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ARTICLE · 04 NOVEMBER 2020

The Same Damage Test – Putting A Brake On Representative Actions

Mayer Brown
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A significant difference between the US class action model and how collective litigation is generally conducted in England is that US class actions are predominantly conducted on an "opt-out"...

United StatesLitigation, Mediation & Arbitration
Stuart Pickford
Stuart Pickford
James Whitaker
James Whitaker
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A significant difference between the US class action model and how collective litigation is generally conducted in England is that US class actions are predominantly conducted on an "opt-out" basis, whereas English group litigation takes an "opt-in" approach.1

The "opt-in" approach requires putative class members to take positive steps to be included, so lead claimants will often need to build a book of claimants to make the claim viable.  But can that be avoided by structuring the claim as a "representative action" within CPR Part 19.6, so that everyone within the representative class is automatically included?

The use of the representative action procedure has received support from the Court of Appeal in the context of data breach claims, but the recent decision in Jalla & Ors v Shell International Trading and Shipping Company Limited  2   highlights the potential difficulties facing claimants when trying to bring damages claims on this basis.

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