At last week’s European Litigation Funding Conference, a session dedicated to UK collective actions generated much discussion over the possibilities on the horizon for such cases, particularly those at the Competition Appeal Tribunal (CAT). Additionally, a recent judgement in the High Court suggests that we may only be in the early days of collective actions in the UK, and that even outside the CAT, the courts may be building the foundation for a regime that is willing to accommodate a wide range of collective actions.
An LFJ Conversation with Michael Kelley, Partner, Parker Poe
At last week’s European Litigation Funding Conference, a session dedicated to UK collective actions generated much discussion over the possibilities on the horizon for such cases, particularly those at the Competition Appeal Tribunal (CAT). Additionally, a recent judgement in the High Court suggests that we may only be in the early days of collective actions in the UK, and that even outside the CAT, the courts may be building the foundation for a regime that is willing to accommodate a wide range of collective actions.
A new blog post by Erso Capital looks at the potential consequences of the decision by Mr Justice Robin Knowles in the case of Commission Recovery Ltd v Marks & Clerk LLP & Anor, which allowed a representative action to move forward on behalf of a class of claimants. Erso notes that Mr Justice Knowles’ judgement suggests that where these collective actions are run by lawyers with capital from litigation funders, the claim’s representative becomes more of a ‘figurehead’ leader that is not biased towards other claimants. This allows the representative to lead the litigation in a manner that does not only benefit some claimants.
In Mr Justice Knowles’ judgement from February, he quoted Lord Leggat’s statement in Lloyd v Google that, ‘In these circumstances, there is no reason why a representative party cannot properly represent the interests of all members of the class, provided there is no true conflict of interest between them.’
Erso suggests that this judicial recognition of the important and beneficial role undertaken by lawyers and funders is an encouraging sign for the future of collective actions in England & Wales. With such judicial support, actions outside of the CAT may be able to gain significant ground, and as Mr Justice Knowles put it, ‘we are still perhaps in the foothills of the modern, flexible use of CPR 19.6’.
