Understanding the Framework
The representative action procedure under CPR 19.8 offers a powerful mechanism for collective redress, allowing claims affecting numerous individuals to be tried through a single representative claimant. As established by the Supreme Court in Lloyd v Google, the only jurisdictional requirement is the ‘same interest’ test.
Lord Leggatt clarified that this requires “a common issue” where “the representative can effectively promote and protect the interests of all class members” without conflicts of interest between them. The Court of Appeal in CRL further subdivided this assessment: first, determining whether claims raise common issues, and second, confirming no relevant conflicts exist between class members.
Recent Judicial Interpretations
Recent cases have illustrated the court’s approach to CPR 19.8 applications. In Smyth, a claim seeking compensation for delayed flights was struck out because it failed to identify a common issue. The court also exercised its discretion against the claim, finding it was primarily motivated by funder interests rather than those of the claimant class.
Similarly, in Wirral Council, the Court of Appeal struck out a securities class action, determining that such claims were better suited to conventional multi-party proceedings.
Lessons for Effective Class Actions
What types of cases struggle to meet CPR 19.8 thresholds? First, those seeking compensatory damages without proposing “bifurcation” (as in Lloyd v Google) – where common issues are addressed collectively, with individual determinations reserved for subsequent proceedings. As the Supreme Court noted, the “simplest application” of representative actions involves declaratory relief claims where liability can be determined collectively.
Second, claims failing the “look and feel” test face skepticism, particularly those appearing to be funder-driven constructs. Courts must consider whether claims might be more efficiently pursued individually or through traditional multi-party procedures.
Future Applications and Opportunities
Despite these challenges, CPR 19.8 could facilitate access to justice across various causes of action. Case law suggests representative claims may be brought for declaratory relief in data breaches, misuse of private information, secret commissions, and securities litigation, provided they’re properly framed.
One emerging area for potential growth is crypto litigation. The Property (Digital Assets etc) Bill aims to establish clearer frameworks for digital asset ownership and protection. Claims involving crypto-asset mis-selling could utilize the CPR 19.8 representative procedure, allowing a single investor to act on behalf of similarly affected individuals.
In crypto-related disputes, claimants sharing the same contractual relationships with exchanges, standard terms, and form of damage could collectively seek redress under CPR 19.8. This approach offers an efficient mechanism for addressing widespread harm from a single wrongdoing affecting thousands of potential claimants.
Challenges Ahead
While CPR 19.8 has evolved significantly, several issues remain unresolved, including how individual class members obtain relief, methods for distributing financial awards, and the rights of representative claimants, funders, and lawyers over recovered amounts.
As acknowledged in CRL, we remain in the “foothills of the modern, flexible use of CPR 19.8.” Despite these challenges, representative actions will continue to feature prominently in English class action litigation, with crypto disputes potentially providing the catalyst needed to advance the regime to its next developmental phase.