Competing legal teams can lead to duplication, confusion and misunderstandings and, while parties to litigation are generally entitled to be represented by solicitors of their choice, in group litigation the courts have acknowledged that right is qualified in order to achieve efficient conduct and case management.
One tool for managing group actions is the use of steering committees. Their role is to make strategic decisions throughout the litigation and coordinating legal efforts to litigate efficiently. The most common type of steering committee comprises the claimant law firms and is tasked with the overall conduct of the litigation; coordinating with other claimant firms that may have a significant number of clients in the case; developing, discussing and implementing legal strategies; managing discovery; and negotiating settlements.
In the context of GLOs, the rules provide that, as a preliminary step, it will often be convenient for the claimants' solicitors to form a group and for one of that group to take the lead in applying for the GLO and in litigating the GLO issues. The lead solicitor's role and relationship with other members of the group should be carefully defined in writing and, as noted above, they will go on to manage the group register. While such an arrangement is unlikely to be necessary in the context of a representative action, where the only claimant is the representative, it is usually sensible to adopt a similar process to multi-party proceedings under other procedural mechanisms, even if not strictly required.
In some cases, more than one lead solicitor has been appointed under a GLO. For example, in 2017 two lead solicitors were appointed in relation to a GLO over personal injury claims by former British Steel coke oven workers. This approach can be effective where roles and responsibilities can be effectively delineated, but there is a risk of satellite disputes and the court will typically exercise caution before appointing additional lead solicitors against the reasoned opposition of existing lead solicitors.
By contrast, in Lungowe v Vedanta Resources Plc & Ors (2020), the court made clear that, at least in relation to resolving GLO issues, different groups of claimants are not entitled to instruct different groups of counsel. The principle was, in the court's view, "so obvious that it does not appear to have been stated anywhere expressly before", and "no court should be faced with different counsel teams acting for the same cohort, save in the very rarest of circumstances which it is not possible fully to envisage."
Where there are numerous claimants, or the claimant group includes claimants of different categories (i.e. individuals, private legal entities, public legal entities, mixed corporations), it will also be helpful to ensure that clear decision-making structures are put in place at the outset, to avoid unnecessary delays if every member of the group has to be consulted on every step in the litigation process. In some cases, the claimants may choose to appoint a claimant / client steering committee, adopt a voting system or even, where justified by the number of claimants, form a limited company.
In especially complex cases with multiple defendants and/or defendants in multiple jurisdictions, there may also be a defence steering committee, which performs the same function for the defendants.
While the establishment of a steering committee does not require a court order, the court usually gives directions on who will be a member of the committee and how the committee will act within the litigation. For instance, the claimant firms may submit a list of which firms they believe should be in the committee. The court will then analyse the list and may propose amendments based on considerations such as a specific firm’s experience.
In addition to steering committees, the additional layer of complexity inherent in group actions often demands the engagement of a claims management company (CMC), also known as a claims administrator (although this latter designation has been more commonly utilised within the realm of settlement administration firms). CMCs specialise in efficiently handling the administrative tasks associated with aggregating a large group of clients (e.g. developing marketing campaigns and managing the growth of the class) and providing client care throughout the proceedings, processing and validating claims (e.g. collecting claim forms, verifying eligibility – including on-field operations for claims that relate to facts occurred in remote locations, and calculating individual claim amounts). Their participation helps streamline the claims process, reducing not only the administrative burden on the court and the costs to the parties but also the overall timely resolution of the case.
The use of a CMC also assists law firms with compliance requirements, as CMCs are usually familiar with legal requirements such as client care obligations and court-approved distribution plans governing the administration of settlements. CMCs can also provide documentation to demonstrate that the firms involved in the case are acting in accordance with court orders. Overall, CMCs play a critical role in ensuring the proper conduct of group actions, and having them involved from the outset of any given case is advisable to enhance efficiency, accuracy, and compliance, ultimately benefiting all parties.