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

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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

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Some points about multiple claimants and CPR 19.6

Stephen Simblet QC, Garden Court Chambers 14 May 2020

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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

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“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

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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.

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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

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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

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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

• rder 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.

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

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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.

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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

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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.

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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

• f 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)

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GLO r 19.11

• The rule does not specify the minimum number of claims for a GLO or who might may apply

for the order. A claimant or defendant may apply and indeed they may agree in a joint application or the court may make it of its own initiative.

• Para 3.3.- 3.7 of the Practice Direction specify who the application is to be made to and who is

to approve it before it is made. Particular forms are specified.

• The GLO register will usually be maintained by a solicitor acting for one of the parties.
• PD 19B paragraph 6.1A makes it clear that claimants must issue a claim form and pay the

issue fee before their claim can be entered on a group register. As r 19.1 provides any number

• f claimants may be joined on one claim form and registered. The issue here to ensure no

claimant can be admitted to the register unless the claimant is added in or made their own claim.

• Requirement to define GLO issues might help the parties and the court to make decisions.
• Publication/ advertising of the GLO and cut off dates.
• McGlone v Chief Constable of South Yorkshire Police [2016] EWHC 3359. Issue of deferment
• f making a GLO

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Effect of GLO and Case Management

• r 19.12 identifies the effect of the GLO and the restrictions imposed including disclosure
• r 19.13 Case management and directions
• Practice Direction 19B clarifies case management and usually there is a designated judge
• Query whether individual Particulars of Claim are required see para 14.4 of PD19B but

also see Evans v Secretary of State for Health [2017] EWHC 3572 (QB)

• Appointment of a lead solicitor
• Cut off dates
• Listing of GLO hearings
• Costs
• GLO issues
• Cost sharing provisions
• Costs budgeting
• r 19.14 applications for removal from the register and future management
• r 19.15 test claims

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Forms and miscellaneous cost issues

Atkin's Court Forms

• Vol 13 (2) Costs Management, Case Management and Applications Form 120 Application for

group litigation order

• Vol 13 (2) Costs Management, Case Management and Applications Form 121 Group litigation
• rder: Queen's Bench Division
• Vol 13 (2) Costs Management, Case Management and Applications Form 122 Group litigation
• rder: Chancery Division
• Form PF19 with adaptations https://www.gov.uk/government/publications/form-pf19-

group-litigation-order-rule-1911

• Costs dealt with generally under r 46.6
• But this rule only deals partly with the difficult issue of liability of individuals in a group

action group who do not succeed with their individual claims, particularly where the group was at least partly successful on its generic claim (discussion on page 687 of White Book volume 1)

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GROUP LITIGATION TYPE ORDERS: TWO CASE STUDIES Stephanie Harrison QC, Garden Court Chambers 14 May 2020

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GROUP LITIGATION TYPE ORDERS: TWO CASE STUDIES

Group litigation orders are not strictly available in judicial review but they have been used as a model for some important test case litigation conducted in the Administrative Court. Two Examples Case Study 1 : Challenging decisions taken to dispute age and to detain : A and Others Historic claims, the policy having been changed in November 2005 as a result of a judicial review but Defendant disputed previous policy and decisions made under it were lawful and no entitlement to damages for false imprisonment. Defendant conceded that the age dispute policy had been unlawful and a Consent Order was made by Munby J.

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Case Study 2

Challenging the Detained Fast Track (DFT): R (JM and others) v SSHD [2015] EWHC 2331 (Admin) and (PU and others v SSHD CO/678/2015 et al) Systemic challenge to the terms and operation of the DFT and the failure to identify and safeguard vulnerable adults e.g. victims of torture, trafficking, mental illness and with protected characteristics relating to sex, gender, sexuality, and disability. High Court (Blake J) declared in approving a consent order that “the DFT as operated at 2 July 2015 created an unacceptable risk

• f unfairness to vulnerable or potentially vulnerable individuals”.

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Common Litigation Issues

1. Generic challenges to terms and operation of a policy effecting large numbers of individuals. 2. Multiple claims lodged in both QBD and Administrative Court. 3. Defendant strategically conceding cases preventing authoritative ruling. 4. Defendant arguing claims academic once released or interim relief granted. 5. Defendant even after permission granted disputing each individual case, requiring interim

• rders and permission to be granted in each case.

6. Nature of the potential client group meant that many were un-represented or poorly represented and risked being detained or removed and no challenge being brought.

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Advantages

1. Facilitated test case litigation and strategic challenge being pursued. 2. Control over the selection of the test or lead cases - fighting case on strongest facts. 3. Identification and determination of all generic issues to be decided. 4. In principle a binding ruling would be made on those issues to the benefit of all stayed cases avoiding problems highlighted in Zeqiri [2002] UKHL 3, [2002] Imm AR 296 and disputes as to the consequences of rulings in test cases. 5. Defendant under pressure and made concessions on interim relief. Continued on next slide…

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Advantages

6. Claims expedited. 7. Defendant ultimately conceded substantive relief both generic and in the individual lead cases. 8. Stayed cases and cases on the register in Case Study 1 (40 +) all conceded. 9. In case Study 1 lead to a collective case management and settlement agreement of the damages claims with a common approach to assessment of damages (settlement in excess of £1 million).

• 10. Claims for very short periods of detention and relatively low value could be pursued and were

compensated.

• 11. Cost risks were shared, were saved and the Defendant paid the costs of the litigation as a

whole.

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Disadvantages

1. Case Study 2 benefited from all of the advantages 1- 7 and resulted in the Defendant suspending the

• peration of the DFT conceding it was operating unlawfully as part of the settlement. It has not been

reinstated 5 years later. 2. Defendant, however, fought a rear-guard action and sought to dispute the generic order applied on the individual facts even in cases on the register and other similar cases not on the register : see R(Zafar) v SSHD [2016] EWHC 1217(Admin) at [61]: “In the two groups of test cases, JM and PU, the SSHD conceded liability because each of the individuals concerned had said enough in their screening interview to have triggered a requirement to eliminate them from the fast-track”. 3. The Defendant resisted collective settlement of the claims and they were negotiated separately although all claims ultimately were conceded, damages and costs paid. 4. The Defendant sought to delay payment of the inter partes costs order on the lead cases arguing that no payment could be made until all the claims on the register had been resolved. This argument was eventually rejected by the costs judge but it caused substantial delay.

Thank you

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