The English courts continue to develop innovative case management procedures for the growing use of group actions. Two recent High Court decisions demonstrate the courts' flexibility in dealing with complex group claims, as well as raising questions about whether certain elements of the Civil Procedure Rules need updating.
Omnibus claim forms
Adams v Ministry of Defence [2024] EWHC 1966 (KB) concerned CPR 7.3, which provides that a single claim form can be used to issue multiple claims if the claims "can be conveniently disposed of in the same proceedings".
Earlier this year the Court of Appeal clarified the test in Morris v Williams & Co Solicitors [2024] EWCA Civ 376, holding that "convenience" is an ordinary word and the court will determine what is convenient according to the facts of each case, without the need for considering specific additional tests or thresholds. We analysed Morris here.
In Adams, the High Court provided further insight into the factors that may be relevant to the test of convenience. A number of ex-military personnel had brought personal injury claims against the Ministry of Defence. Multiple "omnibus" claim forms were issued, each containing multiple individual claims. Certain generic issues, including relating to liability, were subsequently agreed, but individual issues of diagnosis, causation and quantum remained unresolved. The question arose as to whether the claims should continue via an omnibus claim form, or whether some other (and if so what) procedural vehicle would be appropriate.
The High Court observed that:
- Convenience can include the convenience and capacities of the court and the court system, not just convenience to the parties.
- Claims that were originally properly joined to one claim form may be disaggregated if that has become inconvenient. Where the individual claims included on the omnibus claim form have reached the stage of individual assessment, the starting point should be that it is no longer convenient that they are all disposed of in the same set of proceedings.
- Following on from that, where at the outset it appears that claims will require individual determination at some stage, a court may be hesitant to approve the use of an omnibus claim form because of the potential for practical difficulties in the future – "the convenience of a single claim form may be short lived".
In this case the High Court came to a pragmatic conclusion: the existing omnibus claim form should remain as it was, so as not to inflict further "upheaval", but future claims would have to be issued on a new claim form with up to 60 claimants on each. Future omnibus claims could also be dealt with in tranches, such that a single trial could deal with (as a provisional maximum) three omnibus claim forms.
Group Litigation Orders
Hammon v University College London [2024] EWHC 1744 (KB) concerned the use of a Group Litigation Order (GLO) under CPR 19.21, which provides that a GLO can be ordered to provide for the case management of multiple claims that "give rise to common or related issues of fact or law".
A group of over 5,000 current and former university students claimed that the university was in breach of contract by failing to provide in-person, campus-based tuition and/or access to facilities during the COVID-19 pandemic and during periods of industrial action. The students applied for a GLO.
However, despite agreeing that the claims met the threshold requirements for a GLO, in that they gave rise to common issues of fact or law, the High Court declined to order a GLO.
The court has "very wide indeed" conventional case management powers under CPR 3.1. Those powers include consolidating proceedings, trying two or more claims on the same occasion, directing a separate trial of any issue and "taking any other step or making any other order for the purpose of managing the case and furthering the overriding objective". The court noted that "with cooperation and creativity the court’s standard case management powers can be used to replicate almost any feature of a GLO".
On the facts, the court found that a GLO would not help to promote fairness, save costs or allow the claims to be dealt with in a timely and efficient manner. The imperative was progressing the claims, and a GLO would only delay progress.
Comment
Both Adams and Hammon illustrate the English court's continued flexibility in case managing group actions. While the question of how many claimants can conveniently be included on one claim form will depend on the facts of each case, the pragmatic approach to dealing with omnibus claim forms in Adams should give comfort that the court is using its case management powers effectively to manage the specific needs of parties in each claim.
Further, the recognition in Adams that, even where there are factual similarities, a body of common expert evidence and template directions, the court is not bound to prescribe one procedural route over another is a warning to parties to consider carefully proposals for the most appropriate case management of group actions.
It is also interesting to note comments by the court in both cases about the need to update elements of the Civil Procedure Rules. In Adams the court commented that, following suggestions by the Court of Appeal in Morris, omnibus claim forms and CPR 7.3 are being considered by the Civil Procedure Rule Committee, so we may not have heard the last about the test of convenience.
Meanwhile in Hammon the court observed that when the procedure for GLOs was first proposed in the late 1990s, the world was a very different place. Developments in technology and computing since then have "revolutionised the way in which lawyers and judges work and manage cases". However, the implication that GLOs may no longer be appropriate case management mechanisms contrasts with the Court of Appeal's commendation of GLOs in Morris as "very useful and desirable" in many cases – although notably in that case, a single claim form was used. The use of GLOs may also therefore be a question for the future.
However omnibus claim forms and GLOs are used in future claims, the courts are clearly giving much thought to appropriate procedural mechanisms for group actions, and claimants and defendants should do the same from the outset of a claim.