News Category 3
Thousands of claimants are able to issue claims on the same claim form: Abbot v Ministry of Defence [2023] EWHC 1475 (KB) - Anisa Kassamali, Temple Garden Chambers
30/06/23. The Divisional Court considered whether 3,450 claims issued on a single claim form were permitted to proceed.
Proceedings were commenced against the Ministry of Defence (the “MoD”) on behalf of 3,559 individuals. The claim form stated that the claim was brought on behalf of David Abbott, whose name and address were given on the first page of the claim form, and 3,558 others, whose names and addresses were set out in a schedule attached to and forming part of the claim form.
It was held at first instance by Master Davison that this was not permissible. It was directed that the appeal against that Order should be heard by a Divisional Court given the potential importance of the appeal for the meaning and effect of CPR rr. 7.3 and 19.1.
Decision
The Court of Appeal observed from the outset that the appeal turned principally on CPR r.7.3 and that there was little in dispute in relation to CPR r.19.1. CPR r.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.
Andrew Baker J explained at [71] that he agreed in substance with the analysis put forward by the Claimants’ counsel:
“71. The question here was not whether the full cohort of 3,000+ M-NIHL claims
encompassed by the omnibus claim form, as amended, could be tried at a single trial
hearing; it was whether that cohort of claims had sufficient commonality of significant
issues of fact that it would be useful or helpful, in the interests of justice, that any
determination of those issues in proceedings brought by any one of the claimants
against the MoD in respect of their M-NIHL injury claim would be binding also as
between the MoD and any other of the claimants in respect of their such claim. I thus
agree in substance with the analysis put forward by Mr Steinberg KC (see paragraph 12
above):
(i) CPR 19.1 provides that any number of claimants (or defendants) may be joined
as parties to a claim, i.e. to a set of proceedings commenced by a single claim
form under CPR Part 7 (or equivalent).
(ii) The CPR therefore provide no absolute limit on the number of claimants on a
single claim form. Weight of numbers, without more, is not relevant to whether
it is proper to use a single claim form.
(iii) The qualification to that is CPR 7.3 and its test of convenience. A single claim
form should only be used to start multiple claims (in the cause of action sense)
“which can be conveniently disposed of in the same proceedings”. As White
Book n.7.3.5 says, that is the sole test stated by CPR 7.3, and “In terms neither
the rule nor its related practice direction provides any further test.”
(iv) The governing principle, therefore, is not whether there is a large number of
claimants and/or causes of action. Rather, it is the convenience of disposing of
the issues arising between the parties in a single set of proceedings. The degree
of commonality between the causes of action, including as part of that the
significance for each individual claim of any common issues of fact or law, will
generally be the most important factor in determining whether it would, or
would not, be convenient to dispose of them all in a single set of proceedings.”
In so determining, the Divisional Court maintained the use of the omnibus claim form in this particular group litigation. It is an oft-used approach in such cases. As Dingemans LJ’s concurring judgment highlighted, the question of whether individual claims give rise to common issues of law and fact remains a fact-specific one.
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Courts cannot future-proof orders: Tabbitt v Clark [2023] EWCA Civ 744 - Anisa Kassamali, Temple Garden Chambers
29/06/23. The Court of Appeal considered an application for a declaration that would have “future-proofed” the Claimant’s costs liability where he was late to accept the defendant’s Part 36 offer.
The Claimant was involved in a road traffic accident with the Defendant, resulting in serious personal injury to the Claimant. The claim was one to which qualified one-way costs shifting (“QOCS”) applied.
The Defendant’s insurers made a Part 36 offer in early 2022 which was only accepted in late 2022. The parties agreed that the Claimant could recover his costs to the date that the offer expired. The Defendant was entitled to his costs after the date of the offer expiring (although the provision of QOCS meant that these costs could not be enforced).
The Claimant sought a declaration in the Order as follows: “Pursuant to rule 44.14 CPR the Defendant is not permitted to enforce (including by way of setoff) the costs Order in paragraph 3 of this Order in his favour against the Claimant.” The purpose of that declaration was to “future proof” the Claimant’s potential liability for costs given his late acceptance of the Part 36 offer.
The Court of Appeal stated it thus at [6] – [9]:
“6. It was common ground that as the rules stood at the date of the judge's judgment (a) acceptance of a Part 36 Offer did not result in an award of damages and (b) any costs order in favour of the defendant could not be enforced either against the amount of the Part 36 Offer or against the order for costs made in [the Defendant’s] favour.
7. Since the costs had not been assessed or agreed, there was at the date of the judge's judgment no immediate prospect of enforcement of any costs order against [the Claimant]. .
8. But at the time of the judge's judgment changes to the QOCS rules were under active consideration by the Civil Procedure Rules Committee ("the CPRC"). On 7 October 2022 the CPRC approved an amendment to the rules which, as drafted, would permit enforcement by a defendant of a costs order against agreements to pay damages and other costs order. The text of the draft was quoted in Harrison v University Hospitals of Derby & Burton NHS Foundation Trust [2022] EWCA Civ 1660, [2023] 4 WLR 8 at [51].
9. [The Claimant] wished to guard against the possibility of a future rule change with potential retrospective effect. [The Defendant] (or rather his insurers) were willing to take their chances. Since the claim had been disposed of by agreement, it would have been open to the parties to have achieved [the Claimant’s] objective by agreement, perhaps by [the Claimant] making it a condition of acceptance of the Part 36 offer that no costs order would be enforced against him; or by offering to accept a lower sum in exchange for that agreement. But that was not done.”
Decision
The Court of Appeal upheld the decision which rejected the inclusion of this wording in the Order. It fell within the wide discretion of the first instance judge (see, in particular, [21]). Lewison LJ’s key reasoning was set out [15]:
“15. If, by the time that the question of enforcement were to arise, the rules had changed so as to entitle [the Defendant] to enforce his costs order against [the Claimant], that would have been because the CPRC (backed by Parliamentary approval of amending rules under the negative resolution procedure) had decided that the interpretation of the rules in the case law did not properly reflect the objectives of QOCS. If the CPRC were to have come to the conclusion that the rules as drafted were defective, and that the defect should be retrospectively cured, why should [the Claimant] be entitled to take advantage of that defect?”
The Court of Appeal went onto observe that the CPRC had in fact amended the rules in such a way that the Claimant’s position was still protected. The costs of pursuing the application were therefore wasted and “the unfortunate reality of this appeal” was that “so much money [had] been spent on pursuing both the original application and this appeal, which now far [exceeded] the amount of costs initially in issue” (see [23]).
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Unsuccessful parties can be ordered to pay the costs involved in applications against a non-party: McCarthy v Jones & Anor [2023] EWCA Civ 589 - Anisa Kassamali, Temple Garden Chambers
07/06/23. The Court of Appeal considered an appeal against a decision that an unsuccessful party pay the costs involved in applications in relation to a non-party.
The Claimant was awarded a sum in excess of £1 million for breach of contract. During the course of the proceedings, he had applied to the Court for an order requiring a third party to preserve documents, and for an order allowing him to rely on documents disclosed in the proceedings for the purpose of pursuing that third party. It was envisaged that a third party application for disclosure would follow but, in the event, this was not necessary as the third party gave voluntary disclosure.
The Court ultimately ordered that the unsuccessful Defendant pay the costs of this application. That decision was appealed.
Decision
The Court of Appeal dismissed the appeal, holding that the decision regarding the Defendants’ payment of those costs fell within the wide ambit of his discretion. Lewison LJ handed down judgment (with which Baker and Elisabeth Laing LJJ agreed).
Lewison LJ held that the first instance judge would have been entitled to decide the issue either way. He summarised the merits of both parties arguments at [78]-[79]:
“78. [The Defendant’s counsel] argued with some force that [the Defendant] was not a party to the application itself; he did not cause costs to be incurred in making it; and the issue was in effect between [the Claimant] and [the third party]. It was unfair to require him to pay any part of the application against the [third party]. As regards that application he was in the same position as a third party against whom a third party costs order is sought. Such a person will not usually be liable unless he has in some way caused the costs to be incurred.
79. [The Claimant’s counsel], who argued this appeal on behalf of [the Claimant] pointed out that the trigger for the application was the discovery that [the third party] had been passing documents to [the Defendant]; that [the Defendant’s] disclosure of those documents was the trigger for the application; that the application was intended as a prelude to the making of an application for third party disclosure (which in the event turned out to be unnecessary) and that if a successful third party disclosure application had been made the costs of such an application would have been recoverable by the successful party in the underlying litigation. In addition, the judge reduced the recoverable costs by 10 per cent overall which in the context of this particular application could be attributed to such of the costs as were occasioned by the application under CPR Part 31.22.”
Having considered both sides of the argument, Lewison LJ held that the decision was one which fell within the judge’s ‘wide ambit’ of discretion. He concluded as follows at [80]: “There is, in my judgment, force in both sides of the argument. The judge could legitimately have taken either view. But the question is not whether we would have made the order that the judge did. It is whether the order was within the wide ambit of his discretion. Another judge might well have made a different order; but that is beside the point. I have not been persuaded that the order that the judge made fell outside the scope of his discretion.”
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The Enlarged Partial Agreement on The Register of Damage Caused by The Aggression of The Russian Federation Against Ukraine - Sebastian Bates, Temple Garden Chambers
28/06/23. At a summit in May, the Council of Europe announced the establishment of a Register of Damage Caused by the Aggression of the Russian Federation Against Ukraine.
According to Article 1(1) of the Statute of the Register, the Register ‘shall serve as a record, in documentary form, of evidence and claims information on damage, loss or injury caused, on or after 24 February 2022, in the territory of Ukraine within its internationally recognised borders, extending to its territorial waters, to all natural and legal persons concerned, as well as the State of Ukraine, including its regional and local authorities, state-owned or controlled entities, by the Russian Federation’s internationally wrongful acts in or against Ukraine’.
The Register ‘shall have its seat in The Hague’ and a ‘satellite office in Ukraine’, according to Article 3 of the Statute.
Under Article 2(1) of the Statute, ‘[t]he Register shall receive and process information on claims of damage and evidence; categorise, classify and organise such claims, assess and determine the eligibility of claims for inclusion in the Register and record the eligible claims for the purposes of their future examination and adjudication’. Importantly,‘[t]he Register shall not have any adjudication functions with respect to such claims, including determination of responsibility and allocation of any payments or compensation.’
By Article 2(2) of the Statute, ‘[e]ligibility criteria for recording of claims in the Register for the purposes of their future examination and adjudication shall be determined in the rules and regulations of the Register’. Practitioners should be aware that the ‘natural and legal persons concerned’ will be able to submit to the Register ‘[c]laims, evidence and related information’: see Article 2(3).
Article 11 of the Statute provides that ‘any information on claims and damage received by the Register, including any evidence, shall be treated as confidential’, subject to ‘[r]ules on access to documents and protection of data related to claims submitted to the Register shall be proposed by the Board [of the Register] and approved by the Conference [of Participants of the Register], including on the sharing of information under the provisions of this Statute’.
According to Article 2(5) of the Statute, ‘[t]he work of the Register, including its digital platform with all data about claims and evidence recorded therein, is intended to constitute the first component of a future international compensation mechanism to be established by a separate international instrument in co-operation with Ukraine’.
Comment
At its first meeting, the Conference of Participants elected the Permanent Representative of the United Kingdom to the Council of Europe as Chair.
There are now, of course, a number of Ukrainians who have come to the United Kingdom in response to the aggression of the Russian Federation.
The Bar Council and the Law Society have called for support for Ukraine and Ukrainians.
Practitioners may therefore wish to assist people in making submissions to the Register in due course.
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Pre-Action Disclosure as to Impecuniosity: Holt v Allianz Insurance PLC [2023] EWHC 790 (KB) - Sebastian Bates, Temple Garden Chambers
31/05/23. As set out at [1]–[11], there has been a divergence of practice in the County Court on whether prospective defendants in credit hire cases who apply for pre-action disclosure of documentation of prospective claimants’ impecuniosity should succeed. This appeal, from a decision by HHJ Harrison to grant such an application by Allianz Insurance PLC, was heard by Andrew Baker J in order to make it possible for guidance to be given to address this divergence.
Summary
After reviewing the law at [12]–[23], Andrew Baker J explained that ‘the pre-action disclosure sought by Allianz in this case was disclosure HHJ Harrison had power to order if (and only if): (i) Allianz might well be party to any proceedings later issued by the appellant; (ii) impecuniosity might well be an issue in any such proceedings; and (iii) requiring the disclosure to be given before proceedings had been commenced offered a real prospect in principle of disposing fairly of the prospective proceedings, assisting the dispute to be resolved without proceedings, or saving costs’. In addition, he observed at [24]–[25] that it would not be difficult for a potential defendant to persuade a court to permit it to apply for such disclosure if it had a strong case on these points.
Andrew Baker J discussed impecuniosity’s significance in credit hire litigation at [26]–[39], ultimately agreeing with HHJ Harrison that a prospective claimant ‘cannot, by reason that litigation has not yet been commenced, properly refuse to have a position on whether the basis of the claim they have chosen to assert and threaten to litigate is or includes a claim of impecuniosity’.
Andrew Baker J then recited the correspondence that had culminated in the application for pre-action disclosure (at [40]–[53]) and summarised HHJ Harrison’s judgment (at [54]–[59]). He proceeded to conclude that, on the evidence that had been before HHJ Harrison, and notwithstanding ‘the general frequency with which the County Court sees insurers sued directly’, the first requirement set out above had not been satisfied as it had been the applicant’s insured, rather than the applicant itself, that was likely to be party to any proceedings later issued: see [60]–[76].
However, Andrew Baker J accepted (at [77]–[90]) that the second and third requirements set out above had been satisfied.
Conclusion and Comment
On the basis of Andrew Baker J’s reasoning, ‘[p]re-action disclosure should not have been ordered in this case because it was sought only by Allianz’ and so the appeal had to be allowed: see [95]–[96]. Yet, as he acknowledged, this is ‘a technicality’. His judgment implies that, if an insurer is likely to be the defendant in credit hire proceedings, or can ‘caus[e] [an] application [for pre-action disclosure] to be made in the name of their insured’ if the insured is likely to be the defendant, then such an application is likely to succeed in respect of impecuniosity documentation.
Image ©iStockphoto.com/MosayMay
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