In a significant recent judgment, the Court of Appeal has simplified the test for when multiple claimants can issue a claim using a single claim form. This issue has been before the courts on numerous occasions in the last year, including Abbott v Ministry of Defence [2023] EWHC 1475 (KB), which we analysed here. In a decision that will be received enthusiastically by large groups of claimants with common issues, in Morris v Williams & Co Solicitors [2024] EWCA Civ 376, the Court of Appeal held that Abbott was wrong in law, but that the claimants should nevertheless be allowed to bring their claim on a single claim form.
Background
134 claimants sought damages from their former solicitors for negligence. The alleged negligence related to advice on investments by the claimants in property development projects. All 134 claimants issued proceedings on a single claim form. The defendant sought to strike out the claim form on the grounds that it was an abuse of process or an obstruction to the just disposal of the proceedings, or that the claim form did not comply with the CPR. The application was dismissed at first instance and the defendant appealed.
The decision
Construction of CPR 19.1 and 7.3
CPR 19.1 provides that “[a]ny number of claimants or defendants may be joined as parties to a claim”, and CPR 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”.
The Court of Appeal held that CPR 19.1 should be construed to mean that any number of claimants can be joined as parties to a "set of proceedings commenced by a claim form" (i.e. that "claim" in CPR 19.1 means "proceedings" rather than "cause of action"). It also held that CPR 7.3 does not require a single final trial hearing to be possible or practical. It also confirmed that the words "a claimant" in 7.3 can include the plural.
Test of convenience
As to when it would be "convenient" to dispose of all claims in the same proceedings, the Court of Appeal stated that "convenience" is an ordinary word which does not need defining. But in what circumstances can multiple claims be conveniently disposed of in the same proceedings?
The Court of Appeal found guidance from the predecessor to CPR 7.3, which provided that "two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where:
- If separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and
- All rights to relief claimed in the action (whether they are joint several or alternative) are in respect of or arise out of the same transaction or series of transactions".
The Court of Appeal held that if a claim satisfies these elements of the old rules, it is obvious that they can be conveniently disposed of in the same proceedings under the new rules.
The Court went on to reject the three tests for convenience promulgated in Abbott, emphasising that CPR 19.1 and 7.3 must be construed as meaning what they 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" test requiring something in addition to the wording of the rules, such as (as Abbott decided) whether there are common issues of sufficient significance that determination together would constitute real progress towards final determination of all the claims, or enough commonality in the claims that decisions made in one claim will be of real significance to the rest, or otherwise. The court will determine what is convenient according to the facts of every case.
The Court of Appeal accepted that where common issues will bind all or most claimants, that will probably mean they can be conveniently disposed of in the same proceedings. But that is not a requirement of the CPR. The Court of Appeal explicitly rejected the defendant's argument that Abbott should have decided that the trial of common issues in proceedings brought by multiple claimants would “produce a binding determination” on all parties, as that cannot be spelled out of 19.1 and 7.3.
The Court of Appeal accordingly dismissed the defendant's appeal. The trial judge had found that common questions of law or fact arose in all the claimants’ claims, and the claims all arose out of the same series of transactions. There was therefore no question that they could be conveniently disposed of in the same proceedings.
Conclusion
Although the Court of Appeal disapproved of the test(s) of convenience outlined in Abbott, Morris is helpful for claimants in group actions. While the Court of Appeal suggested that the Civil Procedure Rule Committee may wish to review the current provisions with a view to making them clearer, Morris makes the test for using a single claim form even simpler than had been the case following Abbot, because none of the "exclusionary" tests in Abbott apply. If the facts of the case mean that it would be convenient to use a single claim form, that will suffice (and common questions of law or fact will lend weight to the claimants' argument that it would be convenient).
The Court did, however, recognise that defendants to group actions initiated by a single claim form may face potential unfairness in the absence of active case management. There was no suggestion this should prevent the use of a single claim form. Instead, the Court emphasised that each claimant's case should be properly explained so the defendant knows the case it has to meet, and so as to facilitate early resolution. The Court also noted that questions of disclosure and case management can be dealt with by applications throughout the litigation, and proper engagement with the court by the parties and their lawyers.
Claimants should also take note of the Court of Appeal's encouragement for the use of Group Litigation Orders (GLOs), and consider whether, in a case involving multiple parties, a GLO is the more appropriate procedural mechanism to apply for. That may be the case where there are multiple solicitors acting for different claimants, for instance, or where there is value in having a group register of claimants. However, a single claim form may, in many circumstances, be the most efficient way to bring a claim on behalf of a group of claimants.