Disputes Yearbook 2025:
Class actions

High-profile group actions progressing through the courts

Group actions have continued to be a prominent feature of the litigation landscape, with a significant proportion of the major commercial cases in the English courts now being pursued on a collective basis – whether with or without a group litigation order (GLO). 

One of the largest cases currently progressing through the courts is the diesel emissions litigation, in which claims by around a million and a half claimants are being litigated under 13 separate GLOs, all collectively managed under the umbrella of the Pan NOx Emissions Group Litigation. There are also significant claims being pursued against major international corporations relating, for example, to allegedly false or misleading statements to the market, defective products, or environmental damage in foreign jurisdictions. 

Continued uncertainty on potential for opt-out representative actions

This year saw various decisions refusing permission for claims to be brought under the CPR 19.8 representative action procedure, which allows a claim to be brought on behalf of those who have the "same interest" in it. These included claims for misuse of private information (Data class actions: Court of Appeal upholds decision blocking "opt-out" representative action for misuse of private information) and copyright infringement (High Court refuses to allow representative action to be brought on behalf of copyright owners in IP case).

To date, however, there has not been a case looking at the key questions of whether, under CPR 19.8, compensation can be awarded on a collective basis and amounts deducted to pay claimant law firms and funders – which would have a significant impact on the commercial viability of representative actions for claimants and funders. Those questions were due to be considered at a preliminary issues hearing in January 2025, in a case relating to secret commissions, but the case settled late last year: Representative actions under CPR 19.8: Settlement means key questions on funding and damages will have to wait. 

English courts accept jurisdiction in transnational tort claims

Two cases over the past year have demonstrated that, while the English court has a discretion to decline jurisdiction over UK-based defendants on the basis that another forum is more appropriate (in contrast to the pre-Brexit position, when there was no such discretion), it will not exercise that discretion if the claimants establish a real risk that they would not obtain substantial justice in the alternative forum:

• The Court of Appeal rejected a jurisdiction challenge in relation to claims brought by migrant workers against English and Malaysian companies in the Dyson group regarding alleged abusive employment practices by one of Dyson's suppliers in Malaysia. The fact that there was a serious risk that the claimants would be unable to fund their claims in Malaysia, together with various factors connecting the dispute to England, meant that England was clearly the appropriate forum: Supply chain risk: Court of Appeal finds claims against Dyson relating to actions of Malaysian manufacturer should proceed in England.
• The High Court rejected a jurisdiction challenge by two UK-domiciled companies in relation to alleged damage as a result of pollution from a mine operated by their Brazilian subsidiary. The court held that, while Brazil had a closer connection to the case, there was a real risk that the claimants would not obtain substantial justice there due to funding difficulties: High Court allows case to proceed against defendant companies domiciled in England despite claims having more real and substantial connection with Brazil.

Significant decisions in collective proceedings in the Competition Appeal Tribunal

There have been some significant decisions under the collective proceedings order regime in the Competition Appeal Tribunal (CAT). In December last year, in the first opt-out collective competition claim to proceed to trial, the CAT unanimously dismissed a claim for over £1bn in damages on behalf of over 3.7 million BT customers, having concluded that there was no abuse of dominance: Competition class actions: First case to go to trial ends in failure. Permission to appeal was refused. Two other cases have since gone to trial and received a judgment on the merits. The first, against train operators relating to boundary fares, was dismissed. However, the second delivered the first substantive success for claimants under the regime, with the CAT awarding some £1.5 billion in damages to a class of some 36 million users of Apple devices. 

Opt-out competition class actions under the spotlight

The Department for Business and Trade issued a call for evidence on the operation and impact of the opt-out collective actions regime in the Competition Appeal Tribunal, a decade on from its introduction. It asked a broad range of questions on issues such as access to the regime and how cases are funded, the scope of the regime and the threshold for certification, the use of ADR and how damages should be distributed. The consultation was open until mid-October and the government's response is awaited.

Separately, the Supreme Court is due to rule on whether the Court of Appeal was wrong to find that claims relating to foreign exchange spot trading should proceed on an opt-out basis, overturning the decision of the Competition Appeal Tribunal.