What Is Meant by 'Same Interest' When Bringing Representative Proceedings in England

Claimants in England now have greater clarity on the meaning of 'same interest' where claims are brought by representatives on behalf of a larger group.

As a result of an oil spill off the coast of Nigeria in 2011, Mr Jalla and other unspecified entities issued proceedings in Jalla v Shell International Trading and Shipping Co Ltd [2020] EWHC 2211 (TCC). The proceedings brought in December 2017 claimed that damage to property and livelihoods had resulted from the oil spill. The claims were based on negligence and nuisance and were brought against several Defendants.

In May 2020 these claims came before the High Court in order to address the representative nature of the proceedings. The court was asked to decide if the lead Claimants and those they purported to represent had the same interest in the claim and whether the represented class could be identified with adequate certainty.

The decision

When considering what is meant by "same interest", the court stated that Claimants needed to show they had a common interest based upon a common grievance. However, the court considered that if there were individual defences to some claims then the representative proceedings would not be appropriate and these should be dealt with as separate individual claims.

While the court determined that there were common issues of fact to be decided, for example how the oil spill occurred and whether there was a breach of a duty of care, each Claimant would still need to prove that the oil spill caused them damage. The court stated that issues of loss, damage and causation were not subsidiary issues and these would be different for different individuals and that this would be likely to give rise to individual defences. As a result of this, the court refused the representative elements of the proceedings.

Discussion

By abandoning their individual claim for damages, the represented Claimants clearly intended to align their position with the facts of Lloyd v Google. The alleged wrong in Lloyd v Google was the acquisition by Google of browser generated information which is automatically submitted by a browser upon connecting to the internet. In this way, all Claimants sustained the same loss, by way of a loss of control over their browser generated information. By contrast, in Jalla, the alleged wrong was the uneven distribution of a physically harmful substance in the form of an oil spill. Unlike in Lloyd v Google, the Claimants could not escape the fact that they needed to show that they had suffered individual damage and as a result the defendants would likely need to raise individualised defences.

The decision in this case shows the importance of establishing the interests of all parties before launching representative proceedings in England. The existence of common issues of law and fact is not enough to show that parties have the same interest as there needs to be proper consideration of each individual claim and defence.

However, there are benefits to pursuing representative proceedings not least the required initial analysis and procedural benefits whereby representative proceedings may prevent the courts from having to deal with numerous individual cases with similar issues of fact and law.

There are also clear benefits to Claimants included in a represented class who would potentially be unable to afford to pursue a claim without the existence of representative proceedings where information and costs can be shared among them.