The High Court (Stuart-Smith J) held that the claimants in a representative action did not satisfy the “same interest” requirement under CPR 19.6(1) and struck out the representative elements of the proceedings, leaving only the personal claims of the two lead claimants. In so doing, it summarised several points from existing authorities on representative actions and added a helpful gloss to the test for whether a represented class can be ascertained with sufficient certainty.

The proceedings were brought by the two lead claimants “and others” in 2017, after an oil spill in Nigeria. “Others” included thousands of individuals and hundreds of communities, all allegedly exposed to the oil spill.

After considering several key authorities, Stuart-Smith J drew together various “salient strands”, including:

  • The “same interest” requirement in CPR 19.6(1) is statutory. It cannot be abrogated by the overriding objective, although it should be interpreted having regard to that objective.
  • The purpose of a representative action is to accommodate multiple parties with “the same interest”, meaning a common interest, based on a common grievance, in obtaining relief that is beneficial to all represented parties. The existence of some common questions of fact or law is insufficient. However, the represented parties’ claims do not have to be identical, provided they are in effect the same.
  • The existence of individual claims, together with the “same interest” claim, does not necessarily render representative proceedings inappropriate. It will depend on whether the additional claims are subsidiary or whether they affect the character of the litigation, effectively making it a series of individual claims.
  • The existence of individual defences affecting some but not all represented parties’ claims may suggest that the action is not really a claim for relief that is beneficial for all, but a collection of individual claims with some common issues.

(Paragraph 60.)

The judge also clarified the test to determine whether a person is in a particular represented class, suggesting that the touchstones should be ability to clearly define the class without internal conflicts, ability to evidence inclusion within the class, whether by self-certification or otherwise, and sharing the same interest in the outcome (paragraph 68).

Applying the relevant principles, the judge found that these were individual claims because each claimant needed to prove that the oil spill caused them damage.

Case: Jalla and others v Royal Dutch Shell plc and others [2020] EWHC 2211 (TCC) (14 August 2020) (Stuart-Smith J).