Episode 122 – Europe Litigation: Mass Actions at a Global Scale

Th- this is a question for both of you really, but w- when we talk about class actions In, in the EU, what do we mean when we talk about that in both a colloquial sense or, and a sort of technical legal sense?

I think it varies from jurisdiction to jurisdiction.

If you think about mass actions, then in Europe, I think the Netherlands have the most advanced system for administering class actions, which is why many plaintiff firms like to go to the Netherlands.

And then there's other countries where, because of certain specifics of the local regime, class actions come more in the form of mass actions.

Like my own jurisdiction, Germany, we have mass actions just coming in the form of thousands of thousands of claims, mainly because we have legal cost insurance that will give a consumer access to a lawyer and pay the fees.

And so the lawyers are incentivized not to join one big action, but rather each bring their own action as an individual case.

And obviously, it makes a big difference whether you're defending 10,000 individual cases or one case with 10,000 claimants.

And have we already seen the EU directive changing that in, in Germany?

Interestingly, we have not.

I think that was the intention when the regime was drafted, and I think the whole Dieselgate scandal was one, if not the trigger point for that.

But what we have not seen is plaintiffs' firms completely pivoting to mass actions and abandoning individual actions.

They are doing both now, and that sort of amplifies the risk for companies because you have to deal with mass actions at scale and a sort of dominating class action in the sense of that it may shape the law in a certain area.

Interesting.

And, and Nel, what about in the UK? 'Cause my understanding really is that when we technically talk about class actions, we are talking about representative actions really, but-

Yeah

... what do you understand is meant by the term?

Yeah, so I think in the UK we tend to use the term quite loosely, and certainly when I speak to people in the US about class actions, I often get the answer, "That's not a class action," because actually the only opt-out regime we have is the one in the Competition Appeal Tribunal.

So I think we mean m- more broadly mass group litigation.

So we have group litigations under CPR 19.11, which allow for cases which give rise to common issues to be managed together.

Uh, we have representative actions under CPR 19.8, which actually is the only sort of opt-out mechanism that we have outside the CAT, and that's where claimants can bring a mass claim where they have the same interest, but it's been quite narrowly interpreted.

And then we just have joint claims by multiple claimants using an omnibus claim form, which has been quite broadly interpreted as being able to be used where claims can be conveniently disposed of in the same proceedings.

And there was actually a very recent case on that, I think, a week or two ago, in Angel and Blackhorse, where it confirmed that that is a very broad test as to what can be dealt with conveniently together.

So we're really talking about all those sorts of things, just meaning it's not just a standard one or two claimants against one or two defendants, but something much bigger.

Th- this is a question for both of you really, but w- when we talk about class actions In, in the EU, what do we mean when we talk about that in both a colloquial sense or, and a sort of technical legal sense?

I think it varies from jurisdiction to jurisdiction.

If you think about mass actions, then in Europe, I think the Netherlands have the most advanced system for administering class actions, which is why many plaintiff firms like to go to the Netherlands.

And then there's other countries where, because of certain specifics of the local regime, class actions come more in the form of mass actions.

Like my own jurisdiction, Germany, we have mass actions just coming in the form of thousands of thousands of claims, mainly because we have legal cost insurance that will give a consumer access to a lawyer and pay the fees.

And so the lawyers are incentivized not to join one big action, but rather each bring their own action as an individual case.

And obviously, it makes a big difference whether you're defending 10,000 individual cases or one case with 10,000 claimants.

And have we already seen the EU directive changing that in, in Germany?

Interestingly, we have not.

I think that was the intention when the regime was drafted, and I think the whole Dieselgate scandal was one, if not the trigger point for that.

But what we have not seen is plaintiffs' firms completely pivoting to mass actions and abandoning individual actions.

They are doing both now, and that sort of amplifies the risk for companies because you have to deal with mass actions at scale and a sort of dominating class action in the sense of that it may shape the law in a certain area.

Interesting.

And, and Nel, what about in the UK? 'Cause my understanding really is that when we technically talk about class actions, we are talking about representative actions really, but-

Yeah

... what do you understand is meant by the term?

Yeah, so I think in the UK we tend to use the term quite loosely, and certainly when I speak to people in the US about class actions, I often get the answer, "That's not a class action," because actually the only opt-out regime we have is the one in the Competition Appeal Tribunal.

So I think we mean m- more broadly mass group litigation.

So we have group litigations under CPR 19.11, which allow for cases which give rise to common issues to be managed together.

Uh, we have representative actions under CPR 19.8, which actually is the only sort of opt-out mechanism that we have outside the CAT, and that's where claimants can bring a mass claim where they have the same interest, but it's been quite narrowly interpreted.

And then we just have joint claims by multiple claimants using an omnibus claim form, which has been quite broadly interpreted as being able to be used where claims can be conveniently disposed of in the same proceedings.

And there was actually a very recent case on that, I think, a week or two ago, in Angel and Blackhorse, where it confirmed that that is a very broad test as to what can be dealt with conveniently together.

So we're really talking about all those sorts of things, just meaning it's not just a standard one or two claimants against one or two defendants, but something much bigger.