In Hamon v University College London1, the High Court declined to grant a Group Litigation Order (GLO) on the basis that it would "not be appropriate" as the litigation would be "best resolved by the creative use of the court's existing case management powers". Mass claims have become more common in England over recent years, although the number of GLOs has been limited. This case raises the question: what is the future for GLOs as a case management mechanism for multi-party litigation?
What is a GLO?
GLOs are a tool for the management of multiple claims which give rise to common or related issues of fact or law (known as GLO issues). The GLO is an opt-in mechanism whereby multiple claims are case managed together by the court under the umbrella of the GLO, with prescribed costs consequences.
GLOs were introduced into the court's procedural toolkit in May 2000 following recommendations in Lord Woolf's Final Access to Justice Report (the Report). The Report recommended the introduction of the GLO procedure as a more efficient way to deal with multi-party claims. The regime was designed to achieve the following objectives:
- allowing access to justice, where large numbers of people have been affected by someone else's conduct, but the individual loss was so small that proceeding with an individual action was uneconomic;
- providing effective methods of resolving cases, where damages were large enough to justify an individual claim, but due to the number of claimants and the nature of the issues, the cases could not be managed properly within the normal procedures; and
- achieving a balance between the rights of claimants and defendants to pursue and defend cases individually, and the interests of a group of parties to litigate the action in an effective manner.
In Tongue and others v Bayer Public Ltd Company and others2 the court summarised the basic test for whether or not to make a GLO:
"In order to make a GLO, the court must be satisfied that (1) the claims give rise to common or related issues of fact or law; and (2) there are a sufficient number of claimants who seriously intend to proceed in their claims giving rise to those issues. If those threshold tests are met, the court has a discretion to make such an order."
The Hamon claim
The claim in Hamon is brought on behalf of students at University College London (UCL) between 2017 and 2022. The claimants allege that UCL breached its contractual obligations for the provision of tuition and related services during periods of industrial action and/or the Covid-19 pandemic. The claim was first pleaded in Group Particulars of Claim in February 2023.
The claimants claim damages based on the difference between the market value of the services promised by UCL compared with those provided, as well as damages for distress and disappointment. UCL is defending the claim in full on grounds of both contract law and estoppel.
The GLO application
The claimants' application for a GLO first came before the court in May 2023. However, the proceedings were then stayed to allow participation in alternative dispute resolution (ADR) procedures. When granting the stay, Senior Master Fontaine made clear that if the ADR was unsuccessful, the parties were to engage on how the claims could be "most proportionately and efficiently managed [...] whether by GLO or otherwise".
The ADR process did not achieve a settlement. The GLO application therefore came back before the court.
The claimants submitted that a GLO was the "best way" the claims could be managed. They said making a GLO would ensure "access to justice, an efficient and proportionate method of resolving the claims, and an effective means of resolving common issues whilst still enabling claimant specific issues to be determined"3.
The claimants proposed six GLO Issues, and argued that there was sufficient commonality on the issues that a GLO would be useful, regardless of differences between the individual claims. The claimants also argued that the GLO regime would provide "tangible benefits" to UCL, including "funnelling all claims into a single proceeding which is cost effective for the defendant to deal with"4.
UCL opposed the making of a GLO, saying one was "inappropriate and unnecessary and that the court can manage this litigation under its existing case management powers"5. UCL was concerned that a GLO would increase work and costs due to the requirement to continually update a GLO register. More fundamentally, UCL argued that the claimants had failed to properly particularise their claims or provide sufficient detail of the legal issues in order to establish commonality of the GLO Issues.
The court's decision
The court was satisfied that the claims gave rise to common issues of fact or law. The claimants are all students of UCL who allege that their studies were impacted by industrial action and/or Covid-19, and all contracted on the same disputed terms that would need to be interpreted by the court. As such, the court accepted that the threshold requirements for a GLO were met.
However, Senior Master Cook decided that the court's general case management powers under CPR 3.1, which he described as "very wide indeed"6, were a better way to manage the former students' cases.
He highlighted, in particular, the court's powers under CPR 3.1(2) to (among other things) stay the whole or part of any proceedings; consolidate proceedings; try two or more claims together; direct a separate trial of any issue; decide the order in which issues are to be tried; exclude an issue from consideration; dismiss or give judgment on a claim after a decision on a preliminary issue; and take any other step or make any other order for the purpose of managing the case and furthering the overriding objective (which is to deal with cases justly and at proportionate cost).
He determined that a GLO would not "promote fairness, save costs or allow the claims to be dealt with in a timely and efficient manner"7 and therefore exercised the court's discretion not to grant one. Rather, Senior Master Cook believed a GLO would create unnecessary delay and increase costs and was simply not needed to manage the case. He also noted that, since Lord Woolf's recommendation of the GLO regime, "technological and computing developments have revolutionised the way in which lawyers and judges work and manage cases".
What does this mean for GLOs?
The reasoning behind this decision not to grant a GLO raises the question of what the future holds for GLOs as a case management mechanism in the English courts.
GLOs are already uncommon. Since their introduction in 2000, the Government's official list indicates that only 123 GLOs have been made. Further, the decision in Hamon is the latest in a series of recent decisions in which the court declined to make a GLO in favour of relying on its general case management powers (see Stephen Beck & Ors v The Police Federation of England and Wales8, Bennet & Others v Equifax9 and Edward Moon Ors v Link Fund Solutions10).
Two of the factors which appear to have materially influenced Senior Master Cook's decision (that the parties were in broad agreement as to case and costs management with or without a GLO, and that there are likely to be few, if any, additional claims commenced in future) will not be present in every case.
However, more fundamentally, Senior Master Cook appears to have reached the view that, in light of technological developments in the past 20 years, a GLO was more likely to represent an additional burden on the parties and the court than to provide substantive value – even though the necessary procedural requirements were successfully made out.
That consideration is likely to weigh heavily in future GLO applications, and in practical terms could make it harder for parties seeking a GLO to justify why one is required.
The proliferation of individualised case management approaches over GLOs may also inhibit the development of established and consistent authorities and guidance as to how class actions of this nature are run in the English courts. Senior Master Cook highlighted the need for "cooperation and creativity" when attempting to replicate GLO features using the court's standard case management powers. While that may allow greater flexibility, it also potentially introduces greater uncertainty for parties and a greater possibility of satellite disputes.
Footnotes
1. David Hamon and other individuals identified in Schedule 1 to the Claim Forms v University College London [2024] EWHC 1744
2. Tongue and others v Bayer Public Ltd Company and others [2023] EWHC 1792 (KB)
3. Op Cit, [20]
4. Op Cit, [24]
5. Op Cit, [26]
6. Op Cit, [42]
7. Op Cit, [50]
8. Stephen Beck & Ors v The Police Federation of England and Wales QB-2022-001873
9. Bennett & Others v Equifax Ltd [2022] EWHC 1487 (QB)
10. Edward Moon Ors v Link Fund Solutions [2022] EWHC 3344 (Ch)
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