Costs Update #27

Congratulations are due to Andrew Hogan on his recent election as Head of the Costs Group at Hailsham Chambers — a well-merited recognition of one of the most thoughtful practitioners at the Costs Bar.

Andrew has also been busy writing. As well as his book about Artificial Intelligence which is aimed at lawyers (Andrew and the Marvellous Analytical Engine), his recent analysis of representative actions under CPR 19.8, published in Litigation Funding magazine, is well worth the attention of anyone with a large group claims practice — or anyone tempted by one.

Since Lloyd v Google, representative actions have attracted considerable attention and considerable disappointment in roughly equal measure. The appeal is obvious: an opt-out class, a single set of pleadings, no laborious book-building. For funders and claimant teams alike, the prospect of running a mass dispute without the machinery of a Group Litigation Order has proved hard to resist.

The courts have been less easily seduced.

As Andrew’s survey of the post-Lloyd authorities shows, the judiciary has used the “same interest” requirement as a disciplinary tool — separating cases where the procedure genuinely fits from those where it is being “shoehorned” to gain tactical advantage. Commission Recovery v Marks & Clerk illustrated CPR 19.8 working as intended. Prismall v Google and Smyth v British Airways illustrated the opposite: claims with moral pull and a compelling class-size narrative, but where individualised issues fractured the “same interest” test from the inside.

Three practical points stand out:

First, the remedy matters as much as the cause of action — gain-based or account-type relief sits more comfortably in the procedure than damages claims requiring individual assessment.

Second, funders face a structural problem no clever drafting entirely solves: most of the class has signed nothing, which means the conventional funding agreement cannot bind the individual litigants.

Third, the courts are increasingly willing to scrutinise not just whether a claim fits the procedure, but why it has been brought this way — motive and control will be examined, and a litigation model that serves the funder’s economics rather than the class’s best outcome is unlikely to survive that examination.

CPR 19.8 remains powerful where the dispute is genuinely common. Where it is a disguised GLO with the difficult parts deferred, the courts are, as Andrew puts it, “policing that boundary with some enthusiasm.”

Andrew Hogan’s full analysis appears in Litigation Funding magazine, February 2026. He is Head of the Costs Group at Hailsham Chambers.

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