Class actions: a changing landscape

10/06/26

The Supreme Court's decision in Evans v Barclays Bank Plc [2025] UKSC 48 – refusing opt-out certification of the FX class action – may prove to be a turning point for the collective proceedings regime in the Competition Appeal Tribunal. However, its influence could extend beyond competition law to how courts approach representative actions under CPR 19.8.

Outside the CAT regime, there are two formal procedural routes by which ‘class actions’ can be brought in England and Wales: Group Litigation Orders (e.g. Lloyds/HBOS and Pan NOx Emissions) and representative actions under CPR 19.8.

Both routes have existed for many years, but representative actions have attracted a considerable amount of attention recently. They can be brought on either an opt-out or opt-in basis.

The leading authority remains Lloyd v Google LLC [2022] AC 1217 in which the Supreme Court arguably encouraged greater use of the representative procedure even though, on the facts, it ultimately held that Mr Lloyd’s claim on behalf of millions of iPhone users under section 13 of the Data Protection Act 1998 could not be brought as a representative action.

Since Lloyd there have been three Court of Appeal decisions considering CPR 19.8: Commission Recovery v Marks and Clerk [2024] EWCA Civ 9, Prismall v Google [2024] EWCA Civ 1516, and Wirral Council v Indivior Plc [2025] EWCA Civ 40. In Commission Recovery the representative action was permitted to proceed, but Prismall and Wirral illustrate some of the challenges.

In Prismall, a representative action was brought on behalf of 1.6 million individuals for misuse of private information, namely certain patient-identifiable medical records. The action was struck out notwithstanding the attempt by the claimant to satisfy the “same interest” requirement in CPR 19.8 by limiting the claim to "lowest common denominator" damages.

In Wirral, which concerned a securities claim under sections 90 and 90A FSMA 2000, the representative action was struck out for different reasons. The claimant sought to bifurcate the proceedings so that (1) at the first stage the defendant-side liability issues would be tried on a representative basis, with the claimant seeking declaratory relief, and (2) if liability were established, at the second stage individual investors would then be entitled to pursue causation and quantum issues. This was held to be contrary to the overriding objective, since it would have limited the ability of the court to make case management directions: for example, in other FSMA cases, even where a split trial has been ordered in multi-party proceedings, the courts have given directions for the claimant-side issues to be progressed in parallel to the first trial.

Even more recently, the High Court has rejected a representative action under CPR 19.8 in a Francovich damages claim brought on behalf of approximately 30,000 US musicians and vocalists: AFM and SAG-AFTRA & ors v Secretary of State [2025] EWHC 1944 (Ch) and 3262 (Ch). The claimants’ proposals have on two occasions been rejected as unworkable.

As Knowles J observed at first instance in Commission Recovery, “we are still perhaps in the foothills of the modern, flexible use” of the procedure under CPR 19.8. That certainly remains true, and a key unanswered question that now arises is whether a knock-on impact of Evans will be to curtail the use of the representative procedure on an opt-out basis.

If the case law does begin to trend away from opt-out actions, this could have wider implications. The Law Commission is due to begin work later this year on a new project concerning the potential introduction of a consumer class action regime. One option under consideration is to broaden the jurisdiction of the CAT to hear opt-out actions in non-competition cases.