00:05:54.959 Yeah, absolutely. 00:05:55.120 --> 00:06:04.800 Uh so in our podcast four years ago, of course, we discussed the high-profile decision in Lloyd and Google, which at that point had just been decided by the Supreme Court. 00:06:05.040 --> 00:06:18.399 That case held that uh representative action couldn't be used to bring a claim for damages for alleged breaches of the Data Protection Act 1998 for that reason, because the claims required proof of damage on an individual basis. 00:06:18.800 --> 00:06:36.160 But interestingly, the court in that case left the door open to bringing claims on what they called a bifurcated basis, so that the representative action procedure could be used to determine issues that were truly common, and individual issues could be left over to be determined separately. 00:06:36.399 --> 00:06:44.240 Now, at the time, Greg, I think you were skeptical that we would actually see claims brought on that basis, mainly because of funding difficulties. 00:06:44.639 --> 00:06:45.839 How has that turned out? 00:06:46.399 --> 00:06:47.120 Yes, that's right. 00:06:47.199 --> 00:06:48.879 I was um quite skeptical. 00:06:49.439 --> 00:06:52.560 We have seen some claims, but none that have made it to trial. 00:06:52.639 --> 00:06:56.240 And the funding issues um certainly haven't yet been resolved. 00:06:56.399 --> 00:07:05.759 Um, we'll actually do an episode in the series on representative action specifically, um, which also form the subject of a new chapter in the in the third edition. 00:07:05.920 --> 00:07:09.839 So it probably doesn't make sense to go into too much uh detail on that now. 00:07:10.240 --> 00:07:10.959 Yes, sure. 00:07:11.120 --> 00:07:17.120 Um so let's move on to funding then, which has been one of the big stories, I think, of the last four years. 00:07:17.439 --> 00:07:19.920 Damien, can you bring us up to speed on that? 00:07:20.399 --> 00:07:20.959 Yes, sure. 00:07:21.040 --> 00:07:30.240 The main development over the last four years has been the UK Supreme Court's decision in PACAR, which was handed down in July 2023. 00:07:30.720 --> 00:07:43.920 In that case, the UK Supreme Court held that certain types of litigation funding agreements, which calculate the funders' return as a share of damages, were a form of damages-based agreement. 00:07:44.079 --> 00:07:50.240 And as a consequence, the validity of a large number of those agreements were called into question. 00:07:50.560 --> 00:07:54.160 This caused real disruption in the litigation funding market. 00:07:54.480 --> 00:08:05.920 Litigation funders had to move to restructure existing arrangements and often moved to a return on a multiple outlay basis instead of a share of damages basis. 00:08:06.240 --> 00:08:16.560 This prompted then a review by the Civil Justice Council in its work on a review of litigation funding with its final report released in June 2025. 00:08:17.040 --> 00:08:35.679 The Civil Justice Council recommended the government introduce legislation at the earliest opportunity to clarify the litigation funding agreements were neither DBAs nor claims management services, and that such legislation be prospective and retrospective in effect. 00:08:36.080 --> 00:08:45.759 It also recommended the introduction of a light touch statutory regime of litigation funding through regulations issued by the Lord Chancellor. 00:08:46.000 --> 00:08:51.120 Regulation by the Financial Conduct Authority was not recommended at that stage. 00:08:51.519 --> 00:09:00.559 The government has now accepted these two key recommendations but has not given further detail as yet as to its plans and the timing. 00:09:00.799 --> 00:09:03.600 This has led to continued uncertainty in the market. 00:09:04.080 --> 00:09:05.200 Yeah, absolutely. 00:09:05.279 --> 00:09:12.240 And we're certainly closely following what might happen when we get more news from government on that. 00:09:12.480 --> 00:09:20.320 So in terms of where we're seeing class actions being brought in England and Wales, uh, Greg, what would you say are the most significant areas? 00:09:20.879 --> 00:09:26.879 Well, generally, actually, that they're the areas that we have devoted individual chapters to in the book. 00:09:26.960 --> 00:09:53.519 Um so in the first edition, uh, as well as the chapter on competition claims under the opt-out regime in the CAS, in the Competition Appeal Tribunal, which we've already touched on, we had separate chapters on shareholder claims and on environmental and human rights-based claims, particularly actually those brought against um UK-based parent companies relating to the acts of their subsidiaries overseas. 00:09:53.919 --> 00:10:01.679 Then in the second edition, we added chapters on employment claims, product liability cases, and data protection. 00:10:01.840 --> 00:10:04.240 And all of those are still very much live areas. 00:10:04.399 --> 00:10:17.440

And in fact, product liability in particular has seen really the largest class action ever brought in this jurisdiction with the diesel emissions litigation that I mentioned earlier. 00:10:17.679 --> 00:10:36.720 For the new third edition, in addition to the new chapter on representative actions, which we've already mentioned, there's a new chapter on tax disputes, which are often brought on a multi-party basis given the um the potential for large numbers of taxpayers to be affected by the same issue. 00:10:36.960 --> 00:10:44.000 And also a very interesting chapter on class action arbitration, looking at the potential for that area to develop. 00:10:44.480 --> 00:10:44.879 Thanks. 00:10:44.960 --> 00:10:46.720 Um that's a good overview. 00:10:46.960 --> 00:10:49.440 So let's turn now to the global context. 00:10:49.759 --> 00:11:01.279 Damien, you're obviously well placed to speak to the Australian position since you're based in Melbourne, and of course you're a co-author of the leading Australian text on the subject, which I understand will soon be in its fourth edition. 00:11:01.679 --> 00:11:02.879 Yes, that's right, Moira. 00:11:03.120 --> 00:11:06.879 Uh Australia's a very active jurisdiction for class actions. 00:11:07.039 --> 00:11:16.399 We've had an opt-out class actions regime at the federal level since 1992, and so almost now for 35 years it's been in place. 00:11:16.639 --> 00:11:22.639 There's also a similar procedure which exists in most of the Australian state jurisdictions as well. 00:11:22.960 --> 00:11:31.600 The threshold for commencing a class action in Australia is relatively low, and there is no certification requirement as there exists in the US. 00:11:31.840 --> 00:11:51.440 There's also a very active funding market in Australia, and in addition, in the state of Victoria, there has existed since July 2020 a contingency fee regime which permits lawyers to receive a percentage of any judgment or settlement amount, which is all overseen by the courts. 00:11:51.679 --> 00:11:59.600 What this has all meant in combination is that Australia has been a very active jurisdiction for class actions. 00:11:59.840 --> 00:12:20.639 In the most recent empirical research in Australia on the number of class actions conducted by Professor Moribito, which takes it to the end of calendar year 2024, there's been almost a thousand class actions filed across all jurisdictions in Australia since the commencement of the regime in 1992. 00:12:20.879 --> 00:12:39.200 In terms of types of class actions, those commenced by shareholders are the most prominent by far and away, with also a large number in the area of investors and consumer protection, and also in the area of product liability, and we expect that to continue. 00:12:39.440 --> 00:12:54.240 Some areas to watch include data protection and ESG claims, together with the growth of contingency fees in Victoria, and to keep an eye on whether a similar regime for contingency fees is introduced at the federal level. 00:12:54.720 --> 00:12:54.960 Thanks. 00:12:55.360 --> 00:12:55.679 Interesting. 00:12:55.840 --> 00:12:59.519 Sounds like there's lots going on in Australia as well. 00:12:59.919 --> 00:13:07.200 What about the potential for class actions to be brought on on a global basis in multiple jurisdictions? 00:13:07.519 --> 00:13:07.919 Greg? 00:13:08.639 --> 00:13:17.600 Yes, we we certainly see lots of class actions brought here in the English courts by claimants based in other countries relating to events that occurred in those countries. 00:13:17.840 --> 00:13:21.679 So yes, uh class actions are very international in that sense. 00:13:22.480 --> 00:13:35.759 There's also been a broader trend towards the globalization of class action risk with parallel claims relating to basically the same alleged wrongdoing being brought in multiple jurisdictions. 00:13:36.000 --> 00:13:45.279 So we've seen that, for example, with the trucks litigation in the competition space and with the diesel emissions litigation that we've been discussing. 00:13:45.679 --> 00:13:54.080 It's a risk, particularly where issues arise in relation to globally marketed products or global business practices. 00:13:54.399 --> 00:14:05.039 And what's clear is that claimant firms and funders in various jurisdictions are watching trends elsewhere and really quite quick to follow suit if a new claim opportunity arises. 00:14:05.440 --> 00:14:05.840 Thank you. 00:14:05.919 --> 00:14:10.720 Yes, I'm sure it's something we'll continue to see going forward. 00:14:11.200 --> 00:14:13.600 That brings us to the end of this episode. 00:14:13.759 --> 00:14:22.159 Uh if listeners want to go deeper on any of the topics discussed, uh take a look at the new third edition of the textbook, which is available on Westlaw. 00:14:22.320 --> 00:14:30.080 Uh and also I hope you'll keep an eye out for further episodes in this series where we'll be returning to some of the themes we've discussed in more detail. 00:14:30.240 --> 00:14:33.440 Uh thank you both, Damien and Greg, and thanks to all of you for listening. 00:14:33.759 --> 00:14:34.399 Thanks, Maura. 00:14:34.480 --> 00:14:34.960 Thanks, Greg. 00:14:35.200 --> 00:14:36.240 Yeah, thank you both.