Class Actions in civil law are subject to an application for a group litigation order (GLO) as set out section III of CPR 19.
Often, the loss suffered by any single claimant is not large enough to make individual claims economically viable, but pursuing claims on a collective basis brings economies of scale. Dealing with multiple claims on a collective basis can also offer efficiencies. For either party, however, there are risks and challenges to navigate.
A GLO is an order which provides for the case management of claims which give rise to common or related issues of fact or law. A judgment or order in relation to any of the GLO issues is binding on the parties to all claims being managed under the GLO.
In many group actions there will be a single claim group represented by a single firm of solicitors.
In other cases, however, there may be a number of different firms representing different claimant groups.
In shareholder litigation, for example, there may be a group (or groups) made of up institutional shareholders and another group (or groups) of individual shareholders. That was the position, for example, in the RBS Rights Issue Litigation.
In such circumstances, the solicitors acting for the claimants may decide among themselves who will act as lead solicitors, or the court may appoint lead solicitors to manage the conduct of the group issues.
In some cases, multiple lead solicitors may be appointed and given responsibility for different parts of the case. Such a situation needs to be managed carefully, as it can lead to duplication and the risk of conflicts emerging between the different groups and the solicitors representing them. It can also complicate matters in settlement negotiations.
Disclosure of documents
In principle, the rules of disclosure apply to group actions as they do to any other claim.
Factual witness evidence
Factual witness evidence is another area where there will often be an unequal burden between the claimant group and the defendant.
As in any litigation, the court’s permission is needed in order to put in evidence an expert’s report or to call an expert to give oral evidence at trial, and expert evidence will be restricted to that which is reasonable required to resolve the proceedings.
Expert evidence will often be an important feature of shareholder litigation, both as to the technical subject matter of the dispute and as to the effects any alleged wrongdoing in terms of the impact on share value.