Group litigation has become an increasingly prominent feature of civil litigation in England and Wales, particularly in cases involving large numbers of claimants and complex factual matrices. While Group Litigation Orders (GLOs) provide a structured mechanism for managing such claims, the scale of modern group actions is placing growing pressure on how costs are controlled and assessed.

As these cases expand in size and complexity, courts are being asked to grapple with the realities of administering litigation involving multiple claimants, shared issues, and significant volumes of work. This has led to a more active judicial approach to costs, raising the question of whether courts are becoming less tolerant of the scale and expense associated with large group claims.

 

The Structure of Costs in Group Litigation

Under the Civil Procedure Rules, group litigation is typically managed through a GLO, with claims entered onto a group register and divided between common issues and individual issues.

This distinction is critical when it comes to costs. In broad terms:

• Common costs are those incurred in dealing with GLO issues affecting all claimants
• Individual costs relate to the specific circumstances of each individual claim

Costs incurred by the lead solicitors in progressing the common issues are often shared across the group, usually on an equal proportion basis, although the court may order otherwise.

In theory, this provides a fair and efficient system for allocating costs. In practice, however, the scale of group litigation can create significant challenges.

 

The Reality of Large-Scale Claims

Modern group actions frequently involve thousands of claimants, complex expert evidence, and substantial disclosure exercises. The costs incurred in administering the litigation, particularly at the level of common issues, can be considerable.

This raises several practical difficulties:

• ensuring that costs incurred by the lead solicitors remain proportionate
• managing the relationship between common costs and individual costs
• allocating costs fairly across a large and diverse claimant group
• dealing with funding arrangements, including conditional fee agreements and ATE insurance

As the scale of these claims increases, so too does the potential for costs to escalate beyond what the court considers proportionate.

 

Judicial Control and Costs Management

Courts have shown an increasing willingness to exercise control over costs in group litigation, particularly where the scale of the claim risks undermining the principle of proportionality.

This can take a number of forms, including:

• closer scrutiny of costs incurred in relation to GLO issues
• intervention in the structure and management of the litigation
• the use of costs capping orders in appropriate cases
• a more rigorous approach to detailed assessment of costs

In some instances, courts have been critical of inefficiencies in how group litigation is conducted, including duplication of work and lack of coordination between legal teams.

 

The Role of the Lead Solicitor

The position of the lead solicitor is central to the management of group litigation costs.

Costs incurred by the lead firm in dealing with common issues are typically recoverable as part of the overall costs of the litigation. However, this also places significant responsibility on those acting for the group to ensure that work is conducted efficiently and proportionately.

Where costs are considered excessive, there is a risk that the receiving party be liable for reductions on assessment, particularly where the court takes the view that the level of expenditure cannot be justified.

This is particularly relevant in cases where enhanced hourly rates or extensive resource allocation are deployed.

 

Proportionality and the Pressure of Scale

The principle that costs means costs incurred reasonably and proportionately remains central, but its application becomes more complex in the context of group litigation.

While the overall value of a group claim may be substantial, the value of individual claims may be relatively modest. This creates tension between:

• the need to pursue common issues effectively
• the requirement that costs bear a reasonable relationship to the individual claims

Courts are increasingly alive to this issue, particularly where the scale of the litigation risks obscuring the proportionality of the costs incurred.

 

Funding and Cost Exposure

Funding arrangements play a significant role in shaping the costs landscape in group litigation.

The use of conditional fee agreements and litigation funding can facilitate access to justice, but also introduces additional layers of cost and complexity. Where funding is in place, courts may take a closer interest in how costs are incurred and whether they remain proportionate.

This is particularly relevant where adverse costs exposure is spread across a large claimant group, raising questions about fairness and risk allocation.

 

Are Courts Losing Patience?

There is a growing sense that courts are becoming less willing to accept the scale of costs often associated with large group actions without closer scrutiny.

This does not mean that group litigation is being discouraged. Rather, it reflects an increasing emphasis on ensuring that:

• costs remain proportionate despite the scale of the claim
• inefficiencies in the conduct of litigation are addressed
• the structure of group litigation does not lead to unchecked cost escalation

In this sense, the court’s approach may be evolving from one of facilitation to one of more active control.

 

Practical Implications for Practitioners

For those involved in group litigation, the key takeaway is that costs will be subject to closer scrutiny as claims increase in size and complexity.

Parties should be prepared to justify:

• the level of costs incurred in dealing with common issues
• the allocation of costs between common and individual claims
• the efficiency of the approach taken to administering the litigation
• the impact of funding arrangements on overall costs

In many cases, the management of costs may become as important as the management of the substantive issues.

 

How Greener Costs Can Assist

Group litigation presents unique challenges in relation to costs, particularly where large numbers of claimants and complex issues are involved.

Greener Costs provides specialist advice on all aspects of group litigation costs, including the allocation of common costs, the preparation of costs claims, and representation at detailed assessment.

Our team works with legal professionals to ensure that costs are managed effectively and remain proportionate, even in large-scale and complex claims.

If you require assistance, contact Greener Costs today:

📞 01204 263047
📧 info@greenercosts.co.uk

 

Frequently Asked Questions

What are common costs in group litigation?

Common costs are those incurred in dealing with issues that affect all claimants in the group, such as liability or expert evidence.

How are costs shared in a Group Litigation Order?

Costs are often shared between claimants on an equal proportion basis, although the court may order otherwise depending on the circumstances.

Can the court limit costs in group litigation?

Yes, the court can impose costs capping orders or take a more active role in controlling costs through case management and assessment.

What happens if costs are considered excessive?

Costs may be reduced on detailed assessment, and the receiving party may not recover the full amount claimed.