8.5.3 Group Litigation order

Group actions have been used in English courts since the 1980s.1 The approach taken by the courts was pragmatic. Agreements between the parties and the court about the proceedings were made so as to guide the process. Finally, in May 2000, the Group Litigation Order (GLO) was introduced into the new Civil Procedure Rules based upon recommendation by Lord Woolf.2

The GLO is not a representative action in the sense that a representative claimant litigates on behalf of an unidentifiable number of claimants or defendants forming a particular class.3 The GLO is an opt-in collective action procedure;4 it integrates collective elements into a traditional individual adversary procedure.5

The Group Litigation Rules are laid down in the Civil Procedure Rules ("CPR") 19.10 up to and including 19.15. The court may make a Group Litigation Order (GLO), on an application by one of the parties6 or of its own motion,7 where there are or are likely to be a number of claims giving rise to GLO issues, i.e. issues common to all claims.8 A senior judge must give his consent to the order.9 The Group Litigation Order must provide for the establishment of a GLO-register in which all claims to be managed under the Group Litigation Order are to be entered.10 The advantage of this register for the defendant is the certainty of group membership. Therefore, it may be easier for the defendant to reach a settlement because he knows exactly which claimants are included. Furthermore, this register discourages claimants who have a negligible claim from opting-in.11

The Group Litigation Order must specify the GLO-issues and identify the claims to be managed as a group.12 Furthermore, the GLO must address a specific court as management court.13 A Group Litigation Order may, in relation to claims which raise one or more of the GLO issues, direct their transfer to the management court, order their stay until further order and direct their entry on the group register.14 Furthermore, the Group Litigation Order prescribes that from a specified date onwards claims which raise one or more of the GLO issues should be started in the management court and entered on the group register.15

The management court has the discretionary power to give a direction that one or more claims on the group register are to proceed as test claims.16 The outcome of the test claim will also bind the other claims in the group register and those subsequently entered into the group register.17 The binding effect of the judgment given in a claim (the test claim) on the group register in relation to one or more GLO issues is laid down in CPR 19.12. The judgment in the test claim is binding on the parties to all other claims that are on the group register at the time the judgment is given unless the court decides otherwise.18 The court may also give directions as to the extent to which its judgment is binding on the parties to any claim which is entered on the group register after the judgment was given.19 Under the GLO regime, the claims on the group register will proceed separately after the generic liability and causation have been established so as to determine on an individual basis the amount of damages awarded to the GLO claimants.20

Any party who is adversely affected by the judgment which is binding on him may seek permission to appeal the order.21 However, a party to a claim which was entered on the group register after a judgment was rendered which is binding on him, may not apply for the judgment to be set aside, varied or stayed or appeal the judgment, but he may apply to the court for an order that the judgment is not binding on him 22 This provision is necessary to guarantee that the effects of the appeal on the binding judgment are limited to the individual party that seeks appeal.

The possibility of GLO proceedings has not been used on a large scale.23 Even though the GLO was well received among English legal scholars,24 suggestions are expressed to provide more guidance in the Civil Procedure Rules on the requirement regarding the commonality of the issues.25 These scholars argue that the rules should be amended so as to make the group action more principled and predictable such that parties can better predict how courts will interpret the discretion and use the power at their disposal.26 However, this may come at the cost of removing the discretionary power of the courts that ensure adaptability of the proceedings to the needs of the individual group actions.