A Thomas Miller Company
Many cases are only economic to fund when claimants with similar claims pool their claims together and agree that the costs of funding and ATE insurance are shared between the claimant group. There have been countless examples of such reciprocity when it comes to costs-sharing in GLOs and representative proceedings in the UK but some cases cannot be grouped through either mechanism. This is why being able to plead a cohort of claims under a single claim form is a vital methodology as it enables claims to proceed which are otherwise not economically viable for risk-sharing retainers, external finance and insurance; ultimately leading to access to justice. Fortunately, a case with ATE insurance arranged through TheJudge has provided welcome clarity on when this is permitted.
On 18th April 2024, the Court of Appeal handed down an important judgment in the context of group actions in Morris & Ors v. Williams & Co (Solicitors) [2024] EWCA Civ 376.
The brief facts of the case are that 134 Claimants issued a single claim form against the Defendant firm of solicitors alleging negligent advice concerning several property development schemes marketed by the Northern Powerhouse Developments group.
Part 7.3 of the Civil Procedure Rules permits claimants to use a single claim form if the claimants’ issues will be “conveniently disposed of in the same proceedings”.
The Defendant, Williams & Co, applied to strike out the claim on the grounds that it was an abuse of process as there was insufficient commonality between the Claimants. It argued that professional negligence claims are inherently individual and that each claim turned on bespoke advice and relied on the case of Abbott v MoD [2023] EWHC 1475 where, at first instance, a claim form listing 3,500 Claimants was held to be an abuse of process. It is worth noting that since then, the divisional court in Abbott v MoD overturned the first instance decision on the basis that there were sufficient common causes of action and fact.
In Morris, the judge at first instance refused to strike out the single claim form. He found that it was appropriate in the circumstances for the 134 Claimants to proceed by selecting lead Claimants with decisions on the common issues binding each claimant.
The Defendant appealed to the Court of Appeal who have now dismissed the appeal and permitted the 134 Claimants to proceed on the basis of a single claim form.
The Court considered the circumstances in which it is permissible under the CPR for multiple Claimants to bring claims in one set of proceedings. The submissions revolved around the proper meaning of CPR 19.1 and CPR 7.3. 19.1 provides that “[a]ny number of claimants or defendants may be joined as parties to a claim”, and 7.3 provides that “[a] claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”. In his leading judgment, the Master of the Rolls concluded that “[a] 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. The court will determine what is convenient according to the facts of every case.” Furthermore, he accepted that more than one trial may be required to finally resolve all the individual claims and stated that “[t]he case management tools of ordering lead claims and more than one trial, whether of preliminary issues or otherwise, are very much part of proceedings brought by multiple claimants under 19.1.”
The Court of Appeal’s judgment provides welcome clarification on an issue of universal importance to groups of claimants in civil litigation where applying for a Group Litigation Order or commencing representative proceedings are not appropriate.
It cannot be ignored that access to justice and proportionality are relevant here. The Claimants argued that, if the Solicitors succeeded, the Claimants would be forced to give up their claims, because of the court fees of £5,000 per Claimant, which would need to be paid if they each had to issue their own claim form. The court system remains prohibitively expensive for many individual litigants and the ability to join with others in a single claim form provides access to justice. Such cases are often conducted by legal advisors on CFA terms, or with litigation funding, and there are invariably ATE insurance policies in place to protect against the risk of paying adverse costs in the event the claims do not succeed. Legal costs, disbursements and ATE insurance premiums would all be higher if each individual had to proceed with their own separate claim. Moreover forcing claimants to issue their own claim forms would clearly inundate the court system and could potentially lead to contradictory decisions between cases.
The substantive case can now continue. Pennington Manches Cooper LLP are instructed on behalf of the claimants and were represented by Simon Johnson and Jennifer Meech from Enterprise Chambers. TheJudge brokered an ATE policy for adverse costs and own disbursements.
