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United Kingdom

Author: Vincent Smith

I. Overview

Group litigation and the need for its reform have received a lot of attention in the UK in the past few years. The UK already has several types of procedural mechanisms available to multiple claimants and they are all operating on an opt-in basis. In this sense, claimants must elect to join the proceedings in order to be considered a member of the class and to be entitled to any damages awarded. This is in clear contrast to the proposals coming from some reform initiatives, where the opt-out system is taken into account as a means of getting a more effective system of collective redress.

Amongst those various procedural mechanisms we have to cite Group litigation orders (GLOs), representative actions and even test cases. Firstly, GLOs were introduced in the CPR in 1999, as part of the new English procedural rules. A GLO is made under CPR 19 for claims which 'give rise to common or related issues of fact or law' (for further details, see below). Secondly, representative actions may be made by or against one or more persons who have the 'same interest' in a claim (CPR 19.6). Representative actions are also available under competition law rules: section 47 B of the Competition Act 1998 allows representative actions to be brought before the Competition Appeal Tribunal (CAT) by a 'specified body' on behalf of consumers in claims for damages for breach of UK (or EU) competition law (for further details, see below). Thirdly, test cases would be also feasible, as far as the CPR provide the courts with powers to manage litigation in cases where there are a large number of claims raising the same common factual or legal issues.

There have been several initiatives in the UK in order to promote reform in collective litigation mechanisms. We have to highlight Lord Justice Jackson's review of civil litigation costs, June 2008 and its final report published on January 2010- including recommendations on costs in collective actions; the CJC Report in December 2008, including a draft revision to the CPR and a Draft Collective Proceedings Act; the OFT's Recommendations to the Government in November 2007; and BIS's consultations on consumer protection legislation in 2005 and 2006. From a parliamentary point of view, in 2010 the Finance Bill proposed the introduction of opt-in and opt-out collective actions. However this initiative was dropped in light of the 2010 General elections.

Special consideration must be given to the field of Competition law. In April 2012, the UK's Department for Business Innovation and Skills commenced a consultation on proposals aimed at complementing the public competition law reforms with a stronger private actions system. The proposals are aimed at increasing growth, through the empowerment of small businesses to tackle anti-competitive behaviour and at promoting fairness, by enabling consumers and businesses who have suffered loss due to anti-competitive behaviour to obtain redress. The proposals are:

1)Allowing the Competition Appeal Tribunal (CAT) to hear more kinds of competition cases and granting it additional powers to allow SMEs to quickly and cheaply challenge behaviour that is restricting their ability to grow.

2)Introducing an opt-out collective actions regime for competition law, which would enable consumers and businesses to collectively bring a case to obtain redress for shared losses.

3)Promoting Alternative Dispute Resolution (ADR) to ensure that the courts are the option of last resort.

4)Ensuring private actions complement the public enforcement regime, in particular by protecting the incentives provided for companies to whistle-blow on cartels.

Responses were requested by 24th July 2012.

To sum up, in the UK not only are there several procedural tools allowing collective redress mechanisms but there is a growing concern in respect of the need for reform in order to improve the current collective litigation system.