Still convenient, for now? Lessons from Black Horse v Angel on the future of class actions

‘This case has achieved almost nothing in its three-and-a-half year lifetime, save to run up extravagant costs.’

‘It sometimes seemed that every point was being taken by one side against the other, regardless of significance.’ 

Judging by these quotations, one might assume that the right to bring multi-claimant claims in a single claim form was clear-cut. In fact, it is anything but.

In recent years, the courts have come to multiple (and conflicting) conclusions about what the word ‘convenient’ means. And its meaning is, literally, the arbiter of when it is – and is not – permissible for multiple claimants to bring their claims on a single claim form. Against that backdrop, arguably it is risky (possibly negligent) for lawyers not to take every point. Not only that, but this case (and others) have led to the Civil Procedure Rule Committee itself considering not once, but twice, the meaning of the word ‘convenient’ in the context of multi-party claims in the space of two years. At the time of writing, it remains to be seen what it decides it really means.

For now, however, the key message is that in this case it is convenient (and therefore permissible) to continue to bring multiple claims in a single claim form. The Court of Appeal decision in Morris & Others v Williams & Co Solicitors [2024] EWCA Civ 376, in which Penningtons Manches Cooper acted for the successful claimants, remains the leading authority, and this decision provides further guidance on the future of group claims.

The procedural context

CPR 7.3 provides: ‘A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.’

In this case, over 5,000 individual claimants issued claims on eight claim forms against eight defendants in 2022. The claims were issued in the county court. In 2023, the court determined that it was not ‘convenient’ for them to be brought as group claims and that they should be disaggregated. The claimants appealed to the High Court, but before the hearing of that appeal, the Court of Appeal gave judgment in Morris v Williams, finding that the test of convenience is very broad, and should not be restricted by the conclusions of an earlier decision of the Divisional Court in Abbott v Ministry of Defence [2022] EWHC 1807 (KB). For more information on the decision in Morris, see here.

On appeal to the High Court in Angel v Black Horse, Mr Justice Ritchie held that in light of the Court of Appeal’s conclusion in Morris v Williams¸ the test of convenience had been met. He re-exercised the court’s discretion to permit the claims to continue in the eight claim forms and made directions for defences and disclosure. In this new appeal to the Court of Appeal by Black Horse and others, the lenders argued that Mr Justice Ritchie had been wrong to re-exercise the discretion, and wrong to impose the disclosure and case management directions, including proceeding via lead cases.

Key analysis

As this was an appeal against a case management decision of a High Court judge, the Court of Appeal could only consider whether the judge’s decision was wrong due to an ‘identifiable flaw’  or a ‘gap in logic’. This means that while the appeal decision is important, it does not set wider principles to be followed on the same issue. The key findings and recommendations of note are:

• the test of convenience is ‘broad’ with no rigid definition. The word is an ordinary one, and many different factors may influence the ‘convenience’ analysis;
• the existence of binding common issues may be a relevant factor but is not a prerequisite;
• if claims are similar in nature, and give rise to the same general issues, the claims are likely to have common issues of law and fact. This may be a factor the court takes into account when deciding ‘convenience’. This remains the case even if, ultimately, each claim requires separate evaluation;
• simply because the determination of lead cases is not binding on the other parties, this does not mean that an ‘omnibus’ claim fails the convenience test. Persuasive (if not binding) results in lead cases are still important. In this case, the court agreed that the trial of lead cases would be a sensible step, and a clear pointer towards the disposal of the claims under CPR 7.3;
• it is within the scope of judicial discretion to order generic defences to ‘omnibus’ claims such as these. They may assist in crystallising the issues in dispute and are vastly less expensive and time consuming than pleading separate defences to 5000 separate claims;
• it is also within the scope of judicial discretion to order defendant disclosure of brokerage agreements at this stage. Claimants would have the right to seek pre-action disclosure of these agreements in any event. While there may be costs implications and administrative difficulties, these are minimal in comparison to the difficulties of dealing with 5,000 separate pre-action disclosure applications;
• the possibility of efficient case management for the court is a relevant consideration but it is not determinative.

The future of multi-claimant claims

Lord Justice Coulson, giving the leading judgment, concluded that the way in which multi-claimant claims are pursued is a topic well worth reconsideration by the Civil Procedure Rule Committee.

However, by the same token this judgment (and that of Morris, Abbott and the High Court decision in Black Horse v Angel before it) emphasises that the test of ‘convenience’ is one that works well and does not need further definition. Guidance in recent case law has refined the factors that may be relevant to the ‘convenience test’ (and these factors are neatly summarised at paragraph 46 of this judgment). The ultimate determination is, however, one for the individual judge to make, having regard to all the factors. Different claims will have different results because the question of convenience is ‘fact-specific to the claimants and the claim form’.