Wirral Council as administering authority of Merseyside Pension Fund v Indivior PLC

Where the same-interest requirement for representative proceedings is satisfied, the court retains a discretion whether the claim should continue under CPR 19.8. That discretion must give effect to the overriding objective and depends on the particular circumstances of the case.

The representative procedure is a means of securing access to justice where claims could not realistically otherwise proceed. It is not a device by which claimants may unilaterally impose bifurcation and prevent the court from case-managing individual issues, including standing, reliance, limitation, causation and quantum. Where ordinary multi-party proceedings are feasible, the court may prefer them so that it controls the structure and progress of the litigation.

Wirral Council commenced representative proceedings against Indivior PLC and Reckitt Benckiser Group PLC under sections 90 and 90A and Schedule 10A of the Financial Services and Markets Act 2000. The claims concerned alleged misleading statements, dishonest omissions and delayed publication relating to the marketing of Suboxone.

The representative proceedings sought declarations on common defendant-side issues. Individual matters, including standing, reliance, causation, limitation and loss, were intended to be dealt with later. At the same time, institutional investors had issued ordinary multi-party proceedings raising materially identical claims, which had been stayed.

The defendants applied under CPR 19.8(2) and CPR 3.4(2)(b) to prevent Wirral acting as representative and to strike out the representative claims. The central issue was whether the court should permit the representative proceedings to continue where they would predetermine bifurcation and restrict the court’s ability to manage the litigation from start to finish.

1. Applications allowed. Wirral was prohibited from acting as representative under CPR 19.8(2), and the claim forms and particulars of claim in the representative proceedings were struck out.
2. Although satisfaction of the same-interest requirement entitled Wirral to commence the proceedings under CPR 19.8(1)(a), it created no presumption that they should continue. On an application under CPR 19.8(2) or (3), the court must exercise its discretion by reference to the overriding objective.
3. Lloyd v Google LLC [2022] AC 1217 recognised that representative proceedings may use bifurcation where individual assessment is required. The discussion of bifurcation was obiter, however, and did not determine how a second stage should operate or how the court should manage the proceedings before trial.
4. The representative procedure is principally justified where it provides access to justice that would otherwise be unavailable. Bifurcation is a possible means of enabling representative proceedings to proceed; it is not itself the purpose of the procedure. Claimants cannot use CPR 19.8 to secure, without judicial assessment, a process that defers all claimant-side work and removes the court’s case-management control.
5. The court had to consider the representative proceedings together with the intended follow-on claims. The existence of feasible multi-party proceedings meant that the court could decide whether bifurcation was appropriate, what issues should be tried first, and whether disclosure or evidence on later issues should be obtained in advance. The approaches in Manning & Napier v Tesco plc [2017] EWHC 3296 (Ch), Allianz Global Investors GmbH & Ors v RSA Insurance Group plc [2021] EWHC 570 (Ch), and Various Claimants v G4S Limited [2022] EWHC 1742 (Ch) illustrated that balance.
6. The evidence did not establish that institutional or retail investors could obtain access to justice only through the representative proceedings. The funding arrangements and the absence of a clear strategy for the follow-on claims also weighed against allowing a procedure that would prevent proper case management.