Group litigation: Conflicting first instance decisions on adding claimants prior to service

The Divisional Court in Rawet & Ors v Daimler AG & Ors [2022] EWHC 235 (QB) (Rawet) has ruled that claimants can be added to a claim form prior to service without the court’s permission under CPR 17.1. Mr Justice Picken and Lord Justice Dingemans reached a different conclusion from that of Mr Justice Mann in Various Claimants v G4S Plc [2021] EWHC 524 (Ch) (G4S) with which a number of group action claims have been grappling.

Group litigation - context

In group or multi-party litigation, it is often the case that as a claim gathers momentum, new claimants emerge and wish to join the proceedings. New claimants may be encouraged by press coverage about a claim or the fact that existing claimants have commenced proceedings. Many group action claims are also funded and involve time-consuming ‘book building’ whereby claimant firms and litigation funders have to identify, contact and sign up as many group action claimants as possible to funding agreements.  Where limitation is in issue, claimant groups might rush to issue a claim form and then continue to bookbuild, or conduct investigatory work, adding claimants later. This can cause uncertainty and disruption for defendants. The decisions described below relate to claimants added in the four-month period after a claim is issued but before it has to be served.

Key CPR provisions

CPR 17.1(1) states:

“A party may amend his statement of case at any time before it has been served on any other party.”

The relevant provisions of CPR 19.4 are as follows:

“(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.

(4) 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 decision in G4S

In G4S, Mr Justice Mann held that:

1. CPR 17.1(1) did not permit new claimants to be added to an issued claim form before service.An existing "party" who seeks to amend "his statement of case" is not doing that if the amendment is to introduce a different party with a distinct and separate case; and
2. the additional claimants were not validly added pursuant to CPR 19.4(4) because the required written consent had not been filed. Albeit obiter, Mr Justice Mann considered, specifically, that a statement of truth on the amended claim form, signed by the claimants’ solicitor, would not suffice as such a consent.

The decision in Rawet

The Divisional Court in Rawet decided that G4S was too restrictive and, the relevant additional claimants in Rawet could be added to the proceedings pre-service pursuant to CPR 17.1. In the lead judgment, Mr Justice Picken explicitly disagreed with G4S and held that:

1. CPR 17.1(1) permits an existing party to amend “his statement of case” in order to join an additional claimant. In a case like this, where solicitors are acting on behalf of a steering group in group litigation and so, in effect, on behalf of both existing and proposed claimants, it is open to the Court to proceed on the basis that the amendments are being effected, at least in part, by existing claimants. On that basis, the fact that CPR 17.1(1) makes reference to a party amending “his statement of case” presents no difficulty;
2. The approach in G4S was too restrictive regarding the interpretation of “his statement of case” in CPR 17.1(1). CPR 17.1(1) is a reference to a document (in the present case, a claim form), and not a reference to the claim or claims contained in that document;
3. The distinction between the pre-service stage and the post-service stage is clear: CPR 17.1(1) applies to the former while CPR 19.4(1) applies to the latter. The two rules dovetail to provide a complete regime for adding parties which applies both pre and post-service;
4. CPR 19.4(1) is explicit in stating that an application for permission to amend may be to “remove, add or substitute a party, unless the claim form has not been served”” (emphasis added). It would be difficult to make sense of the structure of CPR 17 and CPR 19 unless CPR 17 is interpreted to include the power to amend the claim form to add in a party before service of the claim form;
5. CPR 19.4(4) expressly addresses the situation where the proposed amendment involves a claimant being added or substituted. It follows that there ought not to be an objection to an amendment being made under CPR17.1(1) which entails the addition of a claimant; and
6. CPR 19.4(4) (the written consent requirement) is expressly concerned with the post-service stage.The need to make an application to the Court in order to effect an amendment would involve importing into the pre-service regime a requirement which is nowhere to be found within CPR 17.1. In the absence of an express requirement akin to CPR 19.4(4), the intention of those who drafted CPR 17.1 must have been that there is no such requirement.

As a matter of precedent the formal position is that there are now two conflicting High Court authorities on whether additional claimants can be added without permission under CPR 17.1. The Defendant in Rawet was neutral on this issue and it is understood that there is no appeal from the judgment to the Court of Appeal.