Expansion Of ‘Same Interest' Requirement For Representative Claims

In Commission Recovery v Marks & Clerk LLP [2023] EWHC 398 (Comm), the first high-profile assessment of the 'same interest' test for representative actions under the Civil Procedure Rules (CPR) since the Supreme Court's ruling in Lloyd v Google [2021] UKSC 50, the High Court held that a dispute relating to secret commissions could proceed as a CPR 19.6 'opt out claim'. The High Court determined that, although there were differences between the claims, there was no conflict of interests between the claimant class, i.e. information and arguments advanced by one class member would not prejudice the interests of another. This lack of conflict was a crucial factor in the Court's decision to permit the representative action to proceed. The decision suggests a change in approach from previous cases, with the Court taking a wider view of the 'same interest' requirement.