Mishcon de Reya page structure
Site header
Main menu
Main content section
Curved abstract structure

Commission Recovery representative action on track for trial as Supreme Court refuses permission to appeal

Posted on 10 May 2024

In encouraging news for the continuing development of the representative procedure as a means of collective redress in England & Wales, the Supreme Court has rejected attempts to appeal in Commission Recovery Limited v Marks & Clerk LLP & Anr. The Court of Appeal's earlier judgment unanimously confirmed that the representative action should be allowed to proceed to trial on the basis that all members of the relevant class held the 'same interest' in the claim.

The case is the first concerning the representative procedure to come before the Supreme Court since its landmark ruling in Lloyd v Google (2021), and the decision not to grant permission to appeal suggests that the highest court in the land is comfortable that, at least in this case, its decision has not been misunderstood.


The claim concerns allegations that the defendant, a firm of patent and trademark attorneys, received secret commissions in return for referring their clients to a renewal service provider. The claimant commenced proceedings pursuant to CPR 19.8 (then 19.6) as a representative of the defendant's current and former clients, for the amount of the commission received. CPR 19.8 provides that, where more than one person has the "same interest" in a claim, the claim may be begun by one or more of the persons who have the same interest as representatives of any other persons who have that interest.

However, the defendants contended that the claimant should not be permitted to act as a representative on the basis that the 'same interest' requirement was not satisfied in this case. The defendants argued that, although the claims gave rise to areas of commonality, each class member's issues were not sufficiently similar to meet the 'same interest' threshold.  

Mr Justice Robin Knowles dismissed the application at first instance, stating that "what matters is whether the 'same interest' requirement is met, and in particular whether the points involve class members affected by an issue prejudicing the position of others. None do." He later stated that "there is no absence of 'same interest'".

The defendants appealed to the Court of Appeal, which agreed that there was a common issue applicable to all members of the class and that there was no relevant conflict between them, and so the members of the class have the 'same interest' in the claim for the purposes of CPR 19.8. The defendants then sought permission to appeal to the Supreme Court. However, Lord Leggatt (who gave the leading judgment in Lloyd v Google), Lord Reed (who agreed with that judgment) and Lady Simler, have now refused to grant permission on the basis that the appeal "did not raise an arguable question of law".

The decision means that the claim will now proceed to a full trial, which is due to take place in January 2025.


The Supreme Court's decision to refuse permission is an encouraging endorsement of the Court of Appeal's approach to the 'same interest' requirement under CPR 19.8, that even in circumstances where there will remain issues that may require individual determination (and even if those issues go to liability and not just, for example, issues of quantum), this should not act as a bar to resolving common issues through the representative claim procedure. As such, the Court of Appeal's judgment and the Supreme Court's refusal to grant permission to appeal attest to the appropriateness of the CPR 19.8 regime for claimant classes who have suffered a common loss and share a same interest, which should not be diminished by superficial differences and case management complexities. While it has been reported that the defendant intends to maintain arguments that the complaint cannot be properly advanced on a representative basis at trial, it remains to be seen how such challenges will now be raised.

In the meantime, as noted by Mr Justice Knowles: "In a complex world, the demand for legal systems to offer means of collective redress will increase not reduce". Viewed against this commentary, it is a promising sign for the representative action that, in this case, the claimants have been permitted their day in court.

How can we help you?

How can we help you?

Subscribe: I'd like to keep in touch

If your enquiry is urgent please call +44 20 3321 7000

Crisis Hotline

I'm a client

I'm looking for advice

Something else