David Greene, the OG of group actions
Whilst group actions have grown in the last decade, in our latest blog I spoke to David Greene, partner at Edwin Coe and former President of the Law Society. David has been pioneering group actions ‘since the 80s’ – an OG if you will. As well as being an original proponent of group actions in the UK, a key part of David’s drive has been social change and justice.
Q: When did you start doing group actions and why?
A: I’ve been working in group actions since the 1980s – years before the recent wave in the last decade. In those days the policy emphasis was on mass tort. Some of my earliest work I did within the sector was asserting the collective rights of London sex workers and representing the British families whose children and partners were the victims of the Lockerbie bombing. I spent much time with class action lawyers from the States litigating in the States and saw how the much criticised US system provided access to justice. Some of the benefits of that process are now being used here. It was difficult to secure the funding in the early days and we did much work pro bono. The funding position changed, however, with the Woolf reforms in the late 90’s and the recovery of success fee and ATE premiums. We could then capitalise cases. That all changed with the Jackson reforms in 2013 which topped off the ‘costs war’ that followed Woolf, particularly in personal injury work. We also had the court’s attempt at assisting class actions with the GLO procedure but save for mass tort litigation they were not popular. The litigation funding industry has made a huge difference and the firm started with funders in the workings out of Factortame litigation in the 1990s
Q: Why did having access to ATE make such a difference?
A. It wasn’t so much the development of the ATE market that mattered but the post Woolf recovery of the premium. This allowed the insurance market to work on a complete contingency which was of huge benefit to clients seeking access to justice. It was the abolition of recovery under the 2013 reforms that really set back access to justice for ordinary folk and class litigation.
Q: What makes Edwin Coe different from other firms when it comes to group actions?
A: Save for one or two of the mass tort claims firms, we have much greater experience than many in the processes of the opt in procedure, funding, insurance, book building, administration and prosecution of the claim, having been doing this for over 30 years. Also the firm is unusual because our experience and work covers a large swathe of the litigation field, from mass tort to competition to securities fraud to consumer claims to tax, so at the moment we are dealing with Hillsborough, child abuse, trucks cartel, a massive tax dispute and working on section 90 and 90A claims for shareholders. Our reputation and relationships with funders, insurers and fellow lawyers is all important.
Q: There seems to be a social element in your work, whether that is for miners rights or the families of the Hillsborough disaster. What inspired you to get involved in these cases?
A: I’m certainly not alone in having a social element to my work but we have always sought to provide access to justice for those that find that a challenge particularly facing Government or large corporations and if we cannot fund it we may do it pro bono as we did earlier this year for HS2 protesters at Euston.
Q: What do you think are the difficulties with group claims?
A: There are many difficulties and whilst things have improved the changes bring new challenges. For example firms have to invest a lot of time and sometimes expense to get a case up and running. In an opt out process it remains difficult to organise large groups in consumer claims. With the volume of people involved you need to create a mechanism to ensure decisions can be made without recourse to the mass. Even if you wanted more involvement from a lot of people, many involved do not want to invest the time and see it simply as a no lose opportunity. One lesson I would pass on is get the documentation from the client as swiftly as possible while they remain fully engaged.
Q: What are your thoughts on group actions developing in the data protection space, in light of the recent Lloyd v Google decision?
A: The dynamic that was developing about the enforcement of consumer rights and data breaches has had a sharp tug on the reins by the decision of the Supreme Court in Lloyd v Google . The attempt to develop CPR 19.6 into an opt out class process for damages claims has, for the time being, failed but the Supreme Court has given food for thought as to how the opt out process under 19.6 may be used in other ways. Both the Supreme Court and Court of Appeal reflect the modern attitude of the judiciary to seek ways to give access to justice for ordinary consumers who suffer wrong as a class; sadly to no effect in the instant Google litigation.
Q: When you say there is an issue around payment have you/the firm looked at embracing technology as a way to assist with this?
A. Technology will indeed play a huge part in organising groups but increased data obligations with GDPR play havoc with book building and then administration.
Q: What do you think of the future for litigation funding in group actions?
A: The large group actions cannot run without funding, it’s essential. The market is, however overheating, with many coming into the field with little knowledge or understanding. The problem for funders is the length of proceedings and in group actions whilst the quantum works the proceedings can be a very long process e.g. Air Cargo cartel litigation resolved in the UK after 12 years and is still running in the Netherlands. Funders need a secondary market to sell investments. There isn’t one.
Q: With such a good overview of group action development in the UK do you have any predictions for its future?
A. We’re going to see a huge growth in group litigation. Having been out in the cold and a cottage industry for many many years it has now moved to the mainstream.