In a judgment handed down on 8 April 2009 in Emerald Supplies Ltd v British Airways PLC [2009] EWHC 741 (Ch), the High Court has confirmed the strict test which applies where a claimant seeks to bring proceedings on behalf of others who have the same interest in the claim.

Background

Under rule 19.6 of the Civil Procedure Rules (CPR), a representative claim may be brought by or against one or more persons as representatives of any others who have the "same interest" in the claim. The represented class are bound by any judgment or order in the action, but the court's permission is needed to enforce a judgment or order against any member of the class who is not a party to the action.

In England and Wales there is no direct equivalent of the US "opt-out" model of class action in which one or more parties can bring an action on behalf of a very large class which includes absent or unidentified parties. Procedures for multi-party litigation in this jurisdiction generally require potential claimants to make a positive decision to opt in to the proceedings. Representative actions under CPR 19.6 may be seen as an exception, in that the represented class need not take any positive action to be represented in the claim, nor must they be individually identified in the proceedings. However, representative actions have not to date been widely used in English litigation, largely because the courts have tended to adopt a strict interpretation of the "same interest" requirement.

Facts

The claimants were cut flower importers who used the air freight services of BA and other international airlines. They alleged that BA was party to a price-fixing cartel with a number of other airlines, the effect of which was to inflate air freight prices.

The claimants brought an action against BA both on their own behalf and as representatives of "all other direct or indirect purchasers of air freight services the prices for which were inflated by" the alleged cartel. They sought a declaration that damages were recoverable from BA by the claimants and the other direct and indirect purchasers represented in the action.

BA applied to strike out the representative element of the claim, arguing that those the claimants sought to represent did not have the "same interest" in the claim as required under CPR 19.6.

Judgment

The Chancellor (Sir Andrew Morritt) granted BA's application to strike out the representative element of the claim on the basis that the represented class did not have the same interest in the claim at the time the claim was begun. He rejected the claimants' argument that the identity of interest need only exist at the time judgment was given.

He applied the principles set out by the House of Lords in Duke of Bedford v Ellis [1901] AC1; in order for the "same interest" requirement to be met, the claimants and the class they sought to represent must all have "a common interest and a common grievance" and the relief sought must be "beneficial to them all".

Here, the essential difficulty was that the criteria for inclusion in the represented class could not be met at the time the action was brought, because they depended on the outcome of the action itself. The class was defined by reference to whether a person purchased air freight services at inflated prices as a result of the cartel, which was the very allegation the claimants had to prove in the action. Accordingly, it was impossible to say of any given person that he was a member of the class at the time the claim form was issued.

The Chancellor also accepted BA's submission that the relief sought was not equally beneficial for all members of the class. Damage was a necessary element in the cause of action of individual members of the class. Whether or not an individual class member could establish that necessary ingredient would depend on his place in the distribution chain, and who in that chain had absorbed or passed on the alleged inflated price. As such, there was an inevitable conflict between the claims of different class members.

The Chancellor rejected the claimants' suggestion that this difficulty might be solved by amending the claim to exclude from the represented class those whose losses had been passed on down the supply chain. He said that this might in fact increase the difficulty, since it would mean that it was impossible to ascertain the members of the class even at the time judgment was given. The question of where in the chain of distribution the loss had fallen would not be determined in the action itself, which sought only a declaration as to recoverability of damages. Further proceedings would be necessary between the various links in the supply chain to determine which (if any) were entitled to damages. He also rejected the argument that the US policy of allowing direct customers to claim for the entire overcharge, even where it has wholly or partly been passed on, was available to the court.

The Chancellor agreed with the claimants that CPR 19.6 was intended to provide a convenient means by which to avoid a large number of substantially similar actions, and that it should be interpreted in light of the court's overriding objective of dealing with cases justly. However, he did not think these points assisted the claimants' case: "It is not convenient or conducive to justice that actions should be pursued on behalf of persons who cannot be identified before judgment in the action and perhaps not even then." He commented that a multiplicity of similar actions might equally be avoided by use of the Group Litigation Order ("GLO") procedure, which allows the court to manage individual claims which give rise to "common or related issues of fact or law". The Chancellor indicated that a GLO might be the more convenient procedure in this instance.

Comment

The claimants in this case were effectively seeking to use the representative action procedure under CPR 19.6 to launch the equivalent of a US-style opt-out class action on behalf of all those who had suffered loss from the alleged wrongdoing. This decision underlines a number of difficulties standing in the way of such an attempt, particularly in a cartel case where issues arise as to whether any overcharge was passed on down the supply chain.

First, the case confirms that in order to bring a representative claim, it is necessary to be able to establish whether any given person has the relevant interest in the claim at the time the claim is begun. Any claim which seeks to define the represented class by reference to those who suffered loss as a result of particular alleged conduct is, on this approach, bound to fail.

Second, a claim will not be allowed to proceed where there is a clear conflict between the claims of different class members, such that it cannot be said the relief sought was equally beneficial to all class members.

In giving judgment, the Chancellor recognised that there is no limit to the number of persons included in a represented class under CPR 19.6, so the mere size and geographical spread of the class in this action was not of itself an objection to it. However, he stated that "the more extensive the class the more clearly should the other pre-conditions be satisfied". This suggests that the court will look with particular care at claims which seek relief on behalf of a very broad class of claimants, to ensure that the strict "same interest" requirement is met.

In recent years there have been numerous calls for the reform of collective litigation in England and Wales, with vocal claimant lobbies arguing that existing procedures do not provide effective access to justice where groups of individuals or businesses have suffered losses arising from the same wrongful conduct. The Civil Justice Council (CJC) has proposed a new form of generic collective action which would permit claims to be brought on behalf of a class of claimants, with the court deciding whether any particular case should proceed on an opt-in or opt-out basis. Unlike for representative claims under CPR 19.6, the class of claimants would not need to have the "same interest" in the claim, though there would have to be sufficient commonality of interest and remedy to make the case suitable for a collective action procedure. The government is considering the CJC recommendations and is expected to respond by the middle of the year. The OFT and the European Commission have also issued proposals for new forms of collective action in competition claims, which would allow cases to proceed on an opt-out basis in some circumstances.

As a result of these proposals, policy decisions are being taken which will determine the future of collective litigation both in this jurisdiction and across Europe. The judgment in the present case may be seen as a refusal to side-step this process by expanding the circumstances in which "opt-out" representative actions can be brought in this jurisdiction. The Chancellor commented that the issue was better dealt with by Parliament than by stretching the use of CPR 19.6 to accommodate this sort of case.