Commission Recovery Ltd v Marks & Clerk LLP [2024] EWCA Civ 9

The Court of Appeal’s decision in Commission Recovery v Marks & Clerk addressed the scope of the representative action procedure under CPR 19.8, which allows one party to bring or defend a claim on behalf of all persons with the “same interest” in the proceedings. The case concerned a claim by Commission Recovery Ltd, a claims vehicle, against the patent and trademark attorney firm Marks & Clerk. The key legal question was the breadth of the “same interest” requirement. Previous authority had interpreted this test restrictively, requiring near-identity of interest among the represented class. This restrictive interpretation had limited the utility of CPR 19.8 as a vehicle for group claims and had led funders and claimants to prefer alternative mechanisms such as group litigation orders or, in competition cases, the CAT’s collective proceedings regime. The Court of Appeal adopted a broader interpretation of the “same interest” test, holding that it did not require identity of interest on every issue and that common questions of fact or law could be sufficient.

This broadening of the test significantly expanded the potential scope of representative actions, making CPR 19.8 a more viable vehicle for group claims across a wider range of subject matters. For the litigation funding market, the decision was of considerable strategic importance. The CAT’s collective proceedings regime is limited to competition claims, and while group litigation orders are available for other types of claim, they carry procedural and costs burdens that can make them unattractive to funders. A broader representative action mechanism under CPR 19.8 offered a potentially more efficient and cost-effective route for funded group claims outside the competition sphere. The decision opened up new opportunities for funders to support representative actions in areas such as consumer protection, data privacy, financial services, and environmental claims, where common issues might now satisfy the broadened “same interest” test.