Key Takeaways
- Recent developments have made England a more attractive jurisdiction for multi-claimant litigation, including mass tort litigation brought under Group Litigation Orders.
- U.S. plaintiffs’ lawyers are partnering with English attorneys and actively recruiting plaintiffs to bring claims in the English Courts which mirror US mass torts, raising the risk of more English multi-claimant litigation.
- Companies should be proactive now about managing risk and understanding the potential scope of English mass tort litigation.
Introduction
Recent court decisions have signaled the English courts’ willingness to embrace multi-claimant litigation and to broaden the types of questions decided on a collective basis. These developments have led UK-based plaintiffs’ lawyers to expand mass tort filings, including doing so in partnership with U.S. plaintiffs’ lawyers who are actively advertising in England. Below, we provide an overview of multi-claimant litigation in England, highlight some of the factors that may lead to its increase and discuss steps that companies operating in the English market can take now to manage potential exposure.
Overview of Multi-Claimant Litigation in England
There are three primary mechanisms for bringing collective actions before an English court: representative actions, group litigation orders (“GLOs”), and collective actions before the Competition Appeal Tribunal (“CAT”).
Representative actions, in their current form, and GLOs are products of the general Civil Procedure Rules (“CPR”). Representative actions originated in the common law and permit a representative claimant or defendant with the “same interest” in a claim to represent that interest on behalf of a class.1 Although coordination of collective claims has been available since the 1980s, this procedure was codified when GLOs were introduced to the CPR in 2000. GLOs “provide for the case management of claims which give rise to common or related issues of fact or law.”2 Parties can apply for a GLO or the court can issue one on its own initiative. GLOs proceed on an opt-in basis, and a single court issues orders addressing the common issues to avoid inconsistent rulings. GLOs provide a mechanism to manage multi-claimant actions, offering greater flexibility in the types of claims aggregated and how they are managed.
The CAT is a specialized tribunal authorized by statute to hear collective actions for breach of competition law. Collective actions before the CAT were historically raised on an opt-in basis,3 but changes introduced in 2015 have allowed CAT actions to proceed on an opt-out basis as well.4
Factors That May Precipitate an Increase in Multi-Claimant Litigation in England
Over the last several years, there are signs of increased use in England of multi-claimant actions, many in areas familiar to MDL practitioners in the United States, such as auto emissions and medical devices.5 These increases appear to be driven by the factors discussed below.
Recent Judicial Decisions Facilitate Expansion of Multi-Claimant Litigation
In recent years, courts have allowed creative multi-claimant pleadings across subject matters, encouraging the use of GLOs and the CAT. Two 2021 decisions are illustrative.
Lloyd v Google involved an opt-out representative action concerning use of consumer data. The UK Supreme Court held that the case required an individualized determination of facts and damages which plaintiffs could not escape by seeking minimum, uniform damages across the class. Though the Court noted that representative actions are appropriate for seeking declaratory relief on questions of liability and where uniform damages apply, it appeared to indicate a preference for GLOs outside these situations.6 The Court noted the efficiency of multi-claimant actions, emphasizing that “[t]he mass production of goods and mass provision of services have had the result that, when legally culpable conduct occurs, a very large group of people, sometimes numbering in the millions, may be affected.”7 Consistent with the ruling in Lloyd, English courts are becoming more active in managing GLOs and using them to generate efficiencies.
In Merricks v Mastercard, the UK Supreme Court affirmed a lower threshold for bringing collective actions before the CAT. The majority held that such claims may proceed where collective action is more “suitable” than litigating the claims individually.8 Considering the burden of individualized litigation, the Court noted that aggregation “radically dissolves” certain burdens “both for the court and for all the parties.”9
Litigation Funding
A previous deterrent to multi-claimant litigation was that claimants in England had to self fund the costs of participating. However, the use of litigation funding has increased substantially over the last decade,10 thereby reducing barriers to entry. In the past year alone, litigation funding has grown in England and Wales by over 10%.11 That said, English courts impose the “loser pays” costs regime, under which the losing party bears the cost of the victor as well as their own. The advent of “After the Event” (“ATE”) adverse costs insurance has gone some way toward reducing that hurdle, but the market for ATE insurance remains compact and the insurance is expensive.
Growth in U.S./English Firms Investigating Potential GLOs
In recent years, U.S. plaintiffs’ lawyers have signaled a growing interest in partnering with English firms. English plaintiffs’ firms, in collaboration with U.S. attorneys, are actively recruiting English claimants across sectors that have been involved in recent U.S. MDLs, including data breach, pollution, competition, and personal injury. For example, U.S. plaintiffs’ lawyers who prevailed in talc personal injury claims are advertising for similar claimants in England.12
Possibility of Importing U.S. Evidence
With the growth in U.S./English partnerships for bringing multi-claimant actions in England, there may be an increased interest in leveraging U.S. discovery for copy-cat English claims. The larger mass torts become in the United States, the more likely they are to feed into related multi-claimant actions in England. There are already examples of U.S. mass torts preceding similar claims in England. For example, a DePuy hip implant product liability MDL was formed in the United States in 2010.13 In 2014, a parallel GLO formed in England addressing whether a defect in DePuy’s product caused harm.14 While the outcome of the DePuy GLO ultimately favored the defense, the litigation in England proceeded for four years and culminated in a 14-week trial, comparable to a U.S. MDL.
Potential for Increased Damages
Damage awards in England have historically been vastly lower than those in the United States, in part because tort claims are tried by a judge, rather than a jury, and are therefore less likely to result in runaway verdicts. Punitive damages are rarely awarded in England but are available in limited cases, typically where a defendant has calculated that the financial gain from the wrongdoing is likely to exceed any damages payable to the claimant who suffered from his negligence.15 In those cases where punitive damages have been successfully sought and awarded in recent years, the uplift is usually a percentage of the claimed amount, not a multiple.16 In U.S. product liability trials, punitive damages are regularly awarded based on findings of willful misconduct or other heightened mental state beyond negligence, and punitive damages claims are regularly multiples of compensatory damages. With the growth in U.S./English partnerships to bring multi-claimant actions in England, U.S. influences may lead plaintiffs to seek punitive damages in more cases which could shift the dial.
Practical Considerations for Mitigating Litigation Risks
As the landscape continues to change, we expect to see more multi-claimant actions in England. Companies should prepare now.
Develop or Strengthen Internal Protocols
English litigation, like any other, is subject to the ever-present risk that company documents may be taken out of context or misinterpreted to suggest the existence of a safety concern or company behavior that could support a finding of punitive damages. Such risks may be mitigated through routine employee training regarding the need to communicate clearly, professionally, and with full context. As the use of internal company messaging platforms increases, companies should emphasize the need for professionalism on such platforms and consider having protocols.
Understand How to Scope Potential Exposure
For companies that participate in both the U.S. and English markets, an increase in English multi-claimant litigation increases the scope of existing product liability exposure. Prior experience suggests that cases will often be brought in the United States before similar GLOs are sought in England, so an assessment of a U.S. litigation’s anticipated timeline may need to be extended to account for potential English litigation. In England, product liability and personal injury negligence claims carry a three-year statute of limitations,17 which generally runs from the date the plaintiff becomes aware of the claim. Personal injury claims under the Consumer Protection Act are also subject to ten-year “longstop” statute of limitations, which bars claims brought ten years after the product entered the market.18 Plaintiffs may stagger their U.S. and English litigations by delaying English advertising and recruitment campaigns until after U.S. litigation has proceeded through discovery. Attempts at “global resolution” of U.S. claims may be frustrated by English follow-on cases.
Play to Advantages of Combating Mass Tort Litigation in England Versus the United States
While English mass tort litigation may increase, key differences in the English system make English actions somewhat less daunting than a U.S. MDL.
First, tort claims in England are decided by a judge, not a jury, so the risk of a runaway verdict is lower. The same judge who manages the litigation before trial will often decide the facts at trial and applies the law.
Second, expert witnesses in England are independent and owe their duties to the court. They are not permitted to be partisan or to advocate on behalf of the appointing party. The court must consent to the use of experts, as well as the relevant disciplines and questions to be addressed by experts. Under English rules, the court may require the parties to appoint a single independent expert. As a result, expert witnesses in England may be less likely to take positions that are extreme or contrary to prevailing scientific consensus than are experts in the United States.
Third, England’s loser-pays fee shifting structure may temper the growth of litigation funding in England. Plaintiffs’ groups must consider their ability to cover shifted fees, usually through ATE insurance or fund raising in advance. Alternatively, in some circumstances, Defendants can seek security for costs to be paid to the court. In the context of GLOs, fees may be shifted proportionally, spreading the cost of multi-claimant litigation across the individual claimants. While this GLO-specific provision is helpful to UK plaintiffs’ attorneys, the loser-pays costs regime nevertheless represents a cost of litigation on the plaintiffs’ side that does not exist in the United States. The risk of fee shifting and the absence of extremely high jury verdicts have historically made England a less attractive market for litigation funding than the United States. That said, exporting litigation and evidence from the United States reduces the investment required by plaintiffs’ attorneys and therefore may make the risk of fee-shifting worth the potential recovery, particularly if U.S. plaintiffs’ attorneys enjoyed success in related U.S. litigation.
Open Questions
It remains to be seen whether the growth of multi-claimant actions in England will continue, and if so, what they will look like.
GLO Management Style and Procedures
Like courts overseeing MDLs in the United States, English courts have wide discretion in their management of GLOs and their ability to tailor the proceedings for the efficient determination of common issues. As such, procedures may vary between judges and from case to case. Because the growth of GLOs is relatively new and quickly evolving, there may be insufficient information from which to predict the management style and leanings of a judge in a given GLO.
Ultimate Outlook for English Mass Torts and GLOs
To date, the English courts’ increasing support for multi-claimant litigation mechanisms has been premised on the efficiency of determining similar cases together. However, mass tort actions often spur aggressive claimant recruitment and increased case filings, a phenomenon colloquially described in the United States with the phrase, “if you build it, they will come.” The management of numerous individually filed claims under a GLO may present a distinct set of administrative and efficiency challenges for English courts. It is not clear whether a dramatic rise in case filings would temper the courts’ enthusiasm for multi-claimant actions.
We will continue to follow developments in multi-claimant litigation.
1 CPR 19.6 et seq. See also Lloyd v Google LLC [2021] UKSC 50.
2 CPR 19.1.
3 The Competition Appeal Tribunal Rules 2003 (S.I. 2003/1372), Rules 32–33.
4 The Competition Appeal Tribunal Rules 2015 (S.I. 2015/1648), Rules 80–82.
5 List of group litigation orders, HM Courts & Tribunals Service, Updated 10 Nov. 2022, https://www.gov.uk/government/publications/group-litigation-orders/list-of-group-litigation-orders.
6 See Lloyd v Google LLC [2021] UKSC 50.
7 Id. ¶ 67.
8 Mastercard Inc. and others (Appellants) v Walter Hugh Merricks CBE (Respondent) [2020] UKSC 51.
9 Id. ¶ 57.
10 In review: third party litigation funding in United Kingdom (England & Wales), The Third Party Litigation Funding Law Review, Lexology, 8 Dec. 2022, https://www.lexology.com/indepth/the-third-party-litigation-funding-law-review/united-kingdom-england--wales.
11 Id.
12 Christian Gooden, ‘Talcum powder cancer’ lawyer Mark Lanier targets UK, The Times, Nov. 10, 2022, https://www.thetimes.co.uk/article/talcum-powder-cancer-lawyer-mark-lanier-targets-uk-9cqftk0v0.
13 MDL Statistics Report – Docket Type Summary, United States Judicial Panel on Multidistrict Litigation, Dec. 15, 2022, https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_MDL_Type-December-15-2022.pdf.
14 List of group litigation orders, HM Courts & Tribunals Service, Updated 10 Nov. 2022, https://www.gov.uk/government/publications/group-litigation-orders/list-of-group-litigation-orders.
15 Rookes v Barnard [1964] AC 1129 (HL); Goudkamp, James & Katsampouka, Eleni “An Empirical Study of Punitive Damages” (Spring 2018) Oxford Journal of Legal Studies, 38:90–122, https://doi.org/10.1093/ojls/gqx013.
16 See Goudkamp & Katsampouka, 38:90–122 at 129.
17 Consumer Protection Act 1987 (UK PGA 1987 c.43 sched. 1) 11A(4); Limitation Act 1980 (UK PGA 1980 c.58) 11(5).
18 Consumer Protection Act 1987 (UK PGA 1987 c.43 sched. 1) 11A(3) (imposing a ten-year longstop statute of limitations on personal injury claims brought under the Consumer Protection Act, beginning from the date the product first entered circulation); Limitation Act 1980 (UK PGA 1980 c.58) 11(5).
