Education Briefing - Group Litigation Orders will not be sanctioned by the court when ordinary case management powers are sufficient (England and Wales)

In the recent case of David Hamon and ors v University College London, the High Court held that the thresholds for a group litigation order (“GLO”) had been met but refused to grant a GLO because it did not consider a GLO would “help to promote fairness, save costs or allow the claims to be dealt with in a timely and efficient manner”. Applying the Overriding Objective, the court considered that its flexible case management powers were sufficient to manage the litigation instead.

This decision is of particular interest to the education sector because a large number of other universities have been threatened by similar proceedings by the claimant law firms in this case. More broadly however large-scale, multi-party litigation is becoming increasingly prevalent in England and Wales and represents a major financial and reputational risk for institutions. It is also a developing area of law meaning that while each judgment helps to shape the law and give insight as to the court’s approach, it can be a difficult area for litigants to navigate.

Critically, the court has the final say on whether a GLO is granted or not. The UCL case is a reminder that the courts will not rubber-stamp applications for a GLO iey consider that their ordinary case management powers are sufficient. Even where the requisite thresholds have been met, parties to group litigation will need to carefully consider whether the same end result of a GLO can be better achieved via other means, because they may be required to conduct the litigation without a GLO regardless of whether that is their preference.

Background

Over 5,000 claimants (current and former students at University College London (“UCL”) have brought a claim across two claims forms, against UCL for damages for breach of contract in respect of its alleged failure to provide in-person tuition and/or access to facilities during the academic years impacted by the COVID-19 pandemic and industrial action. The claimants applied for a GLO. Last year the High Court adjourned the claimants’ application and stayed the group action for eight months so that alternative dispute resolution (“ADR”) could be explored. See our earlier briefing for further information on that decision.

ADR has not been fruitful and so the application for a GLO returned to the High Court and Senior Master Cook was recently tasked with deciding whether it should succeed.

The court’s decision and reasoning

In reaching his judgment Senior Master Cook decided that the thresholds for a GLO were made out because the claims did indeed give rise to commons issues of fact or law:

1. the claimants were all students of UCL who alleged their studies were impacted by industrial action and Covid 19; and
2. all claimants contracted on UCL’s standard contractual terms, and all claims would involve the interpretation of those terms.

Thus, Senior Master Cook concluded that these issues would sufficiently define the group for the purposes of considering whether they should be case managed as group litigation. However, he also concluded that it would not be appropriate to make a GLO in this case and that, instead, the litigation would be best resolved by the creative use of the court’s existing case management powers. Key points of the court’s reasoning included:

• The litigation currently involves over 5,000 claims represented by two firms of solicitors. In those circumstances Senior Master Cook concluded that there were unlikely to be a substantial number of further similar claims or other groups of claimants represented by other solicitors

• The court could also see little advantage in establishing a group register (as a GLO would) and surmised that there were other administrative ways the parties could achieve this

• After considering the application of the Overriding Objective, the court considered that a GLO would not help to promote fairness, save costs or allow the claims to be dealt with in a timely or efficient manner. In particular, the court noted that by the close of the hearing, there was very little difference in substance between the parties’ case management provisions and that the parties were agreed there should be a trial of a handful of test cases covering issues of liability and quantum in 2026

• The court was of the view that decisions in test cases on common contractual terms could bind other claimants in these proceedings and that this could be achieved by bespoke case management directions if necessary

• Claimant specific issues relating to individual damages claims could never have been resolved by the trial of generic GLO issues in any event. Those would need to be considered on a case-by-case basis irrespective of the approach to group litigation case management

• The court ordered that a cost sharing provision (CPR 46.6) be imported from the GLO procedure into the case management directions. This means that group litigants will have several liability for an equal proportion of common costs incurred; and

• The overall costs of the litigation are expected to be substantial. The parties agreed that the test cases will be subject to costs management by the court.

Comment

• In the world of group litigation, it remains difficult to predict how the courts will exercise their discretionary powers as to whether to case manage the proceedings with or without a GLO

• In reaching his decision Senior Master Cook reflected on the origins of the GLO regime which was introduced following Lord Woolf’s report on “Access to Justice”. But Senior Master Cook said, “the world is a now very different place to that which existed [then]. In particular technological and computing developments have revolutionised the way in which lawyers and judges work and manage cases”.

• In this case, even though the relevant thresholds had been met, the court would not sanction a GLO. UCL resisted the application on the basis that the GLO procedure was inappropriate and unnecessary – a position the court agreed with.

• In contrast a recent Court of Appeal judgment which considered the circumstances in which it is permissible under the CPR for multiple claimants to bring claims in one claim form and one set of proceedings, the Master of the Rolls (Sir Geoffrey Vos), reflected that GLOs are a very useful and desirable procedure in many cases. He commented that it is valuable for parties and the court to consider in every case started by multiple claimants by a single claim form to consider whether it would be appropriate for a GLO to be applied for (see our briefing for further information on that case)
• As the law relating to group litigation continues to develop and adapt, it is important that parties actively consider the most appropriate procedural route to bring the litigation and engage with each other where possible to agree

• The judgment reflects the court’s flexible case management powers. Even if the court was not content to grant a GLO, it was happy to import procedural mechanisms from the GLO procedure - and significantly, the costs sharing mechanism. We anticipate that the court will continue to “pick-n-mix” from the procedural options open to it to ensure that litigation is managed as fairly and efficiently as possible. Parties should consider this when seeking to agree case management directions.