The Divisional Court has held that claimants can be validly added to a Claim Form by amendment without permission from the court at any time prior to service in accordance with CPR 17.1(1). The judgment, which forms part of the emissions group action against Mercedes/Daimler, has significant implications for large group litigation, as Adam Jacobs explains here.
The decision by Lord Justice Dingemans and Mr Justice Picken in Rawet and Ors v Daimler AG and Ors [2022] EWHC 235 notably departs from the approach taken by Mr Justice Mann in Various Claimants v G4S Plc [2021] EWHC 524 (Ch) (“G4S”). G4S is a shareholder action brought under section 90A of the Financial Services and Markets Act 2000 in which most of the individual investors’ purported claims were struck out after their solicitors sought to add them to the Claim Form following issue by relying on the same provision as in the Daimler case.
The facts
The Divisional Court’s judgment was in respect of an application for declaratory relief in the anticipated emissions group action against Mercedes/Daimler. The court was asked to make a declaration that two individuals (the “Additional Claimants”) had been properly added as claimants to the proceedings by amendment to the Claim Form pursuant to Civil Procedure Rule (“CPR”) 17.1(1). This was in circumstances where:
- the written consent of the other parties or (more relevantly) permission of the court had not been obtained (the “First Issue”); and
- the Additional Claimants had not provided separate written consent from the statement of truth signed by their solicitors under CPR 19.4(4) (the “Second Issue”).
The relevant provisions
CPR 17.1(1) provides: “A party may amend his statement of case at any time before it has been served on any other party.” Where this rule does not apply, permission to amend is required from the court.
CPR 19.4 sets out the procedure for adding or substituting a party where permission is required. In particular, CPR 19.4(4) provides that “nobody may be added or substituted as a claimant unless (a) he has given his consent in writing, and (b) that consent has been filed with the court”.
The G4S decision
Before the decision in G4S, it had been widespread practice to join additional claimants to group proceedings without applying for permission between issue and service of the Claim Form. That approach was cast into doubt by Mr Justice Mann, who found:
- with regard to the First Issue, an amendment to plead a new claimant’s separate case was not an amendment by “a party” of “his statement of case” within the meaning of CPR 17.1(1) and thus would require the permission of the court; and
- with regard to the Second Issue, the addition of certain claimants between issue and service of the Claim Form was ineffective because their written consent had not been filed pursuant to CPR 19.4(4). As to this, a statement of truth signed on their behalf by the solicitors on an amended Claim Form was not sufficient for these purposes.
Divisional Court judgment
i. The First Issue
In relation to the First Issue, Mr Justice Picken noted a clear distinction between CPR 17.1(1) and CPR 19.4, which applied respectively to the pre and post-service stages. The two rules “dovetailed” together and provided a complete regime for adding parties, albeit with modifications to reflect the fact that, pre-service, a defendant had yet to be called upon to take any action in the proceedings. Given this context, the judge considered that the ability of the claimants to amend the Claim Form at the pre-service stage should be less circumscribed than at the post-service stage.
The court considered that reading the provisions of CPR 17.1 and CPR 19.4 together, Mr Justice Mann’s interpretation of CPR 17.1(1) was overly restrictive. There was no reason why that provision should not apply to amendments made pre-service to remove, add or substitute claimants to the proceedings. The reference to a “party” amending “his statement of case” was no impediment to this because it encompassed situations where an existing party wished to amend the Claim Form to introduce additional claimants.
Moreover, Mr Justice Picken observed that Mr Justice Mann’s reasoning was partially based on his conclusion that the Claim Form (as a “statement of case”) embodied the claim that was being advanced (meaning that CPR 17.1(1) could not be used to add, as an amendment, a new claim brought by another person). The Divisional Court disagreed with this and found that “statement of case” was a reference to the document itself (in this case, the Claim Form) and not a reference to the claim or claims contained within that document.
Perhaps most interestingly, the Divisional Court briefly considered the policy objectives relating to the addition of parties. In doing so, they suggested that Mr Justice Mann’s interpretation was contrary to the overall scheme of CPR 17 and CPR 19 and inconsistent with the overriding objective and previous authorities. Further, they observed that the effect of G4S was essentially to mandate that new proceedings should be issued every time claimants in group litigation needed to be added at the pre-service stage. That was a disproportionate approach to costs and, at its most extreme, could constitute a denial of access to justice.
ii. The Second Issue
As to the Second Issue, Mr Justice Picken was emphatic in holding that the post-service requirement to obtain written consent for new joiners under CPR 19.4(4) could not be imported to amendments made without leave under CPR 17.1. His main reason for this was the wording of CPR 19.4(1), which stated that the court’s permission was “required to remove, add or substitute a party unless the claim form had not been served”. On that basis, he noted that the carve-out in respect of the pre-service stage “could not be clearer”.
As a corollary to this, given that CPR 19.4(2) and (3) (as well as CPR 19.4(5) and (6)) went on to address post-service matters, there was, in those circumstances, no justification for suggesting that CPR 19.4(4) applied to anything other than a post-service application to amend. Moreover, it was to be assumed, in the absence of any express provision in CPR 17.1(1), that no requirement for written consent had been intended by the draftsmen.
Echoing the sentiment of similar comments earlier in his judgment, Mr Justice Picken additionally observed that, where an amendment could be made without leave under CPR 17.1, the same level of formality as at the post-service stage was not needed (including a requirement akin to CPR 19.4(4)). To this end, protection was afforded to other parties by providing them with a mechanism to apply to the court to disallow such amendments within 14 days of service, pursuant to CPR 17.2.
Notwithstanding the above, the Divisional Court accepted that were CPR 19.4(4) to apply, the mere act of the solicitor signing the amended document (in this case, the Claim Form) would not count as consent. Rather, a separate document recording the additional claimants’ consent had to be filed before any joinder could take place.
Commentary
Given that this was a decision of the High Court (albeit sitting as a Divisional Court), the judges would usually feel compelled, as a matter of judicial comity, to follow the judgment of Mr Justice Mann in G4S. The fact that they declined to do so by issuing a detailed and carefully crafted rebuttal of Mr Justice Mann’s reasoning recognises and reinforces the view that Mr Justice Mann’s decision should not stand as the leading case on these issues. Moreover, Lord Justice Dingemans’ short judgment, following Mr Justice Picken’s, is perhaps indicative of how the points raised in G4S and this judgment would be resolved if they were to be argued before the Court of Appeal.
The G4S judgment should now be viewed through the prism of its particular facts. There, it was evident that the provisions of CPR 17.1(1) were used to add the great majority of claimants to the Claim Form after the expiry of the limitation period, an approach that arguably constituted an abuse of process. Further, there were problems with misdescriptions of the added claimants. As Mr Justice Mann put it, the issues in that case arose from “an apparent failure to get all the claimants’ ducks in pen, let alone in a row, when that could have been done some time before”.
However, in attempting to come to what, in his view, was the correct result (ie strike out of the claims added without permission to the Claim Form between issue and service), Mr Justice Mann felt compelled to adopt a strained interpretation of the rules. In coming to that interpretation, he appears to have lost sight of the architecture of and the intention behind CPR 17.1 and CPR 19.4. It is notable in this respect that the defendants’ legal team chose to remain neutral in this application rather than defend it.
Conclusion
The Divisional Court’s judgment restores some much-needed clarity and perspective following the G4S decision, and better reflects the reality of bringing large multi-party actions. It also acknowledges the important role group litigation now plays in providing redress to individual claimants and the high barrier to entry that Mr Justice Mann’s judgment potentially imposed on those wishing to participate. While those representing claimants in large group actions should be encouraged to engage their clients well in advance of any limitation period, the courts should not permit rules relating to the addition of parties to be used by defendants for unfair tactical gain.
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