In theory group litigation orders (GLOs) corral claimants into one easy-to-manage group. In practice this is often somewhat different. Claimants may have differing litigation objectives or seek different funding arrangements. This can lead to different groups of claimants obtaining separate legal representation. None of these matters need prove a problem in group litigation, provided they are managed.
Internal and external management tools
A critical management tool when representing a significant number of clients is putting a constitution in place that empowers a client committee to give instructions on behalf of all your clients, sets out how and when information is to be provided to the wider client group and, importantly, reserves certain decisions to a vote by all clients, such as whether to accept a settlement offer.
Litigators want control, and working with lawyers representing other claimant groups can be a daunting prospect as it requires a degree of compromise and a reliance on the other lawyers. However, provided the relationship is clearly agreed at the outset, working together brings benefits to your clients. These include significant savings if disbursements (such as experts' fees) are split. Also, a work-sharing arrangement may mean that your clients get more legal work for the same cost. To avoid any acrimonious fallout a protocol setting out how work is to be split and recording any understanding you reach should be considered.
Not all groups may want to participate equally. While no group should get a free ride, the facts of the case may mean that one group can take a back seat and leave the day-to-day conduct of the action to the other groups.
The RBS Rights Issue Litigation is a non-reliance action brought under s.90 of the Financial Services and Markets Act 2000. As such, all the group's claimants' claims were identical - certainly from a liability perspective. The two smaller groups of claimants by claim value elected to be 'follower groups' and did not participate in the day-to-day conduct of the GLO. They did, though, contribute a pro rata share to the 'lead' groups' legal costs . This lead/follower arrangement might not work in other actions where the more usual GLO route of 'test claimants' for advancing different fact-specific claims is more appropriate.
Costs are another key consideration. Obviously, these remain at the discretion of the court but in the RBS Rights Issue Litigation the court ruled that each claimant should bear a pro rata and several share of costs (both common costs and adverse costs). This was a departure from the default equal and several costs order. Fairness drove the court's decision: the claims are for losses on shares acquired in a rights issue and a claimant who acquired 100 shares would otherwise have borne the same adverse cost risk as a claimant who acquired 1,000,000 shares. This could have led to smaller claimants being forced to drop their claims. This logic is likely to be applied by courts in other GLOs relating to financial claims (as opposed to the more traditional medical/product liability/tax GLOs).
The true test of any arrangement is what happens when something unexpected occurs. There are known unknowns you may wish to address at the outset: what happens if a group's lawyers down tools or if some but not all groups wish to accept a settlement offer? This is a matter for each particular case and there may be good reasons why you would not wish to fetter your clients' discretion to act as they see fit. Close co-ordination and good electronic working practices with the other firms involved is beneficial and assists with continuity if a group cannot - or no longer wishes to - participate.
The absence of a widespread class action regime in England means that courts and claimants will continue to make use of GLOs. Novel funding arrangements are attracting individuals and institutions to multi-party litigation and make it more likely that GLOs will involve multiple firms. Like any large-scale litigation, good planning and experience can help avoid the various obstacles that may crop up along the way.
This article first appeared in the Lawyer.
Fiona Gillett is a Partner in the Commercial Litigation team. She specialises in domestic and international commercial disputes work including banking, commercial fraud, professional negligence, contract and tort disputes, with a focus on claims for breach of trust/fiduciary duties), as well as having expertise in shareholder and securities litigation.
Clients she has represented include banks, multinational corporations, PLCs, foreign state entities, financial institutions and individuals. Fiona's matters have often involved co-ordinating proceedings in other jurisdictions and working with investigators and forensic accountants.
Tom Otter is a Solicitor in the Commercial Litigation team. He practices across a broad spectrum of commercial litigation and dispute resolution, including banking and financial sector disputes and shareholder disputes. He has experience of both UK and international disputes.
Tom has previously been published in the Solicitors Journal, an article relating to the mis-selling of interest rate swaps called "Below the waterline".