On 25 July 2023 the Court of Appeal handed down its judgment in UK Trucks Claim Limited v Stellantis NV (formerly Fiat Chrysler Automobiles NV) & Ors [2023] EWCA Civ 875 – the latest addition to the fast-evolving jurisprudence around UK class actions. In this article we summarise the current state of the Trucks Litigation and explore the key implications for future collective proceedings.
Factual background
Last year we reported on the Competition Appeals Tribunal's ("CAT") decision to grant a Collective Proceedings Order ("CPO") to Road Haulage Association Limited ("RHA"), making it the class representative in a major follow-on antitrust action. RHA's application followed the European Commission's 2016 decision that a group of truck manufacturers (known as the "Trucks Cartel") committed "overarching systemic wrong-doing" in breaching Article 101 of the Treaty of the Functioning of the European Union ("TFEU"). In doing so, the CAT preferred RHA's "opt-in" / individual damages formulation to the "opt-out" / aggregate damages proposal of another petitioner (UK Trucks Claims Limited / "UKTC").
The CAT gave the green light to RHA, allowing it to represent the first wholly "opt-in" group in the UK, and pursue what could be one of the UK's largest ever class actions. At the time of that decision a Claimant class of around 18,000 stood to benefit from a pot of damages worth up to £3bn (equating to an average of £10,000 in damages for each over-sold truck).
UKTC appealed the decision. The CAT granted permission in respect of two grounds:
1. The CAT had erred in law in granting a CPO to RHA where there was a conflict of interest between the purchasers of new and used trucks within its proposed claimant class.
2. The CAT had erred in law in failing to consider the possibility of allowing both RHA and UKTC's applications to proceed (thereby avoiding an intra-class conflict.)
The Court of Appeal's decision
Sir Julian Flaux – sitting as a Court of Appeal judge – delivered a judgment with which Lords Justice Snowden and Green agreed. The Court dismissed UKTC's appeal and upheld RHA's CPO, but ordered a significant modification to it.
The Court accepted UKTC's submission that there was a conflict between the purchasers of new and used trucks within RHA's proposed claimant class (where UKTC proposed representing the former only). The question of whether there was a sufficient commonality of issues amongst RHA's claimants had been raised before the CAT, and held to be surmountable by (1) obtaining the informed consent of class members, and (2) active case management. Sir Julian took the opposing view. There was not merely the potential that a conflict of interest would arise in future – but a very real and present one:
1. Some claimants who purchased new trucks attempted to mitigate their losses by re-selling to second-hand buyers.
2. The purchasers of used trucks have a vested interest in establishing that the unfairly high prices were passed on to them.
3. The purchasers of new trucks have an interest in establishing the direct opposite. The cheaper the onward sale of used trucks, the lower the mitigation, and the more those sellers stand to gain from this class action.
4. To complicate matters further – some 40% of RHA's claimant class bought both new and used trucks in the relevant period.
The Court of Appeal ruled that this conflict could and should be resolved now by splitting the claimants into two distinct sub-classes. Sir Julian proposed "the erection of a Chinese wall within the RHA organisation… involving a separate team within the RHA acting for each of the two sub-classes, instructing different firms of solicitors and counsel and a different expert or experts." An appropriately worded notice would also need to be sent to class members, setting out the nature and extent of the conflict and how RHA proposes to resolve it. The CAT will need to approve RHA's proposal.
The Court was also of the view that a "different funder will need to be involved for one of those sub-classes, given that the conflict potentially extends to funding." More on this below.
Comment
The decision should be welcomed by UK consumers who will, in the fullness of time, benefit from the seriousness with which the judiciary appears to be progressing class action jurisprudence. RHA's "opt-in" model has triumphed over "opt-out" in the Trucks Litigation, but the Court of Appeal stressed (following its own decision in Le Patourel) that there is no presumption in favour of "opt-in". We have seen, for example, that "opt-out" may be more appropriate where there is a "gargantuan" class, as in Merricks v Mastercard and Gutmann v Apple Inc. (and ors). For the time being, it is possible for UK consumers to retain the benefit of either model.
Whilst this is a positive step for the Trucks claimants, however, their (now secure) class representative may have left the Court of Appeal with less clarity than it hoped for. The requirement to split its claimant class in two is undoubtedly a bump in the road for RHA, which now faces the unenviable task of instructing a separate law firm, expert and litigation funder to assist one claimant sub-class, and to propose appropriate information barriers for the CAT's approval. Spare a thought too for Therium, the proposed litigation funder, which stood to recover 6% of damages should they exceed £3bn, but whose spoils must now be shared with a new backer.
Therium's concerns on reading this judgment may have been dwarfed, however, in light of the Supreme Court's decision on a separate Trucks application on 26 July 2023 (the day after the Court of Appeal's judgment.) By a 4 to 1 majority, the Supreme Court held that RHA's Litigation Funding Agreement with Therium is in fact a Damages-Based Agreement, and therefore unenforceable (per Section 58AA of the Courts and Legal Services Act 1990). We will provide fuller commentary on the Supreme Court's decision in due course – but suffice to say now that RHA and Therium have been dealt two potentially significant blows in as many days.
This ruling also begs the question hinted at by UKTC's Counsel in submissions: if RHA is required to split the claimant class into two sub-classes, each requiring separate legal representation and funding arrangements, why can't UKTC represent one of them?
The Court of Appeal maintained that two class representatives would be "undesirable", and that "two completely different expert methodologies would appear to be a recipe for confusion and unnecessary expense." While this is undoubtedly true, we have some sympathy with UKTC's position – particularly where RHA has now been ordered to find a new expert for one of its sub-classes. There is no guarantee that RHA's two experts will find common ground when finalising their damages methodologies, which may lead to the same "confusion and expense" the Court of Appeal is purportedly hoping to avoid.
The Trucks Litigation rumbles on, and we await RHA's updated proposals and the CAT's consideration of the same.
