Rule 94 Collective settlement where a collective proceedings order has been made: opt-out collective proceedings
Where a collective proceedings order has been made and the Tribunal has specified that the proceedings are opt-out collective proceedings, the claims which are the subject of the collective proceedings, may not be settled other than by a collective settlement approval order issued in accordance with this rule.
Any offer to settle by a defendant in the collective proceedings shall be made to the class representative.
An application for a collective settlement approval order shall be made to the Tribunal by—
the class representative; and
the defendant in the collective proceedings, or if there is more than one defendant, such of them as wish to be bound by the proposed collective settlement.
The application referred to in paragraph (3) shall—
provide details of the claims to be settled by the proposed collective settlement;
set out the terms of the proposed collective settlement, including any related provisions as to the payment of costs, fees and disbursements;
contain a statement that the applicants believe that the terms of the proposed settlement are just and reasonable, supported by evidence which may include any report by an independent expert or any opinion of the applicants' legal representatives as to the merits of the collective settlement;
specify how any sums received under the collective settlement are to be paid and distributed;
have annexed to it a draft collective settlement approval order; and
set out the form and manner by which the class representative proposes to give notice of the application to—
represented persons, in a case where it is expected that paragraph (11) will apply; or
class members, in a case where it is expected that paragraph (12) will apply.
Unless the Tribunal otherwise directs, the signed original of the application for a collective settlement approval order shall be accompanied by five copies of the application and its annexes certified by the class representative or its legal representative as conforming to the original.
On receiving an application for a collective settlement approval order, the Tribunal may give any directions it thinks fit, including—
for the confidential treatment of any part of an application for a collective settlement approval order;
for the giving of or dispensing with the notice referred to in paragraph (4)(f);
for further evidence to be filed on the merits of the proposed collective settlement;
for the hearing of the application.
Any represented person or, in a case where paragraph (12) applies, any class member may apply to make submissions either in writing or orally at the hearing of the application for a collective settlement approval order.
At the hearing of the application, the Tribunal may make a collective settlement approval order where it is satisfied that the terms of the collective settlement are just and reasonable.
In determining whether the terms are just and reasonable, the Tribunal shall take account of all relevant circumstances, including—
the amount and terms of the settlement, including any related provisions as to the payment of costs, fees and disbursements;
the number or estimated number of persons likely to be entitled to a share of the settlement;
the likelihood of judgment being obtained in the collective proceedings for an amount significantly in excess of the amount of the settlement;
the likely duration and cost of the collective proceedings if they proceeded to trial;
any opinion by an independent expert and any legal representative of the applicants;
the views of any represented person in a case to which paragraph (11) applies, or of any class member in a case to which paragraph (12) applies; and
the provisions regarding the disposition of any unclaimed balance of the settlement, but a provision that any unclaimed balance of the settlement amount reverts to the defendants shall not of itself be considered unreasonable.
A collective settlement approval order may specify the time and manner by which—
a represented person or class member, as the case may be, who is domiciled in the United Kingdom on the domicile date may opt out of the collective settlement; and
a represented person or class member, as the case may be, who is not domiciled in the United Kingdom on the domicile date may opt in to the collective settlement.
Where the Tribunal approves the collective settlement after the expiry of the period specified in the collective proceedings order in accordance with rule 80(1)(h)(ii) or (iii) within which persons may opt out or (if not domiciled in the United Kingdom) opt in to the collective proceedings, the collective settlement approval order binds all represented persons except—
a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and
a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.
Where the Tribunal approves the collective settlement before the expiry of the period referred to in paragraph (11), the collective settlement approval order binds all class members except—
a person who opts out of the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order; and
a person who is not domiciled in the United Kingdom on the domicile date and does not opt in to the collective settlement by notifying the class representative in a manner and by a time specified in the collective settlement approval order.
If the Tribunal approves the proposed collective settlement, the class representative shall give notice of the terms of the settlement and its approval, in a form and manner approved by the Tribunal, to the represented persons in a case to which paragraph (11) applies, or to the class members in a case to which paragraph (12) applies, and to any other persons as the Tribunal may direct.
If one or more of the represented persons or class members are to be omitted from the collective settlement, the Tribunal may permit the proceedings to continue as one or more claims between different parties and for that purpose—
order the addition, removal or substitution of parties;
order the amendment of the collective proceedings claim form; or
make any other order that it considers appropriate.
If the Tribunal does not approve the proposed collective settlement, the application for a collective settlement approval order and the terms of the proposed collective settlement may not be relied on at the trial of the collective proceedings, unless all the parties to that application agree in writing.