Andrew Nugent Smith is the managing director of the multi-claimant litigation specialist Keller Postman UK. He tells The Brief about his firm’s strategy, the market for class actions in the UK and the role collective redress plays in providing access to justice.

Class actions and other forms of collective redress have a long history in the US but remain a relative novelty in the UK. They are, however, gaining momentum, and a number of high-profile actions that have either already concluded or are currently active relate to the diesel emissions scandal, various large-scale data breaches, consumer competition matters and workers’ rights.

During the last decade the UK multi-claimant market was largely dominated by Leigh Day, Edwin Coe and Slater + Gordon. It was against this background that the US class action firm Keller Lenkner (now Keller Postman) launched into the UK in early 2020.

The UK launch was spearheaded by Andrew Nugent Smith, managing director of Keller Postman UK. The operation consists of four offices: Birmingham, London, Liverpool and Manchester.

The firm initially opened in London, and a presence there was always high on the firm’s agenda. Nugent Smith explains, “We’re doing big cases in the London courts so we need a presence there. And, if we want to attract lawyers who have trained and practised at top London firms then the obvious place to do that is in London.”

The firm has since also opened offices in Liverpool, Manchester and Birmingham.

Birmingham is the firm’s business services hub, while Manchester focuses on claims relating to financial products and Liverpool is the firm’s centre of excellence for data privacy claims. Liverpool also houses the firm’s UK based client services team, which is supported by an outsourced company based in South Africa.

The firm currently employs around 85 people in the UK.

Bringing collective redress to the UK

Nugent Smith studied law at the University of Birmingham and completed his LPC at De Montfort University before joining Simmons & Simmons as a trainee in 2001. After qualifying in 2003 he remained with the firm until 2008 when he decided he “wanted to pursue a career outside of the big smoke” and moved to Wragge & Co (now Gowling WLG following mergers in 2014 and 2016) in Birmingham, initially as an associate in its commercial litigation practice.

Nugent Smith was promoted to partner in 2015 and, around that time, began to develop an interest in litigation finance and after-the-event insurance. “I was advising clients on litigation funding arrangements and also advising funders on litigation finance transactions, which really opened my eyes both to litigation funding and collective redress,” he recalls.

In parallel with this, he had been tasked with US business development by Wragge & Co, and visited the US several times a year. It was on one of those trips that he first came across Gerchen Keller Capital which, despite being a relative newcomer to the US litigation finance market, was quickly establishing itself as a leading player in that space.

Gerchen Keller Capital was acquired by the litigation finance house Burford Capital in 2016 and, a little over a year later, in January 2018, its founders Ashley Keller, Travis Lenkner and Adam Gerchen established Keller Lenkner as a self-funded class action specialist law firm. “It was the law firm that they had always wanted to be able to fund,” Nugent Smith says.

“Keller Lenkner then started looking at the UK market,” he continues. “My view at that time was that it would grow significantly over the next five-to-ten years because dieselgate was just breaking and you had the public sector equal pay cases that had gone through the Employment Tribunal.

“You also had GDPR coming in early 2018. You had widespread dissatisfaction with the way that brands had treated consumers, and there was no shortage of corporate wrongdoing, and therefore cases to bring.”

The firm decided to expand to the UK and, during the second half of 2019, Nugent Smith helped the firm establish itself. Then, in early 2020, Keller Lenkner UK opened its doors and he joined the firm officially as managing director on 1 May 2020.

Class actions

The firm hit the ground running, bringing an emissions case against VW, and then another against Mercedes. It also brough claims against Uber, addressing the fact drivers were classed as contractors not workers, and therefore not entitled to employment rights including holiday pay and the national minimum wage.

Nugent Smith says, “There was a case going through the Supreme Court already, so, in anticipation of that case going in favour of the drivers, we built a very substantial book of over 10,000 clients, against Uber. And then we started looking at other areas like data, privacy, other equal pay cases. We’ve got 25,000 clients against Tesco, for example.

“We then also saw an opportunity in financial products, including investment fraud and mis-selling: people who have been given bad financial advice, often negligently and quite often fraudulently.”

Most of the cases litigated by Keller Postman UK, as the firm became known earlier this year, are “opt-in” class actions.

These differ from “opt-out” cases in which an individual “class representative” goes to court on behalf of an entire defined class of people, for example customers who bought a particular product, and brings an action on behalf of all of them. If the case in won the class representative then advertises the victory and invites all other class members to come forward and collect their share of the compensation.

By contrast, for “opt-in” class actions of the sort usually litigated by Keller Postman, claimants need to sign up before the case goes to court. Social media advertising, Nugent Smith says, plays a key role in recruiting clients for these claims.

He explains, “Social media has revolutionised these types of claims. It is very data driven, it’s very efficient, it’s very traceable.

“It’s very easy to know which adverts you are placing on social media are effective. And that is why firms have managed to build client cohorts of tens of thousands of people – we now have about 150,000 individual clients signed up across our cases.”

Although most of Keller Postman UK’s claims are brought as class actions, its claims against financial advisers for negligent financial advice are brought on an individual basis. However, the close similarities between each of these cases mean the firm is able to take advantage of economies of scale that make such claims financially viable, both for the firm and for clients.

Managing the pipeline

Being the sister firm of Keller Postman in the US, Nugent Smith says, gives Keller Postman UK an unusual degree of flexibility. He explains, “We can react very quickly to things that happen in the market.

“So, in our Mercedes case, for example, we went from thinking about it to signing up with our first clients within six or seven days. Had we been a traditional law firm that would have taken us six months.”

Group litigation can be a slow process, with cases often taking between three and five years to conclude. However, the firm has already concluded cases against British Airways, Ticketmaster, most of the high street banks, and one of its workers’ rights claims.

Big cases currently underway include actions against VW, Mercedes, Vauxhall, Tesco, Asda, Sainsbury’s, Morrisons, Easyjet, the Police Federation of England and Wales and Equifax, as well as hundreds of individual claims against financial advisers.

Nugent Smith says, “We have some very sizeable projects under development. We always have some cases that are in the settlement phase, some that are in litigation, some that are just about to go into litigation, but then, of course, we’re always feeding the pipeline.

“So, at any given point in time we’ll have cases that are all at different phases of the lifecycle.”

Access to justice

Looking to the future, Nugent Smith says he believes collective redress will become increasingly common as part of the UK’s legal landscape, and says Keller Postman UK’s aim is “to become the pre-eminent firm in that space”.

He strongly refutes any suggestion that “we’re just ambulance-chasing class-action lawyers”. He says, “We’re providing access to justice for people who wouldn’t otherwise have it, because we’ve got the ability to bring claimants together to create the economies of scale that make these cases viable.

“We also think we’ve got quite an important role in society, sitting alongside regulators. The threat of collective redress actions is now a major incentive for corporates to behave in accordance with the law.

“Almost of our cases are based on some sort of regulatory finding. Historically corporate wrongdoing hasn’t really gone financially punished because of the lack of an efficient procedure to bring these claims but now it is, and substantial compensation is now ending up in the pockets of the victims.”

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