Kerry Underwood

GROUP LITIGATION ORDERS: GUIDANCE ON SELECTING SAMPLE CLAIMANTS

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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.

In

Lancaster and others v Peacock QC [2020] EWHC 1231 (Ch)

The Chancery Division of the High Court considered the appropriate procedure for selecting sample claimants in group litigation,  and gave guidance as to the purpose of sample claimants.

The issue arose in the context of two separate claims which overlapped on the facts and the law.

There were 123 claimants in the first claim and 33 claimants in the second, and the parties had agreed that the two cases should be case managed together and that the first claim and part of the second claim should be tried together.

The court said that the purpose of taking sample claimants is:

  • to ensure that issues common to all of the claims can be decided in such a way so as to bind all claimants;
  • to decide other factual and legal issues, where the decision will not necessarily bind other claimants but is likely to give a clear indication of the way their cases will be decided, with the expected consequence that the parties will then be able to settle the remaining claims.

The court also commented that it is not necessary to have many sample claimants to decide common issues, but a broader selection of sample claimants can generate sufficiently broad guidance for the likely disposal of all other claims, even with varied facts, while not overcomplicating or significantly adding to the cost of the trial.

Here, there were two rival proposals for selecting sample claimants.

The court preferred the claimants’ two-stage proposal which involved all 123 claimants responding to a questionnaire about their individual circumstances and claims.

From that, the parties would each select initial sample claimants, who would be required to produce certain documents relating to their answers, so as to facilitate a final selection of sample claimants by each party, to ensure that all non-common factual issues were covered.

The defendant’s proposal involved all 123 claimants answering the questionnaire and producing documents at the same time, but the court did not want to impose a more complex exercise on all 123 claimants at a time when some of them would almost inevitably be affected by the COVID-19 outbreak.

It also recognised that some questions might raise legal professional privilege issues, which might require individual advice, imposing a substantial burden on the claimants.

Written by kerryunderwood

August 7, 2020 at 2:18 pm

Posted in Uncategorized

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