Joining new claimants to existing claim forms - claimants beware!
The recent judgment of Mann J. in Various Claimants v G4S Plc  EWHC 524 (Ch) (“G4S”) has attracted a great deal of interest, in particular as to two aspects of the judge’s findings concerning amendment of the claim form pre-issue (CPR17.1). It is a long and detailed judgment on various aspects of the group of cases before the court, which I have recently analysed in detail in advising on other cases. The decision is being appealed.
Firstly, the judge held that it is not open to a claimant or group of claimants who have issued a claim form, to add claimants to their number prior to service under CPR17.1, which appears on its face to allow just that without application (ie. giving a very broad amendment power in the claimants as to claims and parties), since, he held, the claims of the new claimants are entirely distinct claims so that to add the new claimants is not “amending the statement of case” of the existing claimants before service. I suppose it goes without saying that only the existing claimants could amend the existing claim so if it is legitimate to add claimants consistent with the overriding objective including as to efficiency of litigation and costs proportionality, only they could do it. However, the judge said:
36. The provision then allows that party to amend " his statement of case". In my view the natural meaning of those words is such that it refers to the statement of case embodying the claim that that claimant is making or seeks to make. It distorts the words to take it any wider than that. An amendment to plead another claimant's entirely separate case is not so much an amendment of the existing claimant's claim form by that claimant (though it would, I accept, change the document itself); it is bringing in a new person who is bringing in a separate and distinct claim. It does not seem to me to be a natural construction to treat that as an amendment by the existing party of "his statement of case" when one considers what a statement of case is.
He did not deal expressly with the obvious point that this reading also seems to work to prevent a claimant adding a new and separate cause of action to that already particularised in the claim form (and particulars of claim if lodged with the claim form).
Secondly, in cases where there could - arguably - be a limitation defence against the claims of a new claimant, the judge held that it was not permissible to add those claims under CPR17.1 because of the effect of CPR17.4, 19.4 and 19.5 and the dicta in Chandra v Brooke North  EWCA Civ 1559, a case clearly concerned with post-service applications to amend.
Taken overall, this seems a quite narrow and restrictive interpretation of a deliberately very broadly drafted permissive provision apparently intended to enable the claimant to reflect on and perfect the claim form prior to service, whereupon the defendant becomes engaged in the process and the court is required to manage it. In the case of group cases, it will commonly be the case that additional claimants are being gathered ongoing and are suitable to be joined to the original proceedings, avoiding an unwieldy mass of individual claims requiring to be consolidated to be managed sensibly together, and the wasteful extra costs necessarily incurred.
Thirdly, the judge held also that the requirement of CPR19.4 - that anyone to be joined as claimant must have given written consent - applied to joinder pre-service, albeit that CPR19 generally deals with applications to the court ie. post service. This means, if correct, that even claimants joined to a claim form before the claim has become fully “live” by being served upon the defendant/s must have provided that written consent and that consent must have been lodged prior to the joinder. The judge held that signature by the instructed solicitor is insufficient for this purpose, thus making the formalities for a joining claimant much more onerous than for the original claimant/s even before any claim has been served upon a defendant.
It is highly arguable the decision is wrong in all 3 respects. Suffice it - for now - to say that the rules currently draw very clear lines between the (non-) management of cases prior to service of proceedings and their management after, and the broad power to amend pre-service is expressly recognised in CPR19.4(1) as to “parties” to be added, not merely defendants which latter Mann J thought would “give content to” CPR17.1 and 19.4(1). It is to be remembered, as the judge noted, that CPR17.2 provides clear mechanism for challenge to the joinder if a defendant is aggrieved.
Perhaps unsurprisingly given the effect of this decision upon management of multi-claimant cases, the judge gave broad permission for appeal, so we may hope that the Court of Appeal will soon revisit these issues. Meanwhile, in light of G4S practitioners should tread warily in deciding whether to add new claimant/s, however sensible that might be for the efficient management of a case where, for example, all liability issues are common, and as to ensuring written consent is lodged prior to the joinder. This also seems somewhat unwieldy in that it suggests that lodging of the consents with the amended claim form will not suffice. Oh dear.
Watch this space!