If any trend is set to define the London disputes market in 2024, it is the continued rise of group litigation. A vast array of mass claims are winding their way through the courts, spurred on by an increased willingness to adapt to the challenges of case management, heightened awareness of environmental, social, and governance (ESG) issues on the parts of corporates and the general public, the maturing of the claimant Bar, and the development of the Competition Appeals Tribunal (CAT) regime – including the rise of the first opt-out class actions.
The comprehensive failure of ClientEarth’s derivative claim against Shell has not slowed activity in the environmental space. In addition to the upcoming decision in the major Municipio de Mariana & Ors v BHP Group, a number of other group actions are brewing, with Leigh Day among the firms leading the charge. The firm is bringing a claim on behalf of more than 11,000 claimants from Nigeria’s Ogale and Bille communities, alleging that oil spills from Shell pipelines have caused long-term contamination of claimants’ land and water. Judgment is awaited in a petition to further expand the claim to address questions about the right to a clean environment.
Closer to home, Leigh Day is also looking to bring a claim on behalf of thousands of residents of the River Wye Valley alleging phosphorous pollution caused by intensive poultry farming. The claim is currently at the pre-action stage, and is expected to be issued in 2024. If allowed to proceed, the claim would pursue both compensation for damages and remedies to restore the river. The firm is also bringing a £330m opt-out class action on behalf of prospective class representative Carolyn Roberts against Severn Trent Water, with a further five claims expected. Reflecting what one competition disputes head calls the ‘interface between competition and environmental law’, the claims centre on an abuse of dominant position argument alleging that misreporting of pollution incidents allowed the defendants to charge higher prices for sewerage services than they otherwise would have.
The courts will also hear arguments in the highly publicised ‘Dieselgate’ group litigation, with claimants alleging that a raft of manufacturers fitted their vehicles with ‘defeat devices’ designed to cheat nitrogen oxide (NOx) emissions tests. The first major trial is set to begin in February 2025 in Ms Aurora Cavallari & 157 Ors v Mercedes-Benz Cars UK Ltd & Ors. Eighteen claimant firms are bringing an estimated 1.25 million claims against a defendant class of 16 manufacturers and as many as 1,600 other defendants. In December 2023 the High Court brought claimants and defendants from 13 existing and prospective claims together for a mass hearing in what is now dubbed the ‘pan-NOx’ emissions litigation. The court ruled that the cases will be jointly managed – demonstrating its embrace of the sort of novel approaches to case management that make litigation at this scale possible.
This was also on show in the CAT’s 9 January 2024 ruling in The Trucks Second Wave Proceedings, which laid out a roadmap for the next wave of stand-alone claims relating to alleged cartel behaviour on the part of truck manufacturers. It ruled in favour of an issues-based approach: ‘trying important (case settling) issues arising from the generality of the litigation in one go, across all cases’. The ruling came after the first wave of proceedings rolled to an end when the claims to be tried in trials two and three, scheduled for 2023 and 2024 respectively, settled. The CAT also proposed to list informal remote case management hearings every three weeks throughout 2024. The claims bundled together in the second wave proceedings comprise 82 actions brought by separate claimant groups made up of hundreds of individual entities issued in England and Wales, Northern Ireland, and Scotland. While the substance of the issues will not be resolved until an eight-week trial beginning in May 2025, litigators will watch the hearings closely for indications as to how such mass claims will be handled. In addition to the second wave proceedings, the CAT also gave the go-ahead last year to the Road Haulage Association (RHA)’s trucks claim, which follows on directly from the European Commission’s findings related to the cartel. The Court of Appeal upheld the CAT’s approval of the RHA’s opt-in claim, but found a conflict within RHA’s claimant class between those who bought trucks new and those who bought them used. The issue was remitted to the CAT, with the next hearing scheduled for two days in June. Though it establishes no general preference for opt-out claims over opt-in ones, the decision adds another strut to the scaffolding of the emerging CAT regime.
Securities group actions are also on the rise, with the first such claim, Various Claimants v Serco Group, set to go to trial in June, alleging fraudulent overcharging and misleading the market against Serco on behalf of over 60 institutional investors. Meanwhile, another s90a Financial Services and Markets Act (FSMA) claim Group Action v Glencore plc, is set for a case management conference in May. The claim sees financial institutions allege bribery and corruption against commodity training and mining multinational Glencore in relation to its 2011 IPO and its May 2013 merger with Xstrata.
A number of consumer class action decisions are also awaited, from the CAT’s ruling in the £1.3bn Justin LePatourel v BT to Sony v Alex Neill, which continues its progress through the courts after the £5bn claim was certified in November 2023. Brought on behalf of anyone who purchased either games or content from the PlayStation Store between August 2016 and 2022, the certification saw the first approval of a litigation funding agreement (LFA) since the Supreme Court ruled in PACCAR in July that percentages-based LFAs were unenforceable under damages-based agreement (DBA) regulations. While this provided much needed clarity to the industry, funders will watch closely to see how the government will progress its commitment to legislate to overturn PACCAR.
Again, the Sony case sees the CAT taking an active role in case management, directing how experts should work together in relation to disclosure and requiring them to identify the methodologies they rely on and the categories of data required to prove factual points at issue.
Data issues are also at the heart of Gormsen v Meta – a competition class action alleging abuse of dominance against Meta for its use of consumers’ data. The CAT granted certification in January after last year requiring prospective class representative Dr Liza Lovdahl-Gormsen to reformulate her claim. The initial denial of certification seemed to indicate stricter limits on what sort of claims could be formulated as competition claims to proceed in the CAT. And litigators will study the case’s progression with interest to gain more information about precisely where the CAT’s limits lie.
Another high-value collective action against a leading tech company is the case against Amazon alleging that the site’s featured product offers in the ‘buy box’ favoured Amazon suppliers, amounting to an abuse of the online retail giant’s dominant position. The claim is another that is linked to investigations by the EU Commission and the UK’s Competition and Markets Authority (CMA). In February the case saw the first CAT pre-certification hearing concerning a carriage dispute, with Julie Hunter and Robert Hammond both seeking to represent UK consumers in the £1bn opt-out class action. The CAT ruled in favour of Hammond, who is now class representative on the claim.
Away from group actions, competition, and ESG, it is difficult to identify major trends among the most anticipated cases of the year. Litigators remain somewhat split on the significance of the Covid-19 pandemic. Several note the rise in insurance litigation in the aftermath of the pandemic, and data from disputes analytics platform Solomonic shows an 84% year-on-year rise in the number of claims in the insurance sector in 2023. But this increase is related to not just the pandemic but disputes in the aviation sector too, in particular the mass of claims relating to Russia’s seizure of aircraft after the outbreak of the Ukraine war.
Major Covid cases have, so far, been notable by their absence. The courts continue to work out the implications of the pandemic for business interruption (BI) claims. The Arsenal Football Club Plc & Ors v Allianz Insurance Plc & Anor is set to go to trial in the Commercial Court in May, and will bring further clarity on the extent to which policyholders can make separate BI claims for disruptions caused as a result of the pandemic. Disputes have also arisen from government procurement decisions, such as Secretary of State for Health and Social Care v Primer Design Ltd and Novacyt SA, which sees Primer Design and its parent company defending a £135m claim brought by the government alleging it supplied defective Covid test kits, and bringing its own £81m counterclaim, set for a four-week trial in the summer. More disputes may follow, but will likely await further findings from the ongoing parliamentary inquiry.
Insolvency, too, has failed to generate a huge boom in contentious work. Some of this may be yet to come: according to Insolvency Service statistics company insolvencies in January 2024 were up 5% year-on-year and 13% on January 2022, while compulsory liquidations increased by 66% and administrations by 40% year-on-year. The British economy entered recession as of February’s announcement that GDP contracted 0.3% in the three months to December 2023 after a 0.1% decline July to September, but more recent figures show a return to slight positive growth. And firms report increases in both non-contentious insolvency and restructuring appointments and queries over covenants and supply chain costs in real estate. High-profile bankruptcies such as that of WeWork, which filed for chapter 11 bankruptcy in New Jersey last November, have already produced litigation in London, with Ashurst’s head of real estate disputes Alison Hardy leading on cases brought by property investors Almacantar and Nuveen against the US coworking provider. But at time of publication, insolvency litigation remains more of a potential on the horizon than an active factor driving large-scale disputes in London.
Finally, neither price volatility nor geopolitical turmoil has resulted in a significant uptick in energy disputes in either the English courts or London-seated arbitrations. One London litigator explains this with reference to the UK’s lower level of exposure to Russian gas than continental Europe. And disruptions to Red Sea shipping due to Houthi activity are too recent to have showed up in litigation. Meanwhile, though consumer price hikes produced both misery and discontent, they have not yet resulted in mass claims against power companies. The one major class action awaiting certification, with a CAT hearing set for April, is unrelated to the economic and geopolitical factors that have brought the energy sector to the front pages of UK newspapers in the last year. Instead, Burford Capital is funding a case against cable manufacturer Nexans alleging price increases linked to European Commission rulings in 2014 concerning high-voltage power cables.
It is, as ever, difficult to make predictions, especially about the future. And litigators will continue to monitor economic and geopolitical developments to identify dispute risk. But when it comes to the cases of the year, collective actions and the evolving role of the courts remain front and centre.
Cases of the year
Gormsen v Meta
Justin LePatourel v BT
Train tickets cases
Shepherd Construction v Kingspan & Ors
Serco
Municipio de Mariana & Ors v BHP Group
Mastercard proceedings
Russian aircraft claims