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Court of Appeal rules on class action claims in a single claim form: a question of convenience

Posted: 14/05/2024

Groups of claimants can use just one claim form (saving time and money), if their claims can ‘conveniently’ be disposed of in the same proceedings. But what does conveniently mean, and does it require the claims to involve common questions of law or fact?

This vexed question was recently answered by Sir Geoffrey Vos, Master of the Rolls, giving judgment in Morris & Ors v Williams & Co Solicitors [2024] EWCA Civ 376. Resolving a long-running dispute on the meaning of the term, he held that there is no need for the courts to define ‘a simple English word such as ‘conveniently’’. Whether it will be convenient for multiple claims to be determined in a single set of proceedings started by just one claim form is a matter for the case management judge to assess in the light of all the relevant factors about the case at hand.

Crucially, the Court of Appeal held that at present, unlike other forms of collective redress, claimants do not need to show that the determination of common questions of fact or law would bind all parties. Nor do they need to show that it would constitute ‘real progress’ or be of ‘real significance’ for the determination of all claims. However, given the recent controversy on this point, the Master of the Rolls suggested that it may be ‘valuable’ for this rule to be revisited. He said that the Civil Procedure Rules Committee should consider whether the current rule is ‘working well’ or whether it would be better if it were amended to include (for example) a requirement for ‘common questions of law or fact’ to be present in all the individual claims, as required in earlier versions of the court rules.

This landmark decision arose in the context of a claim brought by 134 investors against a firm of solicitors for negligent advice in relation to nine failed property investment schemes. The claim was issued in a single claim form. The defendant firm, Williams & Co, applied to strike out the claim. It argued that it would not be convenient for the claims to be determined in a single set of proceedings because different advice was given to different claimants, at different times, regarding different schemes, and no decision in one case would bind another. In July 2023, the High Court dismissed the strike out application, finding that there were sufficient common issues between the claims to justify the use of a single claim form.

Williams & Co obtained permission to appeal from the Court of Appeal on two points: the meaning of the relevant rules (CPR 7.3 and 19.1) and whether the test for convenience laid down in recent caselaw was correct (Abbott v. Ministry of Defence [2023] EWHC 1475 (KB), [2023] 1 WLR 4002).

In a detailed judgment charting the history of group litigation in England and Wales over 130 years, the Court of Appeal dismissed the appeal and discarded the various tests laid down by Abbott v. MoD. The only constraint on whether more than one claimant can use a single claim form is convenience. Nothing in the procedural rules or common law imposes additional requirements. The test will be satisfied if common issues of law and fact exist in all cases and if there is a common basis for all claims. It will also be satisfied if the court’s judgment on common issues in one case will bind other cases. But these situations, where convenience is made out, are not formal requirements of the CPR. Convenience must be assessed in every case by reference to the facts of that case.

The impact of this decision is significant. Where claimants cannot meet the ‘common interest’ requirements of group litigation orders or representative actions, a simple, flexible and cost-effective ‘class action’ claim remains available. Defendants to such claims – particularly professional indemnity insurers – have been deprived of the opportunity for an early win.  However, the Court of Appeal noted that ‘active case management’ by the courts is required to ensure that there is no ‘unfairness’ for defendants to group actions.

Pending a review (and any further restrictions), group claimants and those advising them (particularly outside the more well-established realm of competition law claims) are likely to seek to issue their claims sooner rather than later.

This article was co-written by Simon Johnson of Enterprise Chambers.

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