Multi-claimant/defendant cases and Group Litigation Orders: protest - PowerPoint PPT Presentation

Multi-claimant/defendant cases and Group Litigation Orders: protest cases or large scale incidents Stephen Simblet QC, Garden Court Chambers Tim Baldwin, Garden Court Chambers Stephanie Harrison QC, Garden Court Chambers 14 May 2020 @gardencourtlaw

Some points about multiple claimants and CPR 19.6 Stephen Simblet QC, Garden Court Chambers 14 May 2020 @gardencourtlaw

CPR 19.6 concerns representative claims The parties or the court can get one person to represent other parties • The key condition is that that person has the “same interest”: that is the heading of this part of • the rule The effect of there being such an order is that the judgment is binding on the persons • represented in the claim However, that does not mean that the judgment can be enforced against all persons • represented in the claim: important re protestor cases @gardencourtlaw

“The same interest” Duke of Bedford v Ellis [1901] AC 1 • Concerned a dispute about the management of Covent Garden market, where 5 claimants sued “ on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs” Duke of Bedford had the claim struck out, but claimants successfully appealed and claim • proceeded. Case still good law for what is meant by “the same interest” “the same interest” requires ALL of the below • (a) a common interest (b) a common grievance (c) a remedy beneficial to all @gardencourtlaw

When might a representation order be made? Has to be all the claimants or defendants, not a sub- group, though see Oxford University v • Webb [2006] EWHC 2490. Decision based on facts and pleadings, at the time the court is being asked to make the order. • Authority for that is Sinclair v Commissioners for HMRC [2016] EWHC 2820. However, it is possible for membership of the class to change at different stages: see Emerald Supplies v British Airways [2010] EWCA Civ 1284, [2011] Ch 345. Whether to make such an order can be contested by the opponent in the case, as well as those • who might wish not to be represented by that person Cannot represent those who might, for instance, have a different defence, as there is then no • common interest. @gardencourtlaw

Order Might be made • General exposition of the principles in Millharbour Management v Weston Homes [2011] EWHC 661, [2011] 3 All ER 1027 (see especially paragraph 22) • Still a discretion: although it has substantive consequences, this is a case management tool • Court should not look at the likely result of substantive proceedings when deciding whether it is appropriate to make a 19.6 order @gardencourtlaw

What if you want to be separately involved This is a case management tool, designed to further the over-riding objective • Party who wishes and is ready and willing to conduct his/her own case can do so, and is not • shut out: Irish Shipping v Commercial Union Assurance [1991] 2 QB 206 In PNPF Trust Company v Taylor [2009] EWHC 1693, Proudman J held that a company that • would acquire massive liabilities if a pension scheme was amended was entitled to be joined as a defendant even though there were other represented defendants with the same interest Orders under CPR 19.6 are therefore distinct from Group Litigation Orders • @gardencourtlaw

Difference between judgment and enforcement Representative proceedings particularly against defendants, may mean that a person is bound without knowing about the case or being heard. See Huntingdon Life Sciences v Stop Huntingdon Animal Cruelty [2007] EWHC 522 (QB) and Oxford University v Webb [2006] EWHC 2490 In RWE Npower v Caroll and others [2007] EWHC 947. The claimants sought an order under CPR 19.6 (4) permitting enforcement against people that had not been defendants. Teare J refused such prospective enforcement against people who had never been brought before the court as defendants. @gardencourtlaw

GROUP LITIGATION ORDERS: THE BASICS Tim Baldwin, Garden Court Chambers 14 May 2020 @gardencourtlaw

Where do GLOs fit in Final Access to Justice Report (July 1996) Chapter 17 • Recommended that there were definite limits to the weight of representative actions (now r 19.6) could hear; • That consolidation (now r 19.6) deals with actions which have already been commenced, and it is better that multiparty be dealt with before then; and • That joinder is not satisfactory where the interests of the Claimants differ. • Further at the time of the report it was said that existing procedures were difficult to use and had proven disproportionately costly. • Present rules in management of the claims r 19.10 – 19.15 CPR and PD 19B but subject to CPR rules under CPR Part 3 (case management) (described pages 686 – 696, 700 – 706 White Book 2020). On costs it is r 46.6 but it limited in scope and other issues arise. @gardencourtlaw

Objectives of the recommendation • Recommended new procedures dedicated to multiparty claims with the following objectives: 1. Provide access to justice where a large number of people affected by another’s conduct, but individual loss is so small (e.g. a small claim) that it makes individual action economically unviable; 2. Provide expeditious, effective and proportionate methods of resolving cases, where individual damages are large enough to justify individual action but here the number of claimants and the nature of the issues involved mean that the cases cannot be managed satisfactorily in accordance with normal procedure; 3. Achieve a balance between the normal rights of claimants and defendants. To pursue and defend cases individually and the interests of a group of parties to litigate the action as a whole and in an effective manner. • House of Lords in Connelly v RTZ Corp Plc (no 2) [1998] AC 854; and Lubbe v Cape PLC [2000] 1 WLR 1545 enable group actions involving UK based multi nationals to be litigated in England and Wales @gardencourtlaw

Civil Procedure Rules: GLO in outline The CPR attempts to set up the structure r 19.10 Definition : where claims which give rise to common or related issues of fact or law • emerge; • r 19.11 Group litigation Order; when r 19.10 satisfied the court has the power to make a GLO enabling the court to manage the claims covered by the order in a co-ordinated way • The GLO will contain directions as to the establishment of a “group register” on which the claims to be managed under the GLO will be entered and will specify the court (“the management court”) which will manage the claims on the register (r 19.11.(2)) • Judgments, order and directions of the court will be binding on all claims within the GLO (r 19.12(1)). • The Court case management powers enable it to deal with generic issues including selection of particular claims as test claims (rr 19.13(b) and 19.15). • Judges are assigned as under PD 19BPD.16. • Brooke Allen Ltd v Revenue and Customs Commissioners [2007] 1 WLR 1396 need for detail in claim forms and amendments. • Alyson Austin v Miller Argent Ltd [2011] EWCA Civ 328 Making a GLO is a case management decision which will not be easily interfered with on Appeal. @gardencourtlaw

Key issues in the procedure • Definition “common and related issues” is significant, the interests of the individuals do not have to be the “same” as in Representative Proceedings – often misunderstood • Rule refers to “issues” within the litigation are common whether of fact or law and the purpose of the GLO is to ensure that any issues are decided so that the decision binds all claims on the register. • Hence, (1) where many claimants have similar claims, even against the same defendant, but each of them in law has a separate claim (even if it may arise out of the same circumstances) in which individual liability and quantum need to be proved; and (2) there is no common issue which if decided would be binding in each case, it is unlikely a GLO would be appropriate and consideration should be given to consolidation in one action with multiple claimants. r 19.11 refers to claims giving rise to GLO issues reinforces the point that the form of order is • intended for the determination of an issue or issues common to all claims or at least a group of claims in the group. If multiple claimants where each claimants is separate as a matter of liability as well as quantum is not a common issue and not GLO issue. • Example Schmitt v Depuy International Ltd [2016] EWHC 638 (QB) @gardencourtlaw