An important Court of Appeal ruling for mass claims

With the highly anticipated Supreme Court judgment in Lloyd v Google being handed down on Wednesday, the Court of Appeal has recently handed down an important ruling as to the parameters of the English representative action regime.

In Jalla & Chujor v Shell International Trading & Anr [2021] EWCA Civ 1389, the Claimants claimed that Shell was liable for the damage caused by a December 2011 oil spill which allegedly affected over 28,000 individuals and communities that comprise the Bonga Community. Jalla and Chujor pursued Shell for remediation for themselves and on behalf of the Bonga Community. However, the High Court ruled that Jalla and Chujor could not represent the Bonga Community, thereby narrowing the scope of the proceedings to the claims of those two claimants only.

In dismissing the appeal, the Court of Appeal distilled a number of key requirements and limitations to representative proceedings, in particular:

• as the represented parties are bound by the result of the representative action, the Courts will insist that, “for all practical purposes”, the representing claimant(s) must have “the same interest” in the claim as the parties they represent;
• the Court will consider likely defences that could highlight differing interests amongst certain represented claimants;
• the membership of the represented parties must be certain from the outset of the proceedings; and
• any separate proceedings brought by the represented parties (as members of the Bonga Community have done) will not necessarily act as a bar to the proposed representative action. However, the Court will reflect on the factual circumstances and whether the separate proceedings are of secondary importance to the representative action.

Of central importance in this case was that “these proceedings would have to be case-managed and tried as if they were in excess of 28,000 individual claims”. Questions of limitation, damage and causation were integral to the overall issues raised by the proceedings and needed to be addressed on an individual claimant by claimant basis. As such, the Court found that there would be “no saving of time and cost” or “benefit at all in treating this as a representative action: it would become a representative action in name only, and not in substance.”

Accordingly, this is a timely reminder of the limitations of the representative action regime which will be further considered by the Supreme Court shortly in Lloyd v Google.