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December 8, 2022

Robert Rothkopf contributes to Portland's Class Action Report 2022

Robert Rothkopf shares his thoughts on how the UK class action regime can be improved, in Portland's Class Action Report 2022.

Robert Rothkopf
Managing Partner

Portland Communications' latest research into public perceptions of class actions has been published - available here.  

Portland’s third annual Class Action Report polled the UK and US general public to provide unique insights into public attitudes towards class actions in the UK and the US. For the first time, Portland’s 2022 Report also focuses on competition claims, including the general public’s understanding of how unfair commercial practices impact the price they pay as consumers.

The Class Action Report 2022 polled large representative samples of the UK and US populations. Portland’s analysis reveals that:

1. Trust and confidence in class actions remain relatively low in the UK compared to the US.

2. UK and US willingness to sign up to class actions remains high, and the public are increasingly willing to boycott companies accused of breaking the law.

3. Appetite for competition claims among the general public is also high, with a relatively high understanding of how a company’s actions affect prices paid by consumers.

4. Litigation funding is accepted by the general public as a necessary aspect of bringing class actions.

Robert Rothkopf of Balance was asked to provide expert opinion making the case to expand "opt-out". Robert wrote: "Portland’s poll provides illuminating data on how the UK public perceives class actions, including barriers to entry for individuals in your typical “opt-in” class action. Individuals may not know or trust that they have a valuable claim, despite being eligible. Even when those rights have been successfully publicised and communicated to the right audience, many individuals do not have the resources, inclination or time to complete the process.

Unfortunately for those in the UK, “opt-in” class actions are the only option for group claims outside of the competition space since the Lloyd v Google Supreme Court decision (which imposed a restrictive reading of Part 19.6 claims). This high-friction status-quo limits access to justice for those who are owed compensation, increases the costs of pursuing class action litigation (with significant resource being ploughed into “book building”), and hands a huge advantage to defendants.

This is in stark contrast to the likes of the US and Australia, where “opt-out” class actions are the norm. The default position is that an eligible claimant is in the class unless they actively opt-out. This powerful difference partially explains why the US and Australia have developed a wider range of consumer-focused class actions against corporate wrongdoing, from securities claims to product liability and breach of data protection.

Currently, the only “opt-out” collective regime in the UK is in the Competition Appeal Tribunal. Recent signs show it is working very well. However, with the cost-of-living crisis adding further urgency, it is clear that individuals in the UK deserve a legislative solution that broadens “opt-out” class actions, expanding access to justice and providing more effective routes to compensation."

A key point arising from the survey results, is that litigation funders clearly need to do a better job of communicating that funding is essential in empowering consumers to obtain legal redress against corporates who otherwise hold all the cards.

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