Lloyd and the Legislative Void: Representative Actions in Transatlantic Context

The Canadian class action regimes have had a strong influence on the development of collective redress procedures in England. Canadian class proceedings legislation provided a model for the competition law class action regime in the UK, and before then, it featured prominently in the Civil Justice Council’s report that recommended the enactment of generic class actions legislation in England. It is fitting, then, that the UK Supreme Court’s recent decision in Lloyd v Google referred to the Canadian jurisprudence on the representative rule, which allows one or more claimants to represent a group with the ‘same interest’. While Lloyd did not follow the Supreme Court of Canada in allowing representative actions for individualised damages, the decision represents a more liberal reading of the representative rule than in previous cases. Specifically, it affirms the use of the rule for a declaration of the answers to common questions, with individual actions to follow (the ‘bifurcated approach’). This article will situate Lloyd within the context of Canadian and English representative action jurisprudence, and, based on the rule’s development in Canada, will make predictions for its use in England. Article length: 9,963 words