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Group Litigation – ‘The Right Crowd and No Crowding’

By Matthew Pascall, Senior Underwriting Manager

(Estimated reading time: 3 minutes 3 seconds)

The Temple head office is located just a few miles from the historic motor racing track at Brooklands. In the 1930’s the track announced on its posters that it offered “The Right Crowd and No Crowding.” It strikes me that this catchy phrase sums up the effectiveness of group litigation.

In very broad terms, the object of the relevant rules is to ensure that the courts can manage the claims of the “right crowd” (claimants with similar or identical claims) without the problems of “crowding” – hundreds of individual but similar or identical claims proceeding through a number of different courts separately.

We routinely insure group actions. Through a suite of policy wordings and endorsements we can tailor policies that meet the needs of group litigants in a variety of different scenarios.

Over the last three years we have insured hundreds of former investors in apartments bought off-plan in developments in Liverpool, Leeds and Manchester that subsequently failed. The investors lost their deposits (often 80% of the purchase price). Most of these claims were focused on allegations of professional negligence against the investors’ solicitors, who, it was alleged, had failed to provide adequate information about the inadequate protection provided to the investors under their original contracts to buy the apartments.

By way of contrast, we have insured group actions under Part 1 of the Land Compensation Act 1973 on behalf of local landowners following the construction of a new terminal and extended runway at Southend Airport and, in a separate group action, after substantial improvements at Stansted Airport.

Nuisance claims lend themselves to group actions and we have recently insured nuisance claims on behalf of a group of residents living close to a landfill site near Cannock in Staffordshire.

We are seeing an increasing number of financial or product mis-selling claims, run either on an individual basis or as group actions. These can be problematic, particularly if the adverse costs cover we are asked to provide for individual claims is out of proportion to the value of those claims.

An advantage of running these claims on a group basis is that the cost of providing cover can then be met by the group collectively. This enables us to offer competitive premium rates that would not necessarily be available on an individual case basis.

Group actions also offer the chance for an important issue of law or fact that is common to a large number of pending claims to be determined in a way than then provides guidance for the cases that follow.

We anticipate increased interest in litigation insurance for collective proceedings before the Competition Appeals Tribunal (CAT) following last December’s Supreme Court decision in Mastercard Incorporated and Others v Merricks[1]. The judgment of Lord Briggs emphasises the utility of collective proceedings: –

Collective proceedings are a special form of civil procedure for the vindication of private rights, designed to provide access to justice for that purpose where the ordinary forms of individual civil claim have proved inadequate for the purpose.”

The decision should ease the path for future proceedings before the CAT. In one sense these cases might not be regarded as group litigation, but in reality and substance, they are. The process is designed to enable the CAT to determine whether or not anti-competitive practices have caused harm both to the individual or group bringing the action and the much wider class they represent.

I suspect that proceedings before the CAT may lack some of the excitement of a day at Brooklands in its heyday, but they do enable justice to be done for the right crowd and no crowding!

To find out how temple can support group litigation undertaken by your firm, please contact Matthew Pascall on 01483 514428 or email matthew.pascall@temple-legal.co.uk.

[1] [2020] UKSC 51

Matthew Pascall

Senior Underwriting Manager
Read articles by Matthew Pascall

Matthew Pascall

Barrister Matthew Pascall joined the commercial team at Temple Legal Protection, as Senior Underwriting Manager in November 2017.

Matthew was called to the Bar in 1984 and joined Guildford Chambers two years later. Spending more than 30 years in practice there, he has comprehensive knowledge and experience of the commercial legal sector and is listed in the current Legal 500 as a Tier 1 barrister.

Previously Matthew had been providing ongoing consultancy services to Temple Legal Protection for some time and therefore has prior insight into the company and established productive relationships with our clients. His knowledge of the commercial legal sector and litigation practice is invaluable to the business and our clients, providing specialist experience to lead the commercial litigation insurance team.

 

Read articles by Matthew Pascall