Kerry Underwood

REPRESENTATIVE ACTIONS AND GROUP LITIGATION ORDERS

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

 

Google Granted Permission to Appeal Representative Data Protection Class Action for Compensation

In

Richard Lloyd v Google LLC [2019] EWCA Civ 1599

the Supreme Court has granted Google LLC permission to appeal against the Court of Appeal’s order, which granted Mr Lloyd, a representative claimant, permission to serve proceedings outside of the jurisdiction on Google in the US, in a class action seeking compensation for  breach of section 4(4) of the Data Protection Act 1998.

The breach is said to have occurred between 2011 and 2012 in connection with Google’s use of its “Safari Workaround” technology by which it allegedly used its “DoubleClick cookie” technology to track the online behaviour of millions of Apple iPhone users in the UK without their knowledge or consent and then sold the accumulated data to advertisers, contrary to its privacy policy.

The claim is based solely on a contravention of the Data Protection Act 1998 and Mr Lloyd is alleging no financial loss or distress but instead, infringement of data protection rights, the commission of a wrong and loss of control over personal data.

Mr Lloyd is the only named claimant and is relying on an “opt-out” style of class action involving the meaning of “same interest” under Civil Procedure Rule Part 19.6(1).

Mr Lloyd is seeking a uniform amount of damages on behalf of each member of the class and while each amount will be small, the total bill for damages could amount to millions of pounds.

The examination of the right to compensation under the Data Protection Act 1998 will still be relevant for those seeking to recover compensation under Article 82 of the General Data Protection Regulation ((EU) 2016/679) as the principles are largely unchanged.

Recital 85 of the General Data Protection Regulation specifically cites “loss of control” over personal data as a type of damage.

 

Applicable Principles for Competing Firms of Claimants’ Solicitors in Group Litigation

In

Lungowe and others v Vedanta and another [2020] EWHC 749 (TCC)

the first defendant applied for a Group Litigation Order in respect of three sets of proceedings brought against itself and the second defendant.

The claimants in two of the sets of proceedings were represented by a well-known firm of solicitors and in the other proceedings by another firm of solicitors, but the subject matter and the defendants were the same in all of the proceedings.

The claimant firms submitted that, if a Group Litigation Order was made, it ought to keep the two firms’ “strands” separate.

The court considered that their submissions in this regard were underpinned by the commercial advantage to each firm of keeping the interests of their own claimants separate from the other firm.

However, this was not a good reason, it should not influence sensible case management and was contrary to the ethos of group litigation.

 

38. From the provisions of CPR Part 19, PD19 and these authorities, I derive the following principles:

1. Parties to litigation are generally entitled to be represented by the solicitors of their choice, and to have their case argued by their own representatives. However, in group litigation, that entitlement is qualified. In order properly to achieve efficient conduct and case management of the group litigation, that basic right takes second place to the advancement of the rights of the cohort. This is achieved through the role of the lead solicitor, and the use of counsel chosen and instructed by the lead solicitor.

2. The relationship between the lead solicitor and other firms, whether on a steering committee or otherwise, must be carefully defined in writing. In the absence of agreement, or in the event of deficiency in that agreement, the court will become involved, but this will occur only rarely. It is a reserve power and therefore rarely will it be deployed.

3.In group litigation, all the claimants in that group litigation who will be represented by a lead solicitor (or, as in the British Steel Group Litigation, two firms jointly acting as lead solicitor) are only entitled to instruct one counsel team (although that may have, of course, multiple members). Different groups of claimants are not entitled to instruct different groups of counsel.

39. Some explanation can be provided to each of the above. So far as principle (1) is concerned, the lead solicitor is not being instructed by the court to act against its wishes for all the other claimants, including those for whom it does not wish to act, who are (or because they are) represented by another firm. The lead solicitor is acting as precisely that – the lead solicitor in group litigation. They will be the contact point for the court and for the other parties in terms of service and communication. They will instruct counsel. The degree of consultation and liaison with other firms also instructed will be a matter of agreement between all the firms. It is to be hoped that rarely would there be disagreements, but if there are, the court has the reserve power in principle (2).

40. Principle (2) is self-explanatory. There was no written agreement available at the hearing before me on 27 February 2020, although each of Leigh Day and Hausfeld argued there was. This “agreement” consisted of a paragraph in a draft order that effectively stated Leigh Day would act for the Leigh Day claimants, and Hausfeld would act for the Hausfeld claimants. That is not the type of agreement envisaged by PD19B 3.3 and it is not the type of agreement that would be acceptable. Since the detailed GLO issues were drafted by me and the outstanding controversies on the wording of the GLO itself were resolved between the hearing on 27 February 2020 and the date of this judgment, a more detailed agreement was lodged. I will refrain from passing any comment upon it, positive or negative, as that is a matter for the Managing Judge once appointed.

41. Principle (3) is, in my judgment, so obvious that it does not appear to have been stated anywhere expressly before. However, it now seems necessary to do so, given some of the submissions made before me on 27 February 2020. Given group litigation involves resolving GLO issues, and given by definition GLO issues are all common or related issues of fact and/or law, there should never be any need for separate counsel representing separate groups of claimants. The claimants will have, broadly, co-existence of interest in the same issues. After the GLO Issues are all resolved, it will be a matter for the Managing Judge how (say) individual quantum claims are each to be litigated. Depending upon the subject matter of the group litigation, there will be different ways of achieving this. But certainly so far as resolving the GLO Issues themselves is concerned, no court should be faced with different counsel teams acting for the same cohort, save in the very rarest of circumstances which it is not possible fully to envisage. Certainly, no such rare circumstances exist in this litigation.

42. Finally, the court has broad case management powers under the CPR generally, and if anything a Managing Judge in group litigation has even wider powers under CPR Part 19. Group litigation presents particular challenges not only to the court, but also to the parties. Co-operation is an integral part of CPR Part 1.4(2)(a), and the parties have an express duty under CPR Part 1.3 to assist the court to further the over-riding objective. Co-operation in group litigation is of particular importance. The importance of this cannot be over-stated.

Written by kerryunderwood

April 6, 2020 at 10:55 am

Posted in Uncategorized

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