“1. Damages 2. An order requiring the Defendants to immediately put in hand measures of remediation to eliminate the negative environmental impact from the oil spills. 3. In the alternative, an order that the Defendants pay to the Claimants the value of such remediation work so that the Claimants can put in hand the remediation work themselves. 4. An order that the Defendants indemnify the Claimants with respect to the reasonable costs of any remediation work put in hand by the Claimants. 5. Interest…. 6. Indemnity Costs.”
“Where more than one person has the same interest in a claim— (a) the claim may be begun; or (b) the court may order that the claim be continued, by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.”
“If the persons named as plaintiffs are members of a class having a common interest, and if the alleged rights of the class are being denied or ignored, it does not matter in the least that the nominal plaintiffs may have been wronged or inconvenienced in their individual capacity. They are none the better for that and none the worse. They would be competent representatives of the class if they had never been near the Duke; they are not incompetent because they may have been turned out of the market. In considering whether a representative action is maintainable, you have to consider what is common to the class, not what differentiates the cases of individual members.” [] and “The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you never could “come at justice,” to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.” [] and “There are plenty of other cases which shew that, in order to justify a person suing in a representative character, it is quite enough that he has a common interest with those whom he claims to represent. … All growers have the same rights. They all rely on one and the same Act of Parliament as their common charter.” [] and “… From the time it was first established [the rule] has been recognised as a simple rule resting merely upon convenience. It is impossible, I think, to read such judgments as those delivered by Lord Eldon in Adair v. New River Co., in 1805, and in Cockburn v. Thompson in 1809, without seeing that Lord Eldon took as broad and liberal a view on this subject as anybody could desire. “The strict rule,” he said, “was that all persons materially interested in the subject of the suit, however numerous, ought to be parties … but that being a general rule established for the convenient administration of justice must not be adhered to in cases to which consistently with practical convenience it is incapable of application.” “It was better,” he added, “to go as far as possible towards justice than to deny it altogether.”
“The rule has been framed and adopted for a useful and important object - the saving of the multiplication of actions, with the attendant costs, in cases where one action would serve to determine the rights of a number of persons in a question with another party called as defendant. A series of different actions one after another by different plaintiffs is to be no longer necessary in cases where numerous persons have “the same interest in one cause or matter,” for in such cases “one or more of such persons may sue on behalf or for the benefit of all persons so interested.”
“There is one head of the claim (the seventh) as to which there was not much said in the appellant's argument, which is no doubt in a different position; I mean a claim by each of the plaintiffs for repayment to him of alleged excess charges for six years for market accommodation. This is a subsidiary matter, and it is not a claim made “on behalf of all other the growers of fruit, flowers,” &c., to which alone the appellant's objection to the representative character of the action applies. The real cause or matter in dispute and raised by the statement and claims is the nature and extent of the privileges of the plaintiffs to the use of the market stands, and to the effect of determining this the action is competent. This being so, it will be found convenient to both parties to have the subsidiary matter of excessive charges made against each plaintiff determined in the same cause; and I do not see any ground for holding that it is incompetent to do so.”
“… it is not, in my judgment, the law that claims for debt or damages are automatically to be excluded from a representative action, merely because they are made by numerous plaintiffs severally or resisted by numerous defendants severally. The rule is more flexible than that.”
“So there were here 12 contracts, one by each of the underwriting agents and the insurance companies which signed on their own. But all 12 were on identical terms, save for the individual proportions of the risk; and to my mind the leading underwriter clause can be taken to provide that, at least for some purposes, they are to be considered as one contract. If there were a defence of misrepresentation, and perhaps also non-disclosure, it might be argued that an individual contract could be avoided; and in that event the leading underwriter clause would go with it. So too if there were a defence of lack of authority to sign. But no such issue appears likely to arise in this case. For all practical purposes this is one claim upon one contract, which the shipowners have an interest in pursuing and the insurers all have the same interest in resisting, subject only to one point. Some of the insurers may, in certain circumstances, wish to resist the claim on a ground that is not available to others: this is that their obligation is not situate here, and that the leading underwriter clause does not have the effect that the obligations of all must be taken to be situate in the same place as that of the leading underwriter. I do not regard that circumstance as showing that all the insurers do not have "the same interest" in the English action, or that it is not within the rule; all defend because they say that the benefit of their obligation has not been transferred to the shipowners, and the foreign insurers merely have, or may have, an additional ground for arguing that defence. As I have said, I have no qualms about a proceeding which allows that ground to be argued on their behalf by others, if they do not wish to join in the action.”
“There may well be cases in which it would not be appropriate to allow the use of the representative action procedure where there are disputes as to the quantum of liability, if liability is established, of persons who come into the action by representation. In such a case, the discretion allowed by the rule enables the court to forbid the continuance of the representative action. But in the present case, where there is no suggestion of any argument as to what are the respective proportionate shares, and where each of the insurers has expressly agreed to accept liability for its respective share "for all decisions taken against the leading company" there appears to be no good reason, even by way of technicality, why the court should hold itself to be precluded from giving effect, by way of judgments, to the various insurers' agreements to accept liability for their respective shares. It has been suggested for the defendants that injustice might be caused by the application of the rule, since one or more of the insurers might wish to contend that it had no valid or binding contract with the assured because, for example, it had not given authority to an agent who had purported to contract on its behalf, or there had been fraud or misrepresentation inducing the making of the contract. There is no suggestion that in fact any such contention exists in the present case. But if it were to exist, there is ample protection in Ord. 15, r. 12 against the risk that a judgment could be enforced against an insurer who was not liable, without its having been given a proper opportunity to have its objection heard.”
“… do not … establish, in my judgment, …, that an action will not lie in appropriate cases against a representative defendant class for debt or debts provided these can be directly associated within an identified group and can themselves be defined within the framework of the contractual association established.”
“The fact that … the rule is to be “treated as being not a rigid matter of principle but a flexible tool of convenience in the administration of justice” cannot mean that the “same interest” test can be abrogated.”
“The provisions of the civil procedure rules, particularlyCPR Rule 1.2 , emphasise the need to interpret the phrase "the same interest" and to apply the provisions ofCPR Rule 19.6 both flexibly and in conformity with the overriding objective. Accordingly there are three questions: do the individual claimants on the one hand and the Relevant Members as defined on the other have (1) a common interest, (2) a common grievance and (3) is the relief sought by the claimants in its nature beneficial to the Relevant Members?”
“(3) The question of whether and the extent to which parties have the same interest can only be answered by reference to the facts of the particular case, albeit that it will be necessary to determine, amongst other things, whether the representing party and the represented parties in effect have the same cause of action or liability as the case may be, subject of course to the relevant facts ultimately being found. (4) As in the Duke of Bedford case, it will be inappropriate, before the final judgement on the issues resolved in relation to the represented parties, for the Court to decide the issues or, indeed, to indicate in some obiter way what the answer may well be. That is simply because the Court will not have heard full argument and will only have unchallenged written evidence before it at that stage. (5) Once it is clear that there is the same interest, the Court has a discretion whether to allow the relevant party to act or to continue to act in a representative capacity. Indeed, the Court retains a discretion even at and after the judgement to direct that a judgement is not binding or is not to be enforced. Thus, it is conceivable that, if in the judgement findings of fact or other law are such that it emerges that one or more of the represented persons does not have the same interest, the judge could well direct that the judgement is not to be enforced against them. (6) The overriding objective must always play an important part in the exercise of the discretion. Thus the saving of cost and time to the parties, and indeed to the court, must be factors in appropriate cases to take into account. (7) Limitation defences could be a factor to take into account depending obviously on when the representative character is sought to be imposed. In general, however, it would be open to a defendant to run a limitation defence in relation to represented parties who were not actual parties to the litigation. If such a defence was established against certain persons, it would be a wholly exceptional case in which the judge allowed the judgement to be enforced by a person who had not been a party to the claim and against whom the limitation defence had been established.”
“As Uff observed, two different sorts of interest may arise in the multi-party proceedings context. One is the true collective interest, where all those concerned share a single common interest (eg pollution; anti-discrimination). The second arises where individual substantive rights happen to be shared by several persons relating to a single event or similar transactions (eg personal injury claims following mass disasters; product liability claims). The procedural process suitable for administering one such sort of claim is not necessarily suitable or most appropriate for administering the other. Accordingly CPR Pt 19provides two principal devices for handling multiparty actions. One is the representative action. The other is the group litigation order …”
“CPR r 19.6 requires the parties in question (in this case the claimants and those whom they purport to represent) to have “the same interest”
“A second difficulty is that the members of the represented class do not have the same interest in recovering damages for breach of competition law if a defence is available in answer to the claims of some of them, but not to the claims of others: for example, if BA could successfully run a particular defence against those who had passed on the inflated price, but not against others. If there is liability to some customers and not to others they have different interests, not the same interest, in the action.”
“75. Once it is understood that the claimants that Mr Lloyd seeks to represent will all have had their BGI—something of value—taken by Google without their consent in the same circumstances during the same period, and are not seeking to rely on any personal circumstances affecting any individual claimant (whether distress or volume of data abstracted), the matter looks more straightforward. The represented class are all victims of the same alleged wrong, and have all sustained the same loss, namely loss of control over their BGI. Mr Tomlinson disavowed, as I have said, reliance on any facts affecting any individual represented claimant. That concession has the effect, of course, of reducing the damages that can be claimed to what may be described as the lowest common denominator. But it does not, I think, as the judge held, mean that the represented claimants do not have the same interest in the claim. Finally, in this connection, once the claim is understood in the way I have described, it is impossible to imagine that Google could raise any defence to one represented claimant that did not apply to all others. The wrong is the same, and the loss claimed is the same. The represented parties do, therefore, in the relevant sense have the same interest. Put in the more old-fashioned language of Lord Macnaghten inDukeof Bedford v Ellis[1901] AC 1 , para 8, the represented claimants have a “common interest and a common grievance” and “the relief sought [is] in its nature beneficial to all”. ” 76. I have considered whether there might be injustice in allowing Mr Lloyd to represent individuals who may have sustained significant pecuniary loss or distress as a result of the data breach alleged. But since the limitation period has now expired, and represented claimants could, at least in theory, seek to be joined as parties if they wished to claim additional losses, I cannot see that there is any injustice in the pleaded claim proceeding as a representative one. 77. The judge explained at paras 89–93 of his judgment why he thought that the breaches and the losses would vary across the represented class. He was concentrating on the amount of data removed without consent and the differing impact on individual represented claimants. … In my view, however, this approach did not pay adequate regard to the way that Mr Lloyd put his case. If individual circumstances are disavowed, the representative claimant could be entitled to claim a uniform sum in respect of the loss of control of data sustained by each member of the represented class. The sum will be much less than it might be if individual circumstances were taken into account, but it will not be nothing for the reasons I have given in answering the first issue. It will take into account, at least, the facts of the tort proved against Google generically, and the effect, in terms of loss of control of personal data, that the breaches would have on any person affected by Google's unlawful actions. and “the relief sought [is] in its nature beneficial to all”. ”
“… It was said that the growers are so fluctuating and indefinite a body that it is impossible to tell who is or who is not a grower, especially in these modern times when there are such improved facilities for carriage of goods. I cannot say that I am much impressed with that difficulty. It seems to me that the description of the persons apparently intended to be favoured by the Act is sufficient for all practical purposes. It may be difficult or impossible to compile a catalogue of growers. But there cannot, I think, be much difficulty in determining whether a particular person who claims a preferential right to a vacant stand in the market is a grower or not. …”
“62. In my judgment, Emerald's case for a representative action, whether as originally pleaded or as proposed to be amended, is fatally flawed. The fundamental requirement for a representative action is that those represented in the action have “the same interest” in it. At all stages of the proceedings, and not just at the date of judgment at the end, it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having “the same interest” as Emerald. 63. This does not mean that the membership of the group must remain constant and closed throughout. It may indeed fluctuate. It does not have to be possible to compile a complete list when the litigation begins as to who is in the class or group represented. The problem in this case is not with changing membership. It is a prior question how to determine whether or not a person is a member of the represented class at all. Judgment in the action for a declaration would have to be obtained before it could be said of any person that they would qualify as someone entitled to damages against BA. The proceedings could not accurately be described or regarded as a representative action until the question of liability had been tried and a judgment on liability given. It defies logic and common sense to treat as representative an action, if the issue of liability to the claimants sought to be represented would have to be decided before it could be known whether or not a person was a member of the represented class bound by the judgment. … 65. In brief, the essential point is that the requirement of identity of interest of the members of the represented class for the proper constitution of the action means that it must be representative at every stage, not just at the end point of judgment. If represented persons are to be bound by a judgment that judgment must have been obtained in proceedings that were properly constituted as a representative action before the judgment was obtained. In this case a judgment on liability has to be obtained before it is known whether the interests of the persons whom the claimants seek to represent are the same. It cannot be right in principle that the case on liability has to be tried and decided before it can be known who is bound by the judgment. Nor can it be right that, with Micawberish optimism, Emerald can embark on and continue proceedings in the hope that in due course it may turn out that its claims are representative of persons with the same interest.”
“In my judgment, the only applicable test is that “it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having” the same interest as Mr Lloyd “[a]t all stages of the proceedings, and not just at the date of judgment”
“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen the issue.”
“Even if the cause of action is different, the second action may nevertheless be struck out as an abuse under the rule in Henderson v. Henderson where the claim in the second action should have been raised in the earlier proceedings if it was to be raised at all. In considering such an application: a) The onus is upon the applicant to establish abuse. b) The mere fact that the claimant could with reasonable diligence have taken the new point in the first action does not necessarily mean that the second action is abusive. c) The court is required to undertake a broad, meritsbased assessment taking account of the public and private interests involved and all of the facts of the case. d) The court's focus must be on whether, in all the circumstances, the claimant is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. e) The court will rarely find abuse unless the second action involves "unjust harassment" of the defendant”. action involves "unjust harassment" of the defendant”
“177. The parties have now been conducting these proceedings for over two years since December 2017, including three CMCs and most recently a four-day hearing before the Court in October 2019, culminating in the Court’s Judgment dated2 March 2020 . 178. At no point prior to the Defendants’ first letter dated10 March 2020 … did they ever suggest that any of the original [Claim Form or statements of case] failed validly to include the Claimants other than Mr Jalla and Mr Chujor (the Other Claimants and Community Claimants) as represented in these proceedings. Indeed, they positively asserted the contrary (see below) when seeking to challenge jurisdiction. … 179. At the absolute highest, the Defendants hinted at (but did not develop) a different argument that the Other Claimants and Community Claimants might not share the same interest as Mr Jalla. 180. To be clear, the argument hinted at presupposed that Other Claimants and Community Claimants were represented in these proceedings, and complained that they lacked the requisite identity of interest in the claim (which is a separate point on which the Defendants are wrong for the reasons set out