Halloween has become famous for pumpkins, guilt tripping neighbours into handing out sweets and raunchy feline themed costumes.
But the Autumnal holiday has more sombre roots.
Halloween originated from an ancient Celtic festival, Samhain. The Celts believed that on the night before their new year, the boundary between the worlds of the living and the dead became blurred. On this night, it was believed the ghosts of the dead returned to the earth. To ward off such ghouls, people would, naturally, wear costumes and light bonfires.
It seems fitting that at this time of year then, the spectre of England's class action regime pushes at the door of the realms of the living.
Observers of England's ‘opt-out’ representative claim regime (class actions' Anglicised title) will recall that less than two years ago the UK Supreme Court unanimously ruled in favour of Google in the Lloyd v Google appeal.
Although the Court left the door open, the judgment in this data privacy case set a high bar by adopting a narrow interpretation of CPR 19.6's requirements for representative claims and in doing so created a question mark over the practicability of representative actions - much to the chagrin of those who had hoped that the judgment would take a liberal view of the requirements and thereby green light future representative claims.
Central to that narrow interpretation was the approach to the “same interest” requirement - whereby the representative of a class (as well as members of that class) needed to have the same interest in a claim and that individual damage must be proven where damages across the represented class could vary.
All was lost, or so it seemed…
In February this year a High Court decision emerged - Commission Recovery Ltd v Marks & Clerk LLP  - where it was ruled that a claim for secret commission could proceed as an ‘opt-out’ representative claim under CPR 19.6, despite there being differences in the claims and remedies sought.
This more liberal approach was founded on the overarching observation that it was not a requirement of CPR 19.6's jurisdiction to resolve all possible claims. Furthermore, it was held that complexities with the case or insufficient factual information about each claim for the purposes of determining the “same interest” requirement should not defeat a representative action.
In short - the Judge found that the court should still be prepared to permit representative actions where the decision of common issues of law or fact would present opportunities for advantages of justice and efficiency.
In other words, just because it isn't perfect doesn't mean we shouldn't do it.
Life, it seemed, had been breathed back into the UK's representative claim regime. Or at least, the lines between the living and the dead had been blurred…
And now we reach the end of this stretched metaphor. All eyes now turn to the Court of Appeal, who will opine on the High Court's decision on 21 November 2023.
Class action evangelists will be hoping that the Court of Appeal follows suit and blesses the flexible attitude of the High Court and, in doing so, revitalises the representative regime at the first opportunity.
"The fact that it appears the commission varied between clients does not deflect from that point. In any event there are still present at least some of the "advantages in terms of justice and efficiency" if "common issues of law or fact are decided through a representative claim, leaving [over] issues which require individual determination" - Mr Justice Robin Knowles CBE