Head of Securities Litigation Keith Thomas and senior associate Tom Otter wrote for the fifth edition of the Mass Claims Journal, published in July 2023. Their article addresses how the recent Commission Recovery and Prismall cases continue to develop the English case law on representative actions.
Recent case law developments in England suggest that it may be possible for the English Civil Procedure Rule 19.8 to be applied more broadly than has previously been countenanced, at least in recent history, with a wider interpretation being used as to what might constitute the ‘same interest’ amongst a claimant group and the potential for bringing more claims on an “opt-out” basis. This represents a potentially major change to the usual “opt-in” case management arrangements generally used to manage large actions in England and could potentially alleviate the administrative burden on claimants.
The article in Mass Claims Journal (subscription required) considers the current state of the law and evaluates whether further rule changes are required or likely. The cases discussed in depth are Commission Recovery Ltd v Marks & Clerk LLP & Anor  EWHC 398 (Comm) and Prismall v Google UK Ltd and Deepmind Technologies Ltd  EWHC 1169 (KB).
Points of discussion
Keith and Tom explain:
- the purpose and utility of Civil Procedure Rule 19.8;
- historic case law in representative actions including Emerald Supplies Ltd v British Airways Plc and Jalla & anr v Shell;
- whether Lloyd v Google represented a turning point;
- the implications of the Commission Recovery and Prismall cases, and whether they act as a sign of things to come;
- conclusions on the future of representative actions.