Group Litigation In Environmental Damage Claims ' Growth And Challenges

• Published date: 03 October 2022
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Energy and Natural Resources, Energy Law, Environmental Law, Oil, Gas & Electricity, Trials & Appeals & Compensation
• Law Firm: Norton Rose Fulbright
• Author: Ms Holly Stebbing, Caroline May, Gill Davy, Lucy Bruce Jones, Phillippa Hook and India Furse

Group litigation in environmental damage claims - growth and challenges

Group litigation (sometimes referred to as a 'class action') is increasing in this jurisdiction and is being brought in a range of sectors, including energy and natural resources. Large scale claims for compensation for environmental damage have been brought against UK based multinational energy and mining companies for the actions of their subsidiaries in foreign jurisdictions. Such claims are complex, high value and expensive to defend and are of increasing concern to multinational companies.

This article briefly explains some of the mechanisms claimants can use to commence environmental group litigation in the English courts, and considers how recent cases have shown the challenges claimants can face when seeking to use these mechanisms to bring claims arising out of environmental damage.

Expansion of group litigation

Group litigation refers to cases where multiple claimants with claims based on common issues seek a remedy against the same defendant. Pursuing these claims on a collective basis can often improve the economic viability of the individual claims, provide efficiencies in the litigation process and enable courts to more effectively manage claims by large numbers of claimants. From the perspective of the defendant, defending multiple claims on a collective basis can be more efficient and mitigate costs.

The expansion of group litigation into claims for environmental damage has been fuelled by a number of factors including, (i) the rise in entrepreneurial claimant firms, (ii) the English courts accepting jurisdiction to hear such claims against both the foreign subsidiary and the UK parent even though the claims are closely connected to the foreign jurisdiction (see for exampleVedanta Resources Plc and Konkola Copper Mines Plc v Lungowe and Others[2019] UKSC 20 andOkpabi v Royal Dutch Shell[2021] UKSC 3), and (iii) the growth in the third party funding market and the willingness of funders to back such claims, which they see as offering attractive returns

Mechanisms for bringing environmental group litigation in the English courts

Claimants seeking to commence group litigation in the English courts can use the basic procedures and the court's case management powers in the Civil Procedure Rules (CPR). For example, a number of claimants can commence a claim together using one claim form provided all the claims "can be conveniently disposed of in the same proceedings". Another option is for the court to consolidate...