United States (U.S.) Class Actions and United Kingdom (UK) Collective Actions




Key Contrasts

History of Class Action Mechanisms

  • Group litigation existed in some form early on in UK’s history but never became well established.
  • Two of the three available class action mechanisms—group litigation orders (“GLOs”) and claims before the Competition Appeals Tribunal—were not established until the last several decades.
  • Cases are increasing, but they are still not common.
  • No extensive body of caselaw yet exists.
  • Class actions in the United States go back 200 years. See West v. Randall, 29 F. Cas. 718 (R.I. 1820).
  • Modern class action era began in 1966, with amendment to Federal Rule of Civil Procedure 23, establishing current mechanism and providing that all class members are bound unless they opt out.
  • Since 1966, class actions have proliferated. Federal courts alone review hundreds of class action cases and settlements annually, and companies spend billions annually on class action defense.
  • The U.S. has a much more well-established history of class actions than does the UK.
  • Class actions are far less common in the UK than in the U.S.
  • Caselaw, precedent and procedural rules are far more developed in the U.S. than the UK.

Current Landscape of Class Action Mechanisms

Several types of multiparty litigation or collective actions:

  • Representative actions: opt-out, high threshold must be met under “same interest” test.
  • Group litigation orders (“GLOs”). Opt-in. Easier to bring, requiring common or related issues of fact or law.
  • Multiparty competition law claims under Competition Act 1998 and Consumer Rights Act 2015, under the Competition Appeals Tribunal (“CAT”) Rules. Requires identifiable class, common issues and suitability.

Multiple vehicles for class, collective and representative actions at the federal and state level, including:

  • Traditional opt-out class actions. High threshold to certify (ability to establish varies by case), but substantial discovery and litigation permitted prior to certification.
  • Opt-in class or collective actions. Usually a lower threshold to conditionally certify.
  • Other representative actions (by government agencies, state attorneys general, private attorneys general or others). This category is highly specialized and agency/statute specific, so not addressed further below.
  • The U.S. has well-established history and caselaw, whereas class actions are relatively new in the UK.
  • The procedural hurdles to bringing a class action in the UK are higher.
  • In the U.S., plaintiffs generally have the right to a jury trial.

Role of Counsel

  • Solicitors handle the day-to-day running of the case and instruct barristers to argue the case in court.
  • GLOs often have multiple law firms representing different claimants. Usually, a lead firm of solicitors is designated to take charge of advancing the common issues and to be the point of contact for the court. The lead solicitors generally instruct a shared counsel team.
  • Ligation is largely planned and driven by counsel, with scheduling orders and deadlines set and/or approved by the court.
  • In class actions, attorneys for the lead plaintiff(s) generally represent all class members. Lead or named plaintiff(s) can choose their own counsel, but such counsel must eventually be approved and appointed by the court to serve as lead counsel.
  • Both systems allow for designation of lead counsel, but in the U.S. the named plaintiffs generally make the determination, whereas in the UK it will depend on the nature of the collective action, but the opt-in nature of group litigation orders (GLOs) means that numerous plaintiffs may be involved in the determination.
  • UK class actions maintain the solicitor/barrister distinction in terms of roles and responsibilities.

Litigation Funding and Its Impact

  • Third-party funding is permitted under English law and is common in the context of representative actions.
  • Commercial funders increasingly fund claims in return for a share of proceeds.
  • Funders are not permitted to exercise undue control but are permitted to play some role in the proceedings.
  • On the rise, but ethics rules and common law prohibit a funder from exercising control of the litigation. Some jurisdictions also place additional restrictions on how and when third-party funding may be used.
  • A handful of jurisdictions outlaw third-party funding, though some courts have begun to relax the application of such prohibitions.
  • Litigation funding in the UK is more common, accepted and established. In the U.S., litigation funding is beginning to see wider acceptance, but traditional barriers of maintenance and champerty remain in many jurisdictions, and there are ethical concerns regarding attorney conflicts and the duty of loyalty to clients, as well as interference with attorneys’ professional judgment.

Tolling of Statute of Limitations for Absent Class Members

  • This type of proceeding impacts whether absent class members’ claims may be tolled:
  • For CAT claims, the limitation period is paused for all claimants (both opt-in and opt-out) where the Competition Authority investigates or where parties engage in dispute resolution processes—even where a collective proceedings order is not or has not yet been issued.
  • For GLOs and Representative Actions, there does not appear to be any special tolling rules applicable to absent parties’ claims.
  • For federal claims and under certain states’ laws, the filing of a class action tolls the statute of limitations not only for named plaintiffs, but for absent class members as well—at least unless and until class certification is denied or the class is decertified.
  • In the U.S., the filing of a class action tolls the statute of limitations for federal and certain state claims of absent class members; by comparison, this practice is generally only employed in Competition Appeal Tribunal proceedings in the UK.
  • The question of tolling absent members’ claims is of greater consequence in the U.S. because certification proceedings may drag on for years, whereas in the UK the appropriateness of using a collective proceeding is generally determined in a more truncated initial application process.

Striking Class Claims

  • Courts may strike pleadings or portions of a case:
  • Where a party is pursuing or defending a case that has no reasonable prospect of success.
  • Where there would be a waste of resources on both sides if the litigation continued.
  • To prevent proceedings that are an abuse of process.
  • To enforce compliance with the provisions of the relevant rules, orders or directions.
  • Courts are reticent to strike on pleadings.
  • A party must generally demonstrate it is clear from the pleadings that the claims are impermissible or that it is not possible for certification requirements to be met.
  • Claims in the UK are generally more difficult to strike on pleadings than in the U.S.
  • It is easier for a plaintiff to get to extensive class discovery in the U.S.

Bases for Dismissing Claims

  • Preliminary dismissal of a claim in the UK is referred to as a “strike out.”
  • Standing: Even at the outset, other class members must have the same interest as the named plaintiff.
  • Personal jurisdiction: Not generally a basis for dismissing a claim, as personal jurisdiction is a fairly broad concept.
  • Class action waivers: Not generally permissible but might be considered on a case-by-case basis.
  • In federal court, preliminary dismissal of individual claims is handled through a motion to dismiss, while dismissal of class claims may be handled through a motion to dismiss or motion to strike, depending on the jurisdiction.
  • Standing: Standing at the preliminary stage focuses exclusively on the named plaintiffs. Whether putative class members have standing is typically deferred to the class certification or merits stage.
  • Personal jurisdiction: Parties are generally only subject to the jurisdiction of a court in the United States where they have had a sufficient level of contact with that specific jurisdiction. Defendants can argue the court lacks personal jurisdiction over the claims at issue. Usually, the defense focuses on named plaintiffs’ claims, but some courts have struck claims of absent out-of-state class members for lack of personal jurisdiction as well.
  • Class action waivers: May be a basis for dismissal.
  • The UK has a strict standing requirement that may serve as a basis for dismissing or striking out class action claims.
  • Personal jurisdiction and class action waivers may be grounds for dismissing class claims in the U.S. but are unlikely to serve as grounds in the UK given the issues surrounding the efficacy of alternative dispute resolution clauses in consumer contracts.
  • Other bases for dismissing are fairly similar, including, statute of limitations, insufficient service of process, insufficient pleading, failure to state a claim, failure to administratively exhaust and lack of subject-matter jurisdiction.

Class Certification/Application

  • Generally, there is an initial application process to determine whether the case may proceed as a class.
  • No extensive disclosure or discovery is generally permitted unless and until application is granted.
  • There are different procedures for application depending on which type of collective proceeding is sought:
  • GLO: Claimant or defendant can apply for a GLO at any time, or the court may make an order of its own initiative, where there are common or related issues of fact or law. There will generally be a hearing, allowing the opposing party to raise objections and file evidence.
  • Representative Action: A claim begun as a representative action may continue as one unless the court orders otherwise. Alternatively, a claimant may apply to the court after the claim has been issued, requesting permission to continue the claim as a representative action. “Same interest” test must be met.
  • CAT: The proposed class representative applies for a Collective Proceedings Order and makes their case at an approval hearing. Requires identifiable class, common issues and suitability.
  • Lengthy, expensive and demanding discovery is generally permitted on certification issues prior to the class certification determination.
  • Certification is generally determined following extensive briefing, hearings and oral arguments.
  • Requirements to certify an action vary somewhat:
  • Traditional opt-in claims, such as those under Federal Rule of Civil Procedure 23, require plaintiffs to provide evidence demonstrating that the class meets certain requirements, including, numerosity, commonality, typicality, adequacy and one of three class types.
  • The certification process for opt-in claims is generally governed by statute—the classic example is FLSA class actions, which allow plaintiffs to collectively pursue wage-and-hour claims if they can provide evidence demonstrating that they are “similarly situated.”
  • Unlike the U.S., which allows lengthy discovery and proceedings to determine whether a class should be certified, the UK requires claimants to engage in an initial application process prior to embarking on discovery. UK courts are generally very wary of perceived “fishing expeditions,” and so claimants will generally need to show their ability to meet the test for a collective proceeding up front when they apply for one.


  • Once the case is permitted to proceed, there is a disclosure process between the parties:
  • The court issues disclosure orders.
  • No deposition process, only witness statements.
  • Witness preparation for testimony (at trial) is strict: witnesses may be educated about the process but may not rehearse or be coached on content.
  • Prior to class certification, named plaintiffs are generally entitled to extensive discovery to attempt to prove their class should be certified, including:
  • Discovery requests by parties.
  • Written discovery and extensive document discovery.
  • Extensive declaration collection.
  • Extensive depositions.
  • Often including expert discovery (written and depositions).
  • The U.S. allows for much more extensive and adversarial discovery than does the UK.
  • The U.S. process includes extensive depositions and declarations not provided for in the UK.
  • Witness preparation in the UK is stricter and more limited than in the U.S. with a strict ban on “witness coaching” and additional procedural safeguards in relation to witness statements.

Role of Experts

  • Traditionally viewed as independent, with duty to the court and not a particular party.
  • However, parties in class actions can generally call their own experts.
  • Experts typically participate in meetings and file a joint report indicating areas of agreement and disagreement.
  • Usually used in class cases by each party.
  • There may be multiple experts, depending on the claims and damages at issue, including economists, statisticians and/or other industry- or issue-specific experts.
  • Experts issuing reports are deposed and will testify and be cross-examined at trial.
  • It is common to hire two sets of experts: one set as a consultant, with whom all communications remain privileged, and the second as a testifying expert.
  • There are often multiple types and layers of experts relied upon in U.S. cases.
  • Expert reports, depositions and testimony are often more extensive in the U.S. than in the UK, which typically requires the filing of a joint report indicating areas of agreement and disagreement, and are subject to the court’s discretion.

Test for Pretrial Disposition

  • The High Court and CAT have the power to grant summary judgment.
  • The Court may give summary judgment against a claimant or defendant on a claim or a particular issue if:
  • Claimant has no real prospect of succeeding on the claim or issue or defendant has no real prospect of successfully defending the claim or issue; and
  • There is no other compelling reason why the case or issue should be disposed of at a trial.
  • Motions for summary judgment in federal courts may be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
  • A party must support its assertion with record evidence or a showing that the materials cited do not establish a genuine dispute.
  • Either party may file a motion for summary judgment, though there may be some limitations on timing. In particular, plaintiffs may be precluded from seeking class certification after obtaining a favorable ruling on the merits of their claim because it could unfairly allow absent class members to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one.
  • The U.S. focuses on whether dispute remains, and the UK focuses on whether there is a real prospect of success on the claim or defense.

Bellwether Trials

  • No independent mechanism for test claims in the UK, but the High Court may select a test claim from the group register. A party may also seek a test case.
  • Alternative to class case or traditional joinder of claims.
  • A sample case or set of cases are tried and used as a basis for resolving remaining similar cases.
  • Holdings can create collateral estoppel effect.
  • In the U.S., litigants may have more control over the use of bellwether trials, and the use and effect of such trials is better established.


  • The general rule in English law is that damages are compensatory in nature.
  • Punitive and exemplary damages are available in principle but are very rarely awarded.
  • Statutory damages are not generally applicable
  • Representative actions are unsuitable for individualized loss or damage claims, but GLOs may allow individualized proceedings for damages.
  • All types of damages may be available under U.S. law, depending on the claim, jurisdiction and statutes at issue. Punitive damages are available, but the bar for awarding them is very high.
  • Damages may be available under common law and/or statute, depending on the claims at issue.
  • Individualized proceedings on damages might be permissible. Bifurcation of trial on liability and damages may also be an option.
  • Damages are more limited in the UK than in the U.S., particularly punitive, exemplary and statutory damages.
  • The use of individualized damages proceedings is more fluid in the U.S. and may be determined late in the litigation. In the UK, the question tends to be more limited up front, based on whether a GLO is being used and whether all issues are proceeding collectively or on limited issues with some issues reserved for individual determination.

Litigation Costs

  • Generally, a losing party will be ordered to pay the successful party’s legal costs. However, the court has very broad discretion as to costs awarded and may depart from the general rule.
  • GLO claimants are generally liable for individual costs and severally liable for an equal share of the common costs of the group. In representative actions, members are not individually liable for costs.
  • Each party generally bears its own costs, with some exceptions created by statute, procedural rules or caselaw.
  • A major difference between the UK and the U.S. is that in the UK, the loser generally pays costs and fees, whereas in the U.S. each party generally bears its own costs.

Attorneys’ Fees

  • Plaintiffs may generally use conditional fee agreements (CFAs) or damages-based agreements (DBAs). CFAs provide for payment of fees under certain circumstances, usually if the client wins. DBAs provide for payment of a specified percentage of the damages recovered (not exceeding 50%).
  • Contingency fee agreements are not permitted for opt-out collective actions under the CAT.
  • Plaintiffs’ attorneys are typically paid on a contingency fee basis, meaning the funds come out of the plaintiffs’ share of any recovery. However, regardless of the basis, the court must approve of any award of fees to plaintiffs’ lawyers.
  • Defendants’ attorneys are generally paid by the hour or on a flat-fee basis.
  • Both countries allow for contingency fees, though the percentage of such fees is often limited in the UK by conditional fee agreements, and plaintiffs’ attorney fee awards in the U.S. must be approved by the court.


  • Court approval is not generally required, except for under the CAT. There, an opt-out collective settlement regime exists, and approved settlements are binding on all members of the class unless they expressly opt out.
  • Court approval of class settlements is generally required.
  • Objections to proposed class settlements can be filed by class members and nonclass members alike.
  • Unlike in the UK, approval of class settlements in the U.S. can be a lengthy process. Fed. R. Civ. P. 23(e) obligates courts to approve class action settlements to ensure settlements are “fair, reasonable and adequate.”

Rule 68/Calderbank Offers

  • Calderbank (Part 36) offer:
    • Details of rejected offer are filed with the court in a sealed document until proceedings conclude.
    • If rejected offer was at least as favorable as judgment, court orders offeree to pay all costs of both parties after offer date.
    • Costs that are affected are generally broader than in the U.S., plus the fact that the cost-shifting rule is impacted makes the offer particularly powerful.
  • Rule 68 allows defendant to make a formal offer of judgment. If the unaccepted offer is more favorable than the judgment ultimately secured by the plaintiff, the plaintiff must pay the costs incurred after the offer was made.
  • A key downside: If the offer is accepted, judgment is generally entered against the offeror.
  • Without-prejudice offers in the UK allow for a broader range of costs to be impacted.
  • On the other hand, due to extensive discovery costs in the U.S., a Rule68 offer can create significant pressure/leverage.


  • Permission to appeal must be granted by either the court giving judgment or the Court of Appeal. Strict time limits apply.
  • Despite a right of appeal from case management decisions, such appeals are rarely successful due to the lower courts’ broad discretion.
  • Class certification decisions in the federal system are not final judgments and thus are not appealable as of right until after final resolution of all claims.
  • Appellate courts have broad discretion to grant or deny a motion seeking an interlocutory appeal of a class certification ruling.
  • U.S. trial courts have broad discretion to grant or deny class certification; however, they are subject to judicial review either immediately as a matter of discretion or at the end of the case as a matter of right.
  • In the UK, there is no automatic right to appeal, and it is subject to judicial discretion.