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What are the challenges and pitfalls of group litigation orders (GLOs)? David Body, national head of the product liability team at Irwin Mitchell, offers his advice for those considering applying for a GLO.
The key issue for any GLO is that, in order to justify the effort of putting together an action, the cases are sufficiently similar so as to make a finding about one or a set of them dispositive of a whole group of them. For example, if there are 100 cases in total and 10 test cases are selected, on the basis of findings for those 10 cases, we aim to make findings that are sufficiently robust to decide the others on the basis of those test cases—so that the findings in the few are dispositive of the many.
Traditionally, it is also a way of assembling a series of cases which are relatively low in value but in which you achieve economies of scale. A single claim might not be worth the powder and shot of assembling a large complex action. For example, in the Poly Implant Prothèses (PIP) breast implant litigation, the claims have a relatively modest value as individual personal injury claims but when there are, say, a 1,000 plus cases the economics make sense. There is a cost saving to be had, as simple as that.
The case of Various v Barking, Havering & Redbridge University hospitals Nhs Trust  Lexis Citation 119 concerned an application for a GLO where there was not a unity of clinical issue. When you talk about group actions on behalf of disappointed rail passengers, people who bought soccer shirts and were appalled at their cost (as in the collective action brought by the consumer group Which? against JJB Sports in 2008), or people who have been affected by the same medical device or pharmaceutical, then the unity is clear: ‘I have been affected by this drug.’ ‘I was on that train.’ ‘This is the shirt, here is my receipt.’
In this case, the claimant lawyers argued on behalf of patients that there were concerns about the unit because of a diverse set of claims in different areas of clinical practice rather than in one defined area. The aim being, I assume, to point to a failing culture perhaps because of the calibre or ethics of the management—perhaps because it had prioritised financial management as against clinical care, rather than pointing to a single set of clinical failures with a unity of time or (clinical) place within the hospital. In other words, when you look at the different issues concerning different patients that have arisen in this hospital over a period of time, you can see that what they reflect, in terms of ‘unity’, is not a single category of claim but rather the absence of an appropriate risk avoidance culture. The logic applied by Master Leslie is internally consistent and the decision you might have got from most first instance judges. It is a measured and thoughtful decision but I wonder if in a few years’ time we might see such group claims being waved through by judges eager to understand—as the Chief Inspector of Hospitals now tries to understand—why some units have a much better developed safety culture than others.
I mentioned the PIP litigation and many of the examples in this country are in the area of personal injury claims whether medical negligence or product claims. There are shareholder actions being brought against the Royal Bank of Scotland. Historically there have been group actions on behalf of disgruntled rail commuters but not yet, as in the United States, where creativity is unbounded, claims on behalf of people whose flight had been delayed at O’Hare airport in Chicago. The claims were so trivial that people were paid off in vouchers from Amazon.
From the claimant’s point of view, the advantage is that ‘unity is strength’. A claim that would have been difficult to bring yourself, is not if you are one of 10, 100 or 500 people because there is someone there to help with the heavy-lifting.
You may or may not be a test case claimant but you are likely to be represented by a team of lawyers and so the claim will have to be well organised, properly investigated and persuasively evidenced in order for it to go forward. That was certainly the case when we used to act in these cases on legal aid. The process is even more stringent when a claim is brought on a conditional fee agreement and backed by after-the-event insurance where we have to show that the prospects of success are at least 60% before we go forward with a claim.
On the defendant’s side, there is an advantage in the way that a GLO is managed, particularly by the setting of cut-off dates and budgets. These actions contain costs and define the scope of risk for defendants. Although the corollary to that is that, if they're not careful, they find that the set of cases that they thought was 500-strong is, in fact, 1500-strong. It is a judgement call that they make with their underwriters and the defendant company’s risk assessment team.
Yes, recognise that you will need specialist counsel. Also, you need to recognise that ‘unity is strength’. That is the motto for claimants but it is also for solicitors. There has to be a collaborative approach on the claimant’s side. If you are suing some big company with the resources of a small nation state then, in terms of wanting to spread risk or involve people with appropriate skills, you should be looking for skilled friends to help you.
Interviewed by Jon Robins. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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