Practice and procedure – Strike out – Claim form – Multiple respondents issuing single claim form against appellant solicitors seeking damages for alleged breaches of duty – Court refusing application to strike out claim form as abuse of process or failure to comply with CPR 7.3 – Appellant appealing – Whether permissible to bring multiple claims by single claim form under Civil Procedure Rules – Appeal dismissed
Northern Powerhouse Development Ltd, operating through associated companies, promoted nine development projects in different parts of England and Wales. Investors were to be granted leases of units in the developments. The appellant was nominated to act for and advise potential investors (including the 134 respondents) in each of the nine projects.
When each of the respondents instructed the appellant, they were given a standard pack of documents. The respondents maintained that the essential terms of the appellant’s retainers were the same. It was expressly stated in writing that the appellant would explain the effect of any important document, and advise of any risk of which the appellant was aware, or which was reasonably foreseeable.
The respondents issued a single claim form against the appellant seeking damages for breaches of its duty to advise properly in relation to their investments in one or more of the separate development projects. Their main contention was that the appellant failed to warn of the risks of completion not taking place, and of the dissipation of the investment deposits in the meantime.
The appellant applied to strike out the claim form under CPR 3.4(2)(b) and/or (c) on the grounds that the use of a single claim form to advance their claims was an abuse of process or an obstruction to the just disposal of the proceedings, or the claim form did not comply with CPR 7.3. The judge dismissed the application. The appellant appealed.
Held: The appeal was dismissed.
(1) CPR 19.1 provided that “[a]ny number of claimants or defendants may be joined as parties to a claim”, and CPR 7.3 provided that “[a] claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”.
In Abbott v Ministry of Defence [2023] 1 WLR 4002, the court decided that if there were 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; that was the “real progress” test of whether all claims (in a single claims form) could be conveniently disposed of in the same proceedings pursuant to CPR 7.3.
The appellant argued that Abbott was wrongly decided because the words of CPR 19.1 and 7.3 severely restricted the situations in which numerous claimants could bring separate claims in one claim form. In particular, the words “a claimant” in 7.3 was singular and did not, in context, include the plural. The word “claim” in 19.1 meant “a cause of action” and not proceedings and it was inconvenient and unfair for the present respondents to group together their disparate claims.
(2) Both the appellant’s construction of 19.1 and 7.3 and the tests adumbrated in Abbott were incorrect in law. The regime allowing multiple claimants to bring their claims in one claim form under 19.1 had to be construed against the background of the previous regime established under the Rules of the Supreme Court (RSC) in general and Order 15, rule 4, in particular. Even though the judge applied the Abbott test, he was right to allow the respondents’ claims to proceed in one set of proceedings. Order 15, rule 4 allowed multiple claimants where, amongst other things, some common question of law or fact arose. That formal requirement was not carried over into the Civil Procedure Rules (CPR).
Claims could be conveniently disposed of in the same proceedings if common questions of law or fact arose in all the claims brought and if the claims were in respect of, or arose out of, the same transaction or series of transactions. Interpreting CPR 7.3 as excluding cases brought by multiple claimants within Order 15, rule 4 would not serve the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(3) CPR 19.1 and 7.3 had to be construed as meaning what they said: any number of claimants or defendants might be joined as parties to proceedings, and claimants might use a single claim form to start all claims which could be conveniently disposed of in the same proceedings. There was no exclusionary rule of real progress, real significance or otherwise. The court would determine what was convenient according to the facts of every case.
There was no test beyond the words of CPR 7.3, even if it was clear that cases within the old Order 15, rule 4 and cases where common issues would bind all the claimants would obviously be capable of being conveniently disposed of in the same proceedings. The case management tools of ordering lead claims and more than one trial, whether of preliminary issues or otherwise, were part of proceedings brought by multiple claimants under CPR 19.1. Lead claims were often chosen specifically to resolve specific issues that arose in claims made by some claimants and not others. The current CPR did not restrict the flexibility of 19.1 and 7.3 by imposing a requirement that one or more issues had to be common to or bind all or even most of the other parties.
(4) The present judgment was not to be taken as casting doubt on the actual determination in Abbott. The court was dealing only with the applicable law. Nor was the court discouraging the use of group litigation orders (GLOs) which were a useful and desirable procedure in many cases. This case had not raised any questions about that process, But it would be valuable for parties and the court to consider, in every case started by multiple claimants by a single claim form, whether it was appropriate to apply for a GLO.
Per curiam: It would be useful if the Civil Procedure Rules Committee were to consider whether it would have been better and clearer if a requirement for common issues of the kind found in RSC Order 15, rule 4 had been carried over into the CPR.
Roger Stewart KC and Scott Allen (instructed by Caytons Law LLP) appeared for the appellant; Simon Johnson and Jennifer Meech (instructed by Penningtons Manches Cooper LLP) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Morris and others v Williams & Co Solicitors (a firm)
