In David Hammon and Others v. University College London[1], the High Court of Justice found that the threshold requirements for making a group litigation order (GLO) had been met but decided that the court’s general case management powers would be more appropriate to manage the claims, rather than a GLO.
The case emphasises important questions about the future of GLOs as a mechanism for group litigation in a landscape where class actions are on the rise.
What is a GLO?
A GLO is a case management mechanism for multiple claims which give rise to common or related issues of fact and law (known as the “GLO issues”). As set out in Civil Procedure Rule (CPR) 19.22, the court has discretion to grant a GLO where there are likely to be a number of claims giving rise to GLO issues. Determination of those issues is binding on all registered claimants.
In his final Access to Justice report in 1996, Lord Woolf described the GLO procedure as leading to greater access to justice, as well as considerable savings in time and cost in disposing of large numbers of claims in a single set of proceedings, avoiding the proliferation of individual claims in different courts and the risk of inconsistent judgement.
Hammon v. UCL claim
The claim against UCL was brought on behalf of students at the university between 2017 and 2022. The claimants are alleging that UCL breached its contractual obligations to provide in-person, campus-based tuition and/or access to facilities during the relevant years affected by the COVID-19 pandemic and/or by industrial action.
The claimants are claiming performance-based damages based on the difference between the market value of the services promised and the services provided, as well as damages for distress and disappointment. UCL defends the claims in full.
GLO application
The claimants argued that there was sufficient commonality of factual and legal issues for a GLO to be made, and that this would be the best way to manage the claims given the procedure would provide:
- Access to justice.
- An efficient and proportionate method of resolving the claims.
- An effective means of resolving common issues whilst still enabling claimant-specific issues to be determined.
In particular, the claimants asserted that the proposed GLO issues captured – at a high level – the issues that will need to be determined for all claimants or key cohorts of claimants.
The claimants also submitted that a GLO would provide tangible benefits to UCL, in particular the ‘funnelling of all claims into a single proceeding which is cost effective for the defendant to deal with’ and the ‘existence of a cut-off date which gives the defendant certainty about the size and shape of the claimant body’.
UCL argued that a GLO was inappropriate and unnecessary, and that the court could effectively manage the claims under its existing case management powers, with the first stage being the trial of a set of properly particularised test cases. UCL made a number further submissions in this regard, including that the generic pleadings meant that the individual claimants had failed to sufficiently particularise their claims and that the abstract nature of the claimants’ proposed GLO issues masked the individual fact-sensitive issues on liability and quantum raised by their claims. This is a common theme of attempted collective actions.
Court’s decision on GLO application
The court accepted that the claims gave rise to common issues of fact or law and, as such, the threshold requirements for making a GLO had been met.
However, Senior Master Cook concluded that it would not be appropriate to make a GLO in this case and that the litigation would be ‘best resolved by the court’s existing case management powers’ under CPR 3.1. He did not consider that a GLO would ‘promote fairness, save costs or allow the claims to be dealt with in a timely and efficient manner’, noting that ‘Claimant specific issues relating to individual damages claims could never have been resolved by the trial of generic GLO issues’. In his view, the GLO procedure would delay the progress of the litigation – and add unnecessary cost and expense.
Acknowledging the departure from Lord Woolf’s views of the GLO procedure, Senior Master Cook emphasised the importance of considering alternative forms of case management, noting that ultimately, the decision is one of case management, and it will be case- and fact-specific.
The court’s general powers of case management are set out in CPR 3.1. Given how wide-ranging and expansive they are, it is easy to understand why Senior Master Cook is of the view that ‘with cooperation and creativity the court’s standard case management powers can be used to replicate almost any feature of a GLO’.
Future of GLOs
This decision is the latest in a series of decisions where the court has refused to make a GLO in favour of exercising its broad case management powers.[2] This trend may be indicative of a shift in the judiciary’s view towards the GLO mechanism being outdated and not the most time and cost-effective way of managing a case. This is reflected in Senior Master Cook’s remarks that the ‘world is a now very different place to that which existed at the time of Lord Woolf’s report’ – which recommended the GLO procedure as a step forward in managing ‘the unmanageable’ – in particular, ‘technological and computing developments have revolutionised the way in which lawyers and judges work and manage cases’.
Whilst the courts’ creative application of their general case management powers may allow for greater flexibility to effectively manage individual cases, such an individualised approach will mean less certainty as to how group actions will be managed. This lack of certainty may make it more difficult for claimant law firms to manage cases, book build and persuade litigation funders to provide funding.
[1] [2024] EWHC 1744 (KB)
[2] See Stephen Beck & Ors v. The Police Federation of England and Wales QB-2022-001873, Bennett & Others v. Equifax [2022] EWHC 1487 (QB), and Edward Moon & Ors v. Link Fund Solutions [2022] EWHC 3344 (Ch).
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