Group litigation and Litigation Insurance – the reality, the practicalities and what you need to succeed

Group litigation invariably involves individuals pooling their resources against a large plc or other such corporate entity. They are joined together by the common cause of “righting the wrong” they have suffered and their hope that Lady Justice will favour David over Goliath. Understanding how Litigation Insurance can benefit your firm and your clients can be a significant factor.
But embarking on commercial litigation with a group litigation order (GLO) is much easier than staying the course – navigating your clients through the (at times) byzantine process is far from straightforward.

As litigation insurers and funders, we know of the many risks that will be encountered and the difficulties that members of GLOs will meet, especially if they are not adequately prepared or well-resourced.

Whilst the defendant company will have the means to instruct top City lawyers, the claimant group will comprise people with different financial resources, personalities, and perhaps even different solicitors. Similarly, the defendant’s balance sheet will also be able to cope with any damages sum ordered by the court or adverse costs order if it is defeated, the claimants may face the possibility of losing property, savings or the prospect of filing for an IVA or bankruptcy. This risk is borne out in CPR 46.6:

(3) Unless the court orders otherwise, any order for common costs against group litigants imposes on each group litigant several liability for an equal proportion of those common costs.
(4) The general rule is that a group litigant who is the paying party will, in addition to any liability to pay the receiving party, be liable for –
(a) the individual costs of that group litigant’s claim; and
(b) an equal proportion, together with all the other group litigants, of the common costs.

And further in CPR 19.12:
(1) Where a judgment or order is given or made in a claim on the group register in relation to one or more GLO issues –
(a) that judgment or order is binding on the parties to all other claims that are on the group register at the time the judgment is given or the order is made unless the court orders otherwise; and
(b) the court may give directions as to the extent to which that judgment or order is binding on the parties to any claim which is subsequently entered on the group register.

We also know from the case of Sharp v Blank [2017] EWHC 3390 (Ch) that the courts have a blank canvas when it comes to managing the costs of these cases. In Sharp, the defendant succeeded when it applied to vary their costs budget three months into trial after a costs management order had already been made some 10 months’ previously. This was principally so that the claimants (all 5,800 of them) were aware of the extent of their costs exposure.

The Temple Viewpoint

Good planning and risk assessment are the key to success. As a market-leader in financing commercial litigation, Temple Legal Protection have the experience and knowledge to provide you and your clients with the tools needed to succeed.

When it comes to court fees, expert reports, interim costs orders and Part 36 offers, your clients need adequate security from costs risk and competitive loans to finance disbursement costs. With Temple, repayment of these is conditional on success and there is no preference for you to be on a CFA or DBA.

The next time you hold a client meeting, make sure you advise on the benefits of commercial ATE/litigation insurance and funding. A client may have the means to fund the risk – but once the position has been explained to them, would they really want to waste the difference between the cost of the premium and the full amount of the other side’s costs? It pays to be prepared, and your clients will appreciate the reassurance of this financial protection.

To find out more about group litigation backed by litigation/ATE insurance, please call our commercial team on 01483 577877 or send an email to david.chase@temple-legal.co.uk

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