Class members: defining the class and communicating with them
Class members in collective proceedings have a unique status as a matter of law. While not strictly speaking “parties” to the litigation itself, the litigation is brought expressly on their behalf and for their benefit. It is therefore necessary that there is absolute clarity about who falls within the class and who does not. This has been addressed recently in the CAT’s judgment in the Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited proceedings (the “Neill Proceedings”).[1] Separately, the Court of appeal in Nippon Yusen Kabushiki Kaisha & Ors v Mark McLaren Class Representative Ltd (the “McLaren Proceedings”)[2] has recently provided some important guidance on the extent to which defendants may communicate directly with class members.
Defining the class
One of the requirements for commencing collective proceedings is that the collective proceedings claim form must contain a “description of the proposed class”.[3] The claim form must also contain an estimate of the number of the class and any sub-class members and the basis for that estimate,[4] this necessarily requires that there is a degree of precision to the definition of the class.
To date, in cases where the infringing conduct complained of is ongoing, the class definition in collective proceedings has been, effectively, open-ended; seeking to capture all individuals who will fall within the class definition up to the date of judgment or settlement. The possibility of defining the class to include such future claimants was challenged in the Neill Proceedings.
The class representative (“CR”) in the Neill Proceedings alleges that Sony has abused its dominant position on various markets by imposing exclusive dealing obligations in the form of digital distribution restrictions, tying Sony's own electronic store for digital games and in-game content to the sale of PlayStation consoles and/or the PlayStation System Software, and imposing excessive and unfair prices for the distribution of third party published and self-published digital games and in-game content.
The class, as originally defined, consisted of all PlayStation users domiciled in the UK who purchased digital games or add-on content from the PlayStation Store during the Relevant Period. The relevant period was, in turn, defined as the period between 19 August 2016 and the date of final judgment or, if earlier, settlement of the proceedings.
Sony challenged the class definition as being defective, arguing that the claims need to be extant at the time the collective proceedings were issued. In its judgment of 21 November 2023, the CAT – agreeing with Sony – ruled that the class definition was defective by reason of its inclusion of class members who did not have a claim as at the date of issue of the Claim Form. Therefore, the CR was required to amend the class definition so that the relevant period terminates as at the date the claim form was filed.
The CAT in Sony noted that its judgment results in “the requirement for some procedural gymnastics” where the infringing conduct is ongoing and the CR wishes to include future class members and combine those claims with the existing collective proceedings.
As a consequence, a number of other collective claims have taken steps to amend their class definitions; such as in Justin Le Patourel v BT Group PLC (“Le Patourel”).[5] Given that the start of the trial in Le Patourel was imminent, the CAT considered the class definition issue at a pre-trial review. The CAT approved an amended end date for the relevant period, which was the date of the pre-trial review itself. This did necessitate notice to be given to the class members to enable them to opt out of the imminent trial, and the CAT required the CR to issue a revised collective proceedings order (“CPO”) notice to the class, informing class members of their right to opt out of the proceedings by making a request to do so before the day prior to the start of the trial.
Communications with class members
Communications with class members about opting-out in the McLaren Proceedings resulted in some important guidance from the Court of Appeal about the permitted parameters of such communications.
The original CAT ruling arose following letters being sent by all but one of the Defendants to the McLaren Proceedings to various large business purchasers who were members of the class.
The claim had been certified by the CAT on an “opt-out” basis for those class members domiciled in the UK and on an “opt-in” basis for those domiciled outside of the UK. The CPO set a deadline of 12 August 2022 for UK domiciled class members falling in the “opt-out” class to decide whether to opt-out and for non-UK domiciled class members in the “opt-in” class to elect to opt in. Ahead of that deadline, solicitors acting on behalf of all but one [6] of the defendants wrote letters to twenty-one of the large business purchasers to draw their attention to the opt-out date and indicating their intention to seek disclosure from them; which, they warned, could involve substantial work and expense for those large business purchasers.
By way of an urgent application, the CR applied for an order from the CAT restraining further communications between the defendants and class members. The CR argued, firstly, that all communications directly between defendants and class members were prohibited by an implied rule in the CAT Rules; and, in the alternative, that even if there were no such prohibition in the CAT Rules, the content of the letters crossed the line of what was acceptable and the CAT should exercise its discretion to make the order sought pursuant to its case management powers.
The CAT held that the CAT Rules preclude any communication between a defendant and a member of a class where that communication concerns the collective proceedings unless the Tribunal orders otherwise. The CAT noted that describing the addressees as claimants was inaccurate as that was not the effect of a CPO, which authorises a CR to bring claims on behalf of the class members. The CAT stressed that any communications should be between the parties to the proceedings, which “did not include represented persons” (i.e. the class members). The CAT concluded that the defendants should not have written the letters and that it had been improper conduct on the part of the defendants’ representatives.
On appeal, the Court of Appeal held that the CAT Rules do not contain a prohibition on communication such as the one found by the CAT: there is no express wording containing the prohibition, nor is there anything in the wording of the CAT Rules which gives rise to the implication suggested by the CAT. The Court of Appeal also noted that there is no general rule in civil litigation which prevents a defendant or its legal representative from communicating directly with a claimant about the case.
Conversely, the Court of Appeal noted the negative practical consequences that would flow from such a prohibition. In particular, if defendants were required to obtain permission from the court for any approach to class members; for example, seeking disclosure of relevant evidence, that could be an invasion of litigation privilege, as it could force a defendant to disclose details of its pursuit of evidence to its opponent. The Court of Appeal further considered that a prohibition of this nature could result in parties being on an unequal footing: whereas, for example, a CR would be free to approach potential experts in search of one whose views are most favourable to its case, the defendants would be required to disclose their approaches to any potential expert where that potential expert also happened to be a member of the class. By the same logic, the Court of Appeal found that the prohibition could also interfere with the defendants’ ability to act in the normal course of business where its counter parties were class members. Lastly, the Court found that the experience in Canada, where no general prohibition on communications applies, suggests that a general prohibition is not necessary to achieve the purpose of the collective proceedings regime.
Nevertheless, the Court of Appeal considered that it would be open to the CAT to impose such a prohibition in an appropriate case through the exercise of its case management powers. However, the outcome of such an application would depend on the specific facts of the case, rather than on a general rule of law prohibiting communications.
[1] Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited & Ors [2023] CAT 73.
[2] Nippon Yusen Kabushiki Kaisha & Ors v Mark McLaren Class Representative Ltd [2023] EWCA Civ 1471.
[3] Rule 75(3)(a) CAT Rules 2015.
[4] Rule 73(3)(c) CAT Rules 2015.
[5] Case No: 1381/7/7/21 Justin Le Patourel v BT Group PLC.
[6] The fourth defendant; Kawasaki Kisen Kaisha Ltd.