Over the last week, numerous national media outlets have reported that more than 1,000 students have joined a “class action lawsuit” to claim compensation for the disruption caused by the recent UCU industrial action over USS pensions.
At least one law firm has set up a website to enlist students to “sign up” for a group litigation order (GLO) and the lead solicitor is quoted as saying that “a set of 10 to 20 universities” would be sued as part of the class action. The solicitor is also quoted as saying that “over 20,000 undergraduates attend each large UK university. Paying approximately £500 compensation each to 20,000 students would cost £10m”.
With respect to the solicitor involved, the sweeping nature of the latter statement is a simplistic view of a complex legal landscape. In order to claim compensation, those students would each need to prove they had established a loss and each individual student’s circumstances (not to mention their contractual relationship with their university) will be different. So with that in mind, how would a group litigation order work, in circumstances where each student will have a different claim, arising out of the same industrial action?
What are group litigation orders?
A GLO is an order made by the court to enable it to manage litigation where there are multiple claimants or defendants involved in claims which give rise to “common or related” issues of fact or law. GLOs are appropriate where there is a common issue which, if decided in one case, would be binding on all cases.
Common scenarios where a GLO may be used include claims against pharmaceutical companies (when hundreds of people have been affected by the same drug) or where there are multiple victims of the same accident or event, such as the families of the victims of the Hillsborough tragedy. In those cases, it is clear that the matter of liability could be established by testing one victim’s case, without the facts of each case needing to be tried separately.
The case(s) in question
In the case of the student claims, however, it is not easy to see how they can be consolidated such that a few cases could be heard in order to determine the many. The circumstances giving rise to the claims – i.e. the industrial action – may be the same, but each student will have been impacted differently, each institution will have implemented different contingency plans, and the terms of the student contract will be different in each case (even varying from cohort to cohort and course to course within the same institution). There is unlikely to be a commonality of issues of either fact or law that makes it appropriate for the cases to be dealt with under a GLO.
Ultimately, however, this is a question for the court to decide and it has wide powers to decide how a GLO should work once such an order has been made. In the case of the students, their representative would need to persuade the court to make a GLO by making an application, which ought to be served on any institution against whom a claim has been (or will be) brought. Those institutions ought to be given an opportunity to respond to the application, which is likely to be determined by the court at a hearing. The application may be made either before or after one or more claims have actually been issued.
Assuming the students’ representative persuades the court to make the GLO, it would be a matter for the court to decide how the GLO should work in practice i.e. whether sub-groups should be created (perhaps on an institution by institution basis); or whether a small number of cases should proceed as test cases. Once the GLO is made, any party can apply to the court to seek to be removed from the register of claims within the GLO.
Ultimately, there are pros and cons to cases being dealt with under a GLO. It is likely to be less expensive in the long run to defend a handful of claims, than hundreds (or more) of individual small claims. However, it remains very difficult to see how a GLO could effectively operate in the context of the student claims, given the differences of fact and law that will exist from student to student and university to university.
If there is any comfort to be drawn, it is from the fact the student’s representative is also quoted as suggesting students could consider appealing to the Office of the Independent Adjudicator (OIA) as a “first step” if they’re unhappy with institutional responses. This comment suggests that no claims have, as yet, been commenced and students are likely to exhaust internal complaints procedures in the first instance, then with the OIA, before leaping to litigation. It is to be hoped that the vast majority of complaints will be resolved internally, minimising the risk of litigation in the future, whether on a class action basis or otherwise.
Funny how HE Wonks defer so much to lawyers, but hate rigorous and peer reviewed research on, I dunno, managing high performance high commitment organizations, evidence of ethnic and gendered inequality in universities, and/or basic research methods and ethics on how to conduct a survey. Examples of last running from UUK survey of employers through student satisfaction surveys.
Funny how sector insistent on charging its fully qualified, excellent researchers at FEC, but completely deny said researchers’ expertise when it comes to their own organizational processes and practices.
We sell research. Use researchers ourselves ? Nah, lawyers.
I agree with Bill Cooke. This firm and Catherine Savage are hardly independent voices – both work for universities and make their living out of operating on behalf of senior management. So, this ‘voice of a professional lawyer’ is in fact precisely the reverse of that. I’m currently part of a group action against VW for its cheat software. Everyone’s cars and experiences are different – not stopping a group action. I should think the impact on students of the strike is more homogeneous than that. The reality is that universities, having embraced the ‘market’ route are now reaping the consequences and don’t like it – and lawyers acting for them are likely to tell them what they want to hear.
I found my 1998 draft student contract in my book ‘The Law of HE’ published that year, 20 years ago, and only wish a model something like that had been adopted. Nobody did of course, because as Rebecca says there are law firms who make a very good living advising institutions and we amateur authors do not carry professional liability insurance. Most issues I believe can be resolved at much lower cost, using current and retired HEI professional staff. The law itself is not complicated, believe it or not. The 2012 Farrington & Palfreyman version of the ‘contract’ is more detailed, is now being adapted by at least one HEI and is cheap at the price (advert).