Partner Keith Thomas attended and spoke at a conference hosted by US firm MoloLamken on cross-border UK/US litigation at the historic Parliament Chamber in Inner Temple, London on 3 July 2018.
The panel, consisting of Keith Thomas and John Mathias of Jenner & Block and moderated by Simon Hart of RPC, discussed current developments in collective actions from a UK and US perspective.
In the US, class actions allow courts to resolve claims of all class members in a single proceeding, unless individual class members opt out of the class. Keith Thomas said that opt-out proceedings had only recently been introduced in the UK. At present, these were limited to consumer claims regarding anti-competitive behaviour.
The Consumer Rights Act 2015 allows for opt-out collective proceedings to be brought before the Competition Appeal Tribunal (the “CAT”), and these can only proceed if the CAT makes a collective proceedings order (“CPO”). There have been two applications for a CPO to date which, even if unsuccessful, have provided us with much greater clarity as to how future applications should be made.
Keith further discussed the increasing popularity of group litigation orders (“GLOs”) in securities, tax and consumer litigations in the UK, a mechanism that enables the court to manage multiple claims in a coordinated way. He outlined that the UK courts place a high importance on who the lead solicitors in such collective actions will be. Solicitors with relevant experience and particular specialism in collective actions are normally considered to be the more appropriate choice.
It was a lively and interesting discussion with several questions raised from the floor about whether UK collective litigation is moving closer to the US class model. There certainly are similarities in the rules governing the recently introduced CAT regime and those governing US class actions. We can only wait and see whether the UK will move more towards an opt-out class action based system which has proved more effective at providing collective redress than the procedures available to date.
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