ENGLAND & WALES Trends and Developments Contributed by: James Lynch, Maltin PR
evidence to undermine the allegations being made. Litigation Funding and Collective Actions The London litigation market continues to see extensive activity in the collective action space. This level of activity has continued despite the Supreme Court judgment in PACCAR and others v Competition Appeal Tribunal and others, which threw the litigation funding market into turmoil in July 2023. The Supreme Court found that liti- gation funding agreements that entitle funders to payment based on the quantity of damages recovered during a case are damages-based agreements, with the additional regulatory over- sight that this entails. Legislation introduced by the previous govern- ment in March 2024 sought to deal with the fall- out from the PACCAR judgment, however this has been shelved by the new Labour govern- ment, leaving the issues in play. The impact of the judgment was noted in the explanatory notes to the bill: “The Supreme Court judgment rendered LFAs unenforceable. Uncertainty around litigation funding risks a detrimental impact on the attrac- tiveness of the England and Wales jurisdiction as a global hub for commercial litigation and arbi- tration, and on access to justice more broadly.” While the industry waits for further develop- ments on this front, efforts are made to establish alternative forms of funding that permit cases to continue. However, the risks of a technical challenge to funding arrangements makes this a somewhat risky prospect. The government has stated its intention to wait for a report from the Civil Justice Council on litigation funding before drawing up fresh legislation, with the full report expected in summer 2025. In the mean-
time, there is a risk that other jurisdictions which have clearer regimes around litigation funding may otherwise reap the benefits of the sector. Despite issues around funding noted above, col- lective litigation in England and Wales continues to go from strength to strength. The limitations placed on representative actions following the Supreme Court judgment in Lloyd v Google are beginning to be established in lower courts, with the concerns that such actions may no longer be feasible as a result of having to prove common interest proving to be inaccurate. Major cases also continue to develop through the courts, with the litigation regarding the Mari- ana Dam Disaster commencing in October 2024. Claimed to be the largest group action in the world, by both quantum – estimated at GBP33.6 billion – and by number of claimants – over 620,000 – it has seen extensive jurisdictional challenges to get to this point. At first instance the claim was struck out for being “unman- ageable”, before this point was overturned on appeal and the claim permitted to proceed. Should the case be successful, it will mark a watershed moment that highlights the strength of the English courts’ ability to handle complex and wide-ranging cases with a genesis in other jurisdictions. As touched on above, the media plays a vital role in collective actions, both for claimants and defendants. For the former, positive media coverage provides a vital form of third-party endorsement that can assist in supporting paid- for advertising, with a view towards attracting more claimants to a firm’s group. In an increas- ingly competitive market, this can be vital. For defendants, corporate reputations can be heav- ily damaged by collective actions being brought,
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