Creating, and Distributing, Common Funds Under the English Representative Rule

In his claim against Google LLC (‘Google’) for data infringement on behalf of millions of Apple iPhone users, Richard Lloyd has fashioned a ground-breaking and laudatory attempt to obtain modest, yet meaningful, damages for each class member. Mr Lloyd is using the English representative rule (contained in CPR 19.6) to do so, given the continuing absence of any comprehensive and generic class action in this jurisdiction. The litigation has been rightly described by the Court of Appeal as ‘an unusual and innovative use of the representative procedure’. A further appeal is destined for hearing in the Supreme Court in late April 2021. There is no doubt that the representative rule has some characteristics of a more expanded class action procedure, given how it has come to be interpreted over its long history. The question posed in this article, however, is whether the representative rule can facilitate this action, in two respects.