Collective actions are undergoing a quiet evolution in England. Once a rarity, recent reforms and landmark cases are signalling a gradual shift towards broader group litigation. While England remains more restrained than the US, its approach is becoming increasingly responsive to modern pressures in areas such as competition, ESG, and consumer claims.

This is part of a series of bulletins for US lawyers and parties who may have litigation or disputes in England issued by partner Stephen Rosen who heads our UK/USA disputes team.

Collective action lawsuits have their roots in medieval English jurisprudence; yet while they all but died out in England[1] in the 19^th century, they flourished in the US, where they continue to provide a plaintiff -friendly mechanism for large groups of plaintiffs to collectively pursue claims. In contrast, England has traditionally maintained a more restrictive and fragmented approach.

However, with recent reforms and some enthusiasm for such claims in areas like competition law, ESG and consumer protection, the English collective litigation landscape is gradually changing- albeit slowly. Recent years have also seen a surge in securities litigation, with some collective action claims filed following regulatory action by authorities both in England and internationally.

Leaving aside class actions for completion law claims (see below), England offers a patchwork of procedural options for collective actions, primarily opt-in in nature. Claimants have historically been able to pursue collective redress through Group Litigation Orders (GLOs), Representative Actions or simply by joining multiple claimants in a single claim. Representative Actions technically allow for opt-out claims, but only where claimants share the “same interest” – a requirement that has led to substantial judicial debate

Major structural Differences

England – class actions are very restricted in scope indeed and are only formally recognized in the context of competition law breaches, which must be brought before the Competition Appeal Tribunal (CAT) under an opt-out regime introduced by the Consumer Rights Act 2015.

The recent landmark case of 1266/7/7/16 Walter Hugh Merricks CBE v Mastercard Incorporated and Others[2] is the largest settlement in English class action proceedings to date, and only the fifth reached under the opt-out regime so far. It involved an allegation that Mastercard’s interchange fees on card payments broke competition law and caused consumers to pay higher prices. It was subject to various challenges to class certification status, and the CAT ultimately showed that it retains significant powers in narrowing the breadth of claims, at one point deciding in Mastercard’s favour to narrow claims on behalf of deceased consumers, significantly reducing the claim’s overall value. Due to the recent modest settlement figure of £200 million in comparison to the original claim of £14 billion and the legal headwinds faced by the case, the Tribunal stated that the approach to settlement “should not be regarded as a guide for more positive settlements of cases that reflect better the public policy behind the introduction of collective proceedings.”

US- conversely, in the US a much wider variety of claims can be brought as putative class actions in state or federal courts, where one or more named plaintiffs bring the action on behalf of a group of similarly situated plaintiffs. A lawsuit is only officially designated as a class action after the court certifies it as one—a process that usually occurs well into the litigation. These actions typically proceed on an opt-out basis, automatically including all those who fall within the class unless they expressly choose to withdraw.

Filtering of Claims

One of the most significant divergences between the two jurisdictions is the way they handle the certification and filtering of claims.

England- the courts have generally been cautious in allowing collective actions to proceed. Procedural thresholds – particularly the “same interest” requirement – serve as initial barriers to weaker claims and help to manage judicial resources before the claims proceed further through the courts.

US- class certification is a critical battleground. Defendants often focus on challenging certification, arguing that a class action is inappropriate or unviable and leading to lengthy battles. While this can filter out weak claims, it also results in a high volume of litigation and procedural complexity.

Funding and Fees

Funding is a major factor in the feasibility and proliferation of actions in both jurisdictions.

England – third-party funding is often essential due to the high costs associated with initiating collective action proceedings. Funders typically cover legal fees in exchange for a share of any recovery, but regulatory (and political) scrutiny is increasing.  Recent Supreme Court rulings such as R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [3] have impacted the enforceability of certain funding agreements, and as a result has made the funding market more uncertain and there is an ongoing consultation on litigation funding taking place by the Civil Justice Council.

US- the established nature of class actions and of a large number of specialist plaintiff firms with plaintiff attorneys being paid a percentage of the total recovery, creates a strong incentive for the active pursuit of the actions. The financial structure allows for high volumes of class action filings, many of which settle as defendants seek to minimise their potential costs exposure.

Damages and adverse costs orders

Another key distinction lies in the type of damages available and the approach to adverse costs orders.

England– damages are primarily compensatory and the unsuccessful party may be ordered to cover a substantial portion of the opposing party’s legal costs. These features act as deterrents against claims that are unlikely to succeed and can encourage early settlement.

US- courts can potentially (although fairly rarely) award punitive or treble damages, particularly in antitrust and consumer fraud cases. This risk can significantly increase the potential financial exposure for defendants and adds leverage for plaintiffs in settlement negotiation. For some claims there can be statutory penalties as well but the most significant difference between the two legal systems is that it is exceeding rare for a losing party in US proceedings to have to pay the opponent’s costs.

What’s next in England?

England is gradually moving toward liberalised collective claim procedures, albeit with a more cautious approach than in the US. The expansion of funding markets and improving awareness of collective litigation has led to an increased appetite but there are various uncertainties including recent new political scrutiny as a result of pressure by commercial interests.

During this month, October 2025, the latest chapter in the saga of “Dieselgate” is set to commence in a three-month High Court trial. It will be decided whether Mercedes-Benz, Nissan, Ford, and other vehicle manufacturers made vehicles containing “prohibited defeat devices” designed to cause vehicles’ emission control systems to be switched on under test conditions, but off in real-world driving conditions. With 1.8 million claimant vehicle owners represented by a variety of law firms, it will be the largest group action claim to date in England (in the US by contrast the claim was brought as a class action).

Ultimately, however, England is unlikely to adopt collective litigation on the scale or intensity of the US system. Built-in restrictions through procedural hurdles, judicial discretion, and adverse costs awards continue to limit litigation.  However, the likelihood is that as legal mechanisms evolve, a more structured approach to mass claims is likely to take shape – distinct from the US model, but increasingly responsive to similar pressures.

By Stephen Rosen and Caitlin McDonald Collyer Bristow LLP

[1] References to “England” in this article are to England and Wales.

[2] [2025] CAT 28-https://www.catribunal.org.uk/judgments/12667716-walter-hugh-merricks-cbe-v-mastercard-incorporated-and-others-judgment-csao

[3] [2023] UKSC 28- https://www.supremecourt.uk/cases/uksc-2021-0078