Group Litigation: Managing Collective Actions

• Published date: 16 June 2020
• Author: Mr James Whitaker, Stuart Pickford, Miles Robinson and Warsha Kalé
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Class Actions, Trials & Appeals & Compensation
• Law Firm: Mayer Brown

The High Court has emphasised the need for a robust approach to case management as collective actions continue to grow. Stuart Pickford, James Whitaker, Miles Robinson and Warsha Kalé look at a recent case.

Group litigation has been part of the UK litigation landscape for twenty years. In recent years, however, a number of contributory factors have fuelled the growth of claims brought on behalf of large groups of claimants, making this sort of litigation an increasing risk for large businesses and their insurers. With their focus on ensuring that cases can be managed efficiently, the courts have been faced with the challenge of balancing the interests of groups of claimants with those of defendants faced with multiple claims with a substantial aggregate value. It is in that context that a recent High Court decision should be of interest.

Background

We have reported in previous alerts on the unsuccessful challenge to the jurisdiction of the English courts to hear claims arising from alleged personal injury and environmental damage which is said to have been caused by operations at a Zambian mine operated by Konkola Copper Mines plc (KCM).

The claims were brought on behalf of a large number of Zambian residents against KCM and its English parent, Vedanta Resources plc, with the latter being used as what is often called an "anchor defendant" to engage the jurisdiction of the English courts. The jurisdiction challenge was ultimately dismissed by the Supreme Court ([2019] UKSC 20) and the litigation is now continuing in England.

In the latest decision in Lungowe & Ors v Vedanta Resources plc & Anor [2020] EWHC 749 (TCC) the High Court has turned its attention to how proceedings involving more than 3,700 individual claimants across different claimant groups can be managed efficiently.

Development of collective litigation

To put the Lungowe litigation into context, recent years have seen significant growth in the number of law firms in the UK that are actively targeting collective claims, including US plaintiff class action firms who have seen opportunities in the UK market.

The subject-matter of these claims has varied from investor claims based on allegedly misleading listing particulars, public comments or filings, through to data breach, competition, health and safety, and consumer claims. There have also been several overseas tort claims, brought before the English courts by advancing a claim against an English parent company as "anchor defendant". Indeed, the Supreme Court decision in Lungowe makes it clear that it is permissible for claims to be brought in this way in certain circumstances.

Unlike jurisdictions...