Ode to legal unity: how many claimants may share the embrace of one claim form?

The majority of class actions or claims for ‘collective redress’ in England and Wales traverse similar legal paths: (i) a singular, omnibus, claim form is issued against a defendant on behalf of individuals named in a schedule, (ii) following case management, the court will order the trial of a small sample of those claimants to test the common issues between them (see for instance Upham & Ors v HSBC UK Bank PLC (Rev1) [2024] EWHC 849 (Comm), in which this firm was instructed), and then (iii) the parties will seek to apply the judgment to the balance of the class, resolving the proceedings.

This process, catered for under CPR r7.3 and 19.1, is cost effective, and reduces the court’s administrative burden. CPR r19.1 relevantly provides “[a]ny number of claimants or defendants may be joined as parties to a claim” and CPR r7.3, “[a] claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings,” There are other regimes for bringing group claims, but none are as efficient or popular: (i) group litigation orders or ‘GLOs’ (CPR r19.21 et seq) are cumbersome with just 123 having been ordered, (ii) collective proceedings orders or ‘CPOs’ are made in the Competition Appeal Tribunal and therefore not relevant to litigation generally, and (iii) the ethereal representative proceedings or ‘opt out claims’ under CPR r19.8 are so seldom, that they are tantamount to litigation unicorns (do let us know if you catch one).

Entropy

It is now difficult to imagine a system without class actions, allowing a claim to be pursued for a group or class of claimants, they have become ubiquitous with access to justice. Yet, over the last two years or so, despite their effectiveness and uncontroversial nature, there has been entropy in group claims which have come under the court’s spectre, raising the question ‘How many people can use a single claim form to start all their claims?’. For practitioners, this was not something that needed to be asked still less answered. But, in Abbott and others v Ministry of Defence [2022] EWHC 1807 (QB), a case concerning 3,560 claimants pursing the MoD for personal injury, the High Court directed that multiple claims could not be ‘conveniently’ disposed of in the same proceedings.  Master Davison determined that, despite having a “have a common defendant and a number of common themes” [6] it was not permissible for the claims to be issued on one claim form. The claims were “far, far too disparate” and the proposal to select 16 “lead cases” for trial was unrealistic because many of the remaining cases would be unresolved, requiring further litigation.

Regularising the Position

In 2023, Master Davison’s decision was overturned by the Divisional Court (Dingemans LJ and Baker J) in Abbott and others v Ministry of Defence [2023] EWHC 1475 (KB). The court observed:

• First, CPR 19.1 allows any number of parties to be joined to a claim under CPR Part 7 (or equivalent).
• Second, there is no absolute limit in the CPR on the number of claimants on a single claim form. Weight of numbers alone is irrelevant to whether it is appropriate, subject to the convenience test in CPR 7.3.
• Third, convenience is an “ordinary word” [53], conveying usefulness or helpfulness. Thus, the convenience test referred in CPR r7.3 is only that common disposal be convenient. At [73] “If there are likely to be common issues of sufficient significance that their determination would constitute ‘real progress’ towards the final determination of each claim in a set of claims, that could be enough for a conclusion that common disposal rather than separate disposal of that set of claims would be convenient” (the real progress test).
• Fourth, reference to “the same proceedings” in CPR r7.3 does not necessarily equate to a single trial [54]. The question was not whether the claims could be tried at a single trial hearing, but whether they had sufficient commonality of significant issues of fact that it would be useful or helpful, in the interests of justice, that any determination of those issues in proceedings brought by any one of the claimants “to be of real significance for all the rest” [77] (the real significance test).
• Finally, “the significance in question has the character of findings that bind” [77] the parties in claims under CPR r19.1 (the binding test)

Points one and two are trite and should never have been required to be restated. Points three, four and five did however open Pandora’s box as to what precisely are the tests under CPR r7.3 and 19.1, as to which: enter the Court of Appeal.

Lingering Doubt

In Morris v Williams & Co Solicitors [2024] EWCA Civ 376, a claim concerning 134 claimants against their law firm, Williams & Co Solicitors, the Court of Appeal considered the correctness of the tests applied by the Divisional Court in Abbott following the “controversy over what precisely [it] decided” [5].

Each of the Claimants sought damages for breaches of the Solicitors’ duty to advise properly in relation to their investments in one or more of 9 separate development projects promoted by the same group of companies. The solicitors said bringing the claims in a single claim form was an abuse of process and made a strikeout application on the basis that CPR r19.1 and 7.3 did not apply. Expressly following Abbott, HHJ Jarman KC was satisfied it was convenient to dispose of the claims in the same proceedings.

On appeal, the Defendant argued that Abbott was wrongly decided because:

• The proper interpretation of CPR r19.1 and 7.3 severely restricted the situations in which multiple claimants can be heard under one claim form.
• CPR r7.3 refers to “claimant” in the singular.
• “claim” within CPR r19.1 should be taken to mean “single cause of action” and not “proceedings” as Baker J had found in Abbot.
• At [6] “it is inconvenient and unfair for these 134 Claimants to group together their disparate claims. The process has already led to inadequate disclosure, and will lead to the Solicitors being unable properly to defend themselves.”

In response, the Claimants, relying on the findings in Abbott, submitted that:

• The Divisional Court in Abbott was correct.
• In any event, what the Defendant was asking the Court to do was to effectively “set the clock back decades” [7] in respect of what kinds of claims could be started under a single claim form.
• Whatever the correct test was, their claims could be conveniently disposed of in the same proceedings within the meaning of CPR r7.3.

On 18 April 2024, the Master of the Rolls, Vos J, handed down judgment dismissing the Defendant’s appeal, but rejecting both parties’ primary positions on the law. Vos J found:

• First, section 6 (1) of the Interpretation Act 1978, which applies to the CPR, provides for the singular “claimant” to include the plural save where the context otherwise requires.
• Second, the meaning of the word “claim” in CPR r.19.1 in the context means “a set of proceedings commenced by a claim form”. At [47], the Court said, “It is true that the word “claim” is used elsewhere in the CPR to mean a cause of action, but it would make a nonsense of 19.1 if it meant that in that rule.”.
• Third, turning to convenience under CPR r7.2, dismissing the three tests for bringing a claim under CPR r19.1 in Abbott, the regime permitting multiple claimants in one claim form under ought to be construed as “as meaning what [CPR r19.1 and 7.3] say: any number of claimants or defendants may be joined as parties to proceedings, and claimants may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. There is no exclusionary rule of real progress, real significance or otherwise. The court will determine what is convenient according to the facts of every case.” [49]. There is no ‘binding requirement’: “Lead claims are often chosen specifically to resolve specific issues that arise in claims made by some claimants and not others [51]”.
• Finally, the previous regime established under the Rules of the Supreme Court in general and Order 15 r.4 in particular should be favoured:
  • Order 15 r.4 specifically permitted multiple claimants where, among other aspects, “some common question of law or fact” arose. The court noted this formal requirement was not brought into the CPR and invited the Civil Procedure Rules Committee to consider at [8] “whether it would have been better if it had been.”
  • The Supreme Court Procedure Committee Guide for use in group actions, dated 23 May 1991, specifically acknowledged the financial advantage for claimants, at [43]: “To issue one writ on behalf of 1,001 plaintiffs instead of one writ on behalf of each of those plaintiffs provides a saving of £70,000 in court fees for the writ alone…”

Given HHJ Jarman KC’s determination that the 134 claims involved significant common issues of law and fact, the Court of Appeal reassessed the case management discretion. The Court concluded without hesitation that the claimants were justified in using a single claim form, as it would be convenient to address their various claims in a unified set of proceedings..

Comment

Unpacking Morris, those seeking to bring class action under CPR r7.3 and 19.1, must satisfy themselves that:

• What commonalities, if any, unify their clients’ claims. HHJ Jarman KC “found that common questions of law or fact arose in all the Claimants’ claims, and the Claimants’ claims all arise out of the same series of transactions” [60], a finding undisturbed by the Court of Appeal.
• Numerous factors will be germane to this consideration. The Court of Appeal concurred with the Divisional Court in Abbott that the convenience of a common disposal is distinct from the convenience of common case management and does not necessitate a single trial.
• There is no test beyond CPR r7.1. Convenience will be deemed satisfied where Order 15 rule 4 would apply, or where resolving common issues would be binding on all parties.
• Technical distinctness of claims does not bar an omnibus form, but separate consideration of individual causes of action often negates common disposal’s convenience.

The omnibus claim form lives on but is no mere procedural shortcut. It necessitates meticulous pleading of individual case facts (via a ‘Master Particulars of Claim’ together with schedules of individual losses etc following which, the provision of ‘Individual Points of Claim), enabling the court to devise a fitting model for case management and trial. The author of this article echoes the Master of the Roll’s call for the Civil Procedure Rules Committee to “look again” [8] at whether the wording at Order 15 r.4 should be brought into the modern CPR. Until then, claimants and practitioners must tread with caution and precision.

Our Commercial Dispute and Class Action team has considerable experience in advising on group litigation. Should you require any assistance, please contact us. We are experts in this field and are here to help.

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