By Professor John Sorabji (Hon)
Collective action reform in England and Wales was first seriously mooted twenty five years ago. From the perspective of proponents of the opt-out form of collective action (i.e., a form of collective proceedings where all the potential claimants are automatically represented in the proceedings unless they explicitly choose not to be), nothing of substance has been achieved since then. The closest advocates for reform got were the class action provisions in the 2009 Financial Services Bill, which were dropped at the last minute to help secure the Bill’s enactment prior to the 2010 general election.
Since 2010 prospects for reform have been slight. A pre-general election consultation by the Department for Business, Innovation and & Skills (BIS), which raised the issue of a consumer collective action, disappeared without trace. In this there was nothing to surprise the sceptic: collective action consultations have historically yielded nothing. In April 2012, to the surprise of many, BIS issued another consultation. This time its focus is reform of the follow-on opt-in form of collective action which can be used in claims brought under the Competition Act 1998
The present consultation once more raises issues which, given the 25 year history of abortive reform, have been debated to the nth degree, two of which do however need detailed consideration.
First, the consultation moves beyond the government’s previous position that if reform is to be implemented it should be consistent with the Civil Justice Council’s 2008 recommendations. In particular it proposes that an opt-out form of action be introduced; the CJC had rejected the introduction of an opt-out action in favour of one where the court determines on a case-by-case basis whether the action should be opt-in (i.e., where a claimant has take deliberate and express steps to be brought within the scope of the proceedings) or opt-out.
BIS’s proposal is predicated, amongst other things, on the grounds that the present Competition Act opt-in procedure is inadequate; inadequate because it has only ever been used once, in the JJB Football shirts case and then only because, it is claimed, a mere 130 individuals opted-in. The factual claim is contentious: opt-in figure was arguably 550, if not higher, with an additional 15,000 individuals claiming under the settlement reached in the proceedings. More substantively, the consultation does not appear to grapple with the question whether the lack of claimants opting-in is actually a sign that individuals are making a proper choice not to pursue an individually de minimus claim, and whether an opt-out system actually amounts in such circumstances to an improper fetter on an individual’s choice to resort to litigation to enforce their rights. It is a question that the CJC did not consider. If reform is to come, it might perhaps be better if it came after principled consideration of this issue.
Secondly, the consultation raises the question of what happens to damages awarded under an opt-out procedure which go unclaimed. Opt-out systems always result in some, if not the majority of, damages going unclaimed. Rather than being taken as a sign that the procedure does not provide access to justice, compensation for loss or the enforcement of private rights for those individuals whose rights were infringed, the unclaimed damages are viewed as something which can be distributed by the court for a purpose related to the substance of the claim (a cy-pres distribution). The consultation, for the first time, proposes that unclaimed damages should not be distributed this way but should rather be paid to the Access to Justice Foundation.
Critics might suggest that whatever the merits of a cy-pres distribution, at least it is intended to result in a benefit to those similarly situated to the individuals whose rights had been infringed. Requiring such funds to be paid to a charity, no matter how meritorious, which has nothing to do with the rights infringed, might be said to run contrary to the aim of enforcing rights and securing effective compensation for those harmed individuals. It might even be said, as it was in the United States in the context of a statutory provision which required unclaimed damages to be paid to the State, to ‘cripple the compensatory function for the private class’ (State of California v. Levi Strauss & Co., 715 P.2d 564, 575 (Cal. 1986)).
Hopefully BIS will consider these, and the other issues which its proposes raise, and in doing so ensure that reform, if it comes, is consistent with securing effective access to justice for those who genuinely wish to pursue their claims and see their rights enforced; a commitment to the rule of law requires no less. If it does not, its consultation will be yet another false dawn.
Prof John Sorabji (Hon) is Senior Fellow, Judicial Institute, University College, London, barrister and Legal Secretary to the Master of the Rolls. He is a contributor to Extraterritoriality and Collective Redress, edited by Duncan Fairgrieve and Eva Lein. Any views expressed in this article are those of the author and are neither intended to nor do they represent the views of any other individual or body.