UK students’ group litigation order application fails

The claims are centred around alleged disruption to in-person tuition that occurred during the academic teaching years of 2017-18, 2019-20, 2020-21 and 2021-22, which stemmed from industrial action and measures implemented in response to the Covid-19 pandemic.

Law firms representing the students are seeking damages for the students to compensate them for that alleged disruption. They sought to group together various claims, brought by around 5,000 students to-date, and applied to the High Court for a GLO to that end. They said a GLO would be the best way for the claims to be managed, arguing that this would provide access to justice, an efficient and proportionate method of resolving the claims, and an effective means of resolving common issues whilst still enabling individualised issues to be determined.

However, UCL, which robustly rejects the claims, opposed the application for a GLO. It argued that the court’s existing case management powers were wide enough and flexible enough to achieve a proportionate resolution of the claims via test cases that could be brought to trial instead.

In a ruling issued on Wednesday, the High Court sided with UCL. It considered that the eligibility thresholds for a GLO to be granted were met, finding that the claims “give rise to common issues of fact or law”. However, it said it was appropriate for it to exercise its discretion to refuse the application in this case, determining that “the litigation would be best resolved by the creative use of the court’s existing case management powers”.

High Court judge Senior Master Cook said: “I do not consider a GLO will help to promote fairness, save costs or allow the claims to be dealt with in a timely and efficient manner. In particular, I take into account the fact that there was, by the close of the hearing, very little difference in substance between the parties’ case management provisions and that the parties were agreed there should be a trial of test cases covering issues of liability and quantum.”

Julian Sladdin of Pinsent Masons, which acts for UCL in the case, said that the decision shows that if the courts are not satisfied of the ‘utility’ of a GLO – that it will provide a more efficient and effective way of managing a case rather than creatively applying the court’s usual case management powers – they are unlikely to put one in place, even if the thresholds for granting a GLO are otherwise met.

Stephanie Connelly, also of Pinsent Masons, said: “During the hearing, Senior Master Cook encouraged parties who are engaged in group litigation not to look backwards at what has been done with case management before but to learn from this and to think outside the box. The court referred to its ability to do anything it wants in furtherance of the overriding objective, which allows it to be very creative, and that it should not be constrained by what has been done in the past.”

In this case, the judge was persuaded by a submission from UCL’s counsel that decisions on ‘test cases’ on common contractual terms were sufficient to “bind other claimants in the consolidated actions by way of precedent and res judicata”, the latter being a legal principle that guards against points determined in previous litigation from being re-litigated in another forum. The judge went on to consider that it was not necessary to create a group register to facilitate the effects of a GLO, avoiding additional costs and work that would entail.

Another factor in the judge’s decision was that a small fraction of UCL students and former students eligible to join the proposed group action had chosen to do so. He considered that after four years of advertising and recruitment, there were only likely to be “few, if any additional claims commenced” and that these could be “more than adequately met by application of the ordinary principles of case management”.

To manage any future claims the court also ordered that a ‘cut off’ be applied immediately to any claims arising out of the same facts and issues which are not already joined to the litigation. These claims, if issued, will now be stayed until any judgment is handed down in the present litigation – which is now due to proceed to test trials in early 2026.  

Sladdin said: “Due to the increasing amount of high-profile mass actions in the UK courts, there is an increasing assumption that the courts are highly likely to grant claimants a formal GLO should certain thresholds around numbers and common issues of fact and law be met. However, this decision is an important reminder that any grant of a GLO is discretionary and subject to the court satisfying itself as to the ‘utility’ of such an order in the particular litigation rather than a default response. This is often a case-specific decision.”

“In particular, it highlights the need for parties to give proper consideration as to proportionality of such an order with regard to the quantum of individual cases and if it is possible that the case can be more than adequately managed by creatively applying the court’s preexisting case management powers, including its ability to use precedent and the doctrine of res judicata to bind other similarly affected parties without the need for the more formal and potentially costly frameworks which would be necessary under a formal GLO,” he said.