High Court considers cut-off date and costs of advertising under a GLO

United Kingdom

Financial services disputes and investigations
Litigation and dispute management

06-04-2021

Weaver v British Airways Plc [2021] EWHC 2017 (2 February 2021)

Facts of the case

Following a cyberattack on British Airways ( BA ), large numbers of claims were made alleging that the attack’s success was a result of BA’s failure to put in place sufficient security measures to safeguard customer data, placing BA in breach of the General Data Protection Regulation 2016/679 and its contractual obligations.
BA obtained a Group Litigation Order ( GLO ), which provided that any claimants wishing to join the action must issue and serve a claim form by 17 January 2021 (the Cut-off Date ). This was later extended by agreement to 3 April 2021. As part of the GLO, the Claimants’ solicitors were to take reasonable steps to publicise the GLO in an agreed form. Subsequently, the Court directed the case proceed as a split trial of liability and quantum.
The Claimants sought to (1) extend the Cut-off Date until one year after the trial on liability and, separately, (2) include various advertising costs of publishing the action in the media as part of their costs budget (such costs to be recoverable from BA in the event it was unsuccessful at trial). BA objected on both counts.

Judgment

On issue (1), Mr Justice Saini explained that the correct approach is to require the Claimants " to establish that there is some development or feature which justifies an extension of the cut-off date."
The Court accepted the Claimants’ argument that a further extension would be justified on the basis of access to justice, proportionality and cost saving, all of which serve the overriding objective in CPR 1.1. It noted that only 5% of the 500,000 eligible individuals had joined the claim at the time of the hearing. This had to be balanced against BA’s entitlement to certainty as to the extent of the group, as this would impact both the allocation of resources to the claim and any settlement strategy.
In balancing the “ certainty principle ” with the desire to ensure access to justice, the Court held that a comparatively modest extension of two months was appropriate to allow a recent burst of advertising to bear fruit. It was noted that further potential claimants were not permanently shut out after that date and could still apply to join.
On issue (2), the Court accepted BA’s contention that the Claimants’ advertising costs for very substantial media publicity were not envisaged by the GLO and not recoverable from BA as a matter of law. Citing the Court of Appeal’s decision in Motto v Trafigura [2012] 1 WLR 657 (CA), the Court held that the costs of “ getting the business in ” should be treated as part of a solicitor’s overheads and not costs of the litigation.

Analysis

The decision will be welcome news to defendants who look to a fixed cut-off date to help them take an informed view on potential liability and strategy for dealing with such claims.
GLO’s are opt-in claims (where a claimant must positively join the action by bringing a claim) and claimant firms rely on mass advertising to reach potential claimants and bookbuild. As the judgment confirms these costs are not recoverable even if the claimants are successful at trial, it will increase claimant firms’ interest in potential opt-out class action claims. The Court of Appeal’s decision in Lloyd v Google has opened the door to potential opt-out claims, particularly in the context of data privacy, and the Supreme Court’s decision will be awaited with interest.

For more information, please contact Jennifer Miles or Steen Cooper .

Jennifer Miles
Partner
+44 20 7919 0817
+44 20 7919 0817

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