What you need to know about GLOs (Group Litigation Orders)
GLO proceedings are still relatively uncommon in England and Wales.
Since the GLO process was introduced into the Civil Procedure Rules (CPR) in May 2000, there have only been 111 cases. And according to the list of group litigations kept on the government website, ‘the number of GLOs made has been decreasing year-on-year’. (Pinsent Masons, 2022)
After five orders in 2017, three in 2018, only one GLO was made in 2019, 2020, 2021 and 2022 respectively.
If we are to improve access to justice for all, this needs to change.
Where can we start? With the basics.
What is a GLO?
In short, a GLO is a ‘case management regime’. (Leigh Day, 2022)
It is the mechanism by which the court manages multi-party actions (claims started by a group of people making the same or similar claims against one defendant).
It’s useful when dealing with multiple parties who have been affected by someone else’s conduct but are unable to individually make a claim; for example, they can’t afford to take legal action. When in the GLO, these claims are treated as individual claims.
How does a GLO work?
GLOs operate on an opt-in basis, unlike the US mass-action system which favours an opt-out method.
This means that each claimant has to proactively bring their claim into the GLO, even though the court manages the claims collectively. They can do so by applying to be entered on a Group Register. In comparison, the opt-out procedure allows a party to bring a claim on behalf of an entire group, without the consent or even knowledge of each member in that group.
Once a GLO is made and relevant issued claims have been inputted on a Group Register, any judgement on one GLO issue will apply to all other claims on the Register, unless otherwise instructed by the court.
Any non-GLO issues, like individual amounts of compensation, will be determined in each individual case.
The court has the authority to refuse registration if:
- It’s not convinced that the claim can be managed conveniently alongside the others on the Group Register.
- Including the claim on the Register would have a negative effect on the case management of the other claims.
- It considers it more appropriate that the claims are consolidated.
It is possible to appeal the court’s final decision. CPR 19.12 states that ‘any party who is adversely affected by a judgment or order which is binding on him may seek permission to appeal the order’.
Benefits of a GLO
GLOs have the potential to change how groups of people take legal action. How?
- They facilitate time-efficient and consistent outcomes as judgements from the court are usually binding on all claims within the GLO.
- They avoid multiple disparate proceedings and the risk of inconsistent decision-making because all claims relating to the GLO issue are typically issued in the same management court where the GLO is made, and they’re all overseen by the same managing judge.
- Without a GLO, all the claims would have to be merged at a later date, causing more work and possible delays.
- The GLO will often establish a ‘cut off date’ before which claims proceeding under the GLO should be made. This encourages eligible claimants to join and proceed with action at the earliest opportunity.
- To maintain convenience and aid decision-making, the court may select a particular claim as a test claim, using it as a blueprint to deal with other legal issues and to settle any remaining claims.
- GLOs offer greater flexibility when it comes to legal costs. For example, you’d only be liable for your own share of the costs and the court is ‘able to recognise if the claim of one party is more sizeable than another and can apportion the costs if necessary to protect smaller claims’.
- GLO proceedings can be publicised, according to CPR 19.11, which it is easier for potential claimants to be brought into the group litigation.
Areas in need of reform
However, the system isn’t yet as efficient as it could be. For example
- There is a lack of registration process by which people can easily describe or enter their existing claims.
- It can be difficult for a solicitor to collect the necessary funds from all the claimants participating in the GLO, which can cause delays in court proceedings.
- A majority of claimants are choosing not to participate in the litigation. This not only detracts from access to justice, but it could also lead to a defendant evading the full consequences of their actions. (Leigh Day, 2022)
- As a consequence of GLOs requiring claimants to opt-in, an unreasonably large number of claim forms are being issued. This is a costly first step and could lead to logistical difficulties further down the line.
These issues need to be addressed in order for the GLO process to regain its legal credibility and popularity. For many within the legal industry, the key to this lies in replacing the GLO’s opt-in requirement with an opt-out mechanism.
There is some concern that an opt-out system would lead to an emergence of US-style litigation in England and Wales, causing an increase in unnecessary and time-consuming cases. However, as Shazia Yamin and Claire Powell (2022) discussed: ‘the courts can and should be trusted to weed out any frivolous cases and they have demonstrated their ability to do so by performing their case management role under the GLO regime.’
Volkswagen emissions scandal (2015)
Perhaps the most public, and successful, use of a GLO was in the Volkswagen emissions scandal (also known as Dieselgate) which resulted in an £193 million settlement.
In 2015, EPA (Environmental Protection Agency) revealed that various automobile companies had cheated on emissions tests, concealing the fact their vehicles emitted more pollutants than they claimed. Approximately 11 million cars worldwide had an inbuilt software which produced a different result while they were tested.
Volkswagen, including its Audi, Seat and Skoda brands, was the first manufacturer to get caught. The same Volkswagen group which had previously led a marketing campaign that pushed their diesel cars on the basis that their carbon emissions were low.
91,000 customers opted-in for the GLO. Now they’ll be receiving payments of more than £2,100 each.
The GLO is an effective case management system. It is both a capable mechanism in a headline case and a system which benefits individual claimants. It’s time to pay the GLO some attention, refine it, and break the trend of decline it’s been facing.
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