CPR 19.8 representative action: “bifurcated process” adopted in claim by bank against representative defendant

The High Court has allowed a claim to be brought against two defendants as representatives of 5,000 others, enabling common issues to be determined in respect of the entire class under CPR 19.8 and individual issues to be decided later: Barclays Bank UK plc v Terry [2023] EWHC 2726 (Ch).

The decision appears to be the first to adopt the “bifurcated process” envisaged by Lord Leggatt in the Supreme Court’s seminal decision on representative actions in Lloyd v Google [2021] UKSC 50, considered in our blog post here. Since that decision, there has been much debate as to the feasability of using a bifurcated process, in which truly common issues (such as whether there has been an actionable breach) are determined for the whole class via a representative action, leaving any individual issues to be dealt with subsequently.

In the present case, the court has adopted the process in order to determine common issues against a class of individuals, where the claimant claims an entitlement to similar relief but accepts that some aspects of the claim must be determined individually. The court's willingness to adopt the bifurcated process may impact the risk profile of group claims against financial institutions.

The Court of Appeal’s anticipated judgment in the Commission Recovery v Marks & Clerk case is expected to shed some light on the boundaries of the representative action procedure in that context (see our blog post on the first instance decision here). In addition, we understand that a number of claims under s.90A of the Financial Services and Markets Act 2000 have been brought under CPR 19.8 (although not on an opt-out basis), with a strike-out application in one case heard earlier this month. We will report on the outcomes of these cases when the judgments have been handed down.

For a more detailed analysis of the decision, please see our Litigation Notes blog post.