The Court of Appeal has dismissed an appeal against a High Court decision striking out the representative element of claims for failing to satisfy the “same interest” requirement under CPR 19.6: Jalla & Anr v Shell International Trading & Anr [2021] EWCA Civ 1389.

The Court of Appeal rejected the submission that this case was “materially indistinguishable” from Lloyd v Google LLC [2019] EWCA Civ 1599 (considered here), in which the Court of Appeal found that an action for alleged data breaches could proceed under CPR 19.6 on behalf of some four million iPhone users. The present case was in fact quite different, the Court of Appeal held, in particular because issues of limitation, causation and damages – core issues which could not be considered “subsidiary” to the proceedings – would have to be determined on a claimant-by-claimant basis. Permitting these proceedings to continue as a representative action would not achieve any of the intended benefits of CPR 19.6.

The decision will be of interest to financial institutions as it affirms that (subject to limited exceptions) the collective action regime in England and Wales works on an “opt-in” basis, and the scope for “opt-out” actions remains limited. Claimants seeking to bring mass tort claims, or indeed any collective litigation in which issues of limitation, causation, damages and/or potential defences may vary amongst the claimant group, will need to consider other procedural options, in particular a group litigation order (GLO), or combined case management utilising test cases.

For a more detailed discussion of the decision, please see our litigation blog post.