In Adams and others v Ministry of Defence,[1] the High Court has recently followed the Court of Appeal judgment in Morris and others v Williams & Co Solicitors (a firm)[2], in confirming that multiple claimants can bring proceedings via a single Claim Form, provided that the test of convenience is satisfied.
The English Courts have shown intent in recent years on embracing group and class action litigation, not least in seeking to maintain a position as a pre-eminent litigation forum. Under the Civil Procedure Rules (CPR), there are a number of procedural routes that potential groups/classes can use to bring actions, subject to the specific circumstances of the cases at hand. These include, in particular:
- Use of a single Claim Form for multiple claimants in accordance with CPR 19.1 and CPR 7.3 (also referred to as omnibus claims).
- Multiple claims (with sufficient degrees of commonality) that are issued separately (or through an omnibus Claim Form), which are case managed together but proceed through lead or sample claimants.
- Multiple separate claims that are case managed under a group litigation order in accordance with CPR 19.21-19.26.
- A representative action pursuant to CPR 19.8 or 19.9, which is commenced by one party acting on behalf of a class that shares the same interest (this can be done on an ‘opt-in’ or ‘opt-out’ basis). This procedure was considered at length in the seminal Supreme Court decision in Lloyd v Google.[3]
Omnibus claims: background to the law
CPR 19.1 provides that “Any number of claimants or defendants may be joined as parties to a claim”. However, when determining whether a single Claim Form is appropriate for multiple claimants, consideration must be given to CPR 7.3, which provides as follows: “[a] claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings” (emphasis added). Where appropriate, an omnibus claim has certain benefits, including the need to pay only one issue fee for all claimants, and, in theory at least, it should lead to a reduced administrative burden for both the parties and the Court.
The 2022 case of Abbot and others v Ministry of Defence[4] concerned multiple claimants seeking damages for noise-induced hearing loss when serving in the UK armed forces. The proceedings were issued by all claimants on one Claim Form. At first instance, the High Court determined that “3,500 claims joined in these proceedings plainly cannot be conveniently disposed of in the same proceedings. There obviously could not be a trial of 3,500 claims at one sitting”. Other than there being a common defendant and common themes, the Court considered that each unitary claim was too factually disparate from the next.
Overturning that decision, the Court of Appeal[5] held that a requirement for all claims in an omnibus Claim Form to be capable of determination in a single sitting set the “commonality bar too high”. Instead, where common issues could be determined together, this would be “real progress” towards a final determination, which may satisfy the convenience test. In addition, the Court of Appeal held that there ought to be “real significance” in respect of common issues and that determination in respect of such issues should be capable of binding all parties.
The Court of Appeal’s recent decision in Morris concerned 134 negligence claims against a firm of solicitors in respect of certain investments. The Court maintained that the test as to whether an omnibus Claim Form was permissible was one of convenience but rejected the idea that the three tests set out in Abbott – “real progress”, “real significance” and capacity to bind all parties (the Three Abbott Tests) – were mandatory aspects in assessing convenience. The Three Abbott Tests remain relevant considerations but should not exclude potential claimants from an omnibus Claim Form where that procedure would otherwise be sufficiently convenient: “the matters that are most relevant to the ultimate question of convenience will vary across the wide spectrum of cases that have been and will in the future be brought under 19.1”.
Adams v Ministry of Defence
Background
Adams concerned over 500 ex-military personnel who had sustained non-freezing cold injuries in the course of active duty. In 2021, there was a determination (by agreement) of common issues in the lead cases, which bound all parties. That determination was not dispositive of each claim because matters of diagnosis, causation and quantum were disputed and remained to be resolved on an individual basis (the Remaining Issues).
Administrative difficulties had arisen with so many claimants being included on the same Claim Form. These included difficulties resulting from technical limitations on the Court’s case management filing system (CE-File), including the inability to create sub-files for individual claimants. This particular issue had caused understandable confusion at the Court end, where it was not clear which particular claimant(s) a given filing related to, leading to rejected filings and, in turn, a filing backlog. It was also difficult for judges looking at the file to find particular documents quickly.
Both parties opposed the “disaggregation” (i.e., removal) of the various claims from the omnibus Claim Form to then proceed as individual claims. The parties argued that to disaggregate the claims would lead to increased costs (including an issue fee being incurred by each individual claimant) as well as a heightened administrative burden for both the parties and the Court.
Determination
In favour of disaggregation, the generic issues in Adams had been determined by way of agreement, with the result that the Three Abbott Tests relevant to (but not determinative of) the matter of convenience, could no longer be satisfied because each of the claims in Adams were effectively proceeding as individual claims on the Remaining Issues. There would therefore be no difference if the claims were to be disaggregated and case managed by one judge.
Against those factors, the Court accepted that to insist on each claimant filing a new Claim Form would give rise to duplication of work, increased cost as well as an administrative burden on the Court. Accordingly, the Court held that the status quo should be maintained with the original omnibus Claim Form continuing. However, owing to the Claim Form being “overloaded”, any additional claims would have to be made through a new Claim Form, with a provisional maximum of 60 claimants.
Comment
Practitioners would be well advised in any multi-party context to think carefully about the appropriate procedure that should be used to bring their action, such that costly procedural wrangles further down the line can be avoided. However, Adams highlights the Court’s pragmatic approach to omnibus Claim Forms, weighing up the appropriateness of that procedure against the potential upheaval in ordering the reissuing of individual claims.
By way of a postscript comment, Mr Justice Garnham and Master Davison suggested that (whilst not a pre-requisite aspect of convenience, as per Morris) where it appears that a collection of claims might not be capable of disposal by a trial of lead cases, this ought to weigh against a decision to issue an omnibus Claim Form in the first place.
[2] [2024] EWCA Civ 376
