This case concerned an application for a declaration that two individuals were properly added as Claimants to the underlying proceedings pursuant to CPR 17.1(1) by an amendment to a claim form: (i) without the written consent of the other parties and without permission of the Court as provided by CPR 17.1(2), and (ii) without also those individuals being required by CPR 19.4(4) to give written consent to their being added as claimants to the proceedings.
The application arose in one of what is anticipated as many claims against the Defendants, companies in the Daimler Group which manufacture and sell Mercedes vehicles in the UK and elsewhere, in respect of emissions from Mercedes diesel vehicles of models that had been the subject of mandatory recall by Germany’s Federal Motor Transport Authority or voluntary service measures initiated by the Daimler Group.
In around June 2020, various law firms began receiving instructions from clients in relation to the claims. A steering committee for proposed group litigation was formed, with whom the Defendants agreed a general extension of time for service of claim forms. The only exception was a claim form served for the purpose of facilitating the making and determination of an application for the declaration sought in the present case, and stayed thereafter for all purposes until 15 October 2021. Accordingly and for these purposes, the claim form that was the subject of the present application was served on 12 October 2021, after having been effected on 22 September 2021.
CPR 17.1(1)-(3) provides:
(1) A party may amend his statement of case at any time before it has been served on any other party.”
(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with rule 19.4.
CPR 19.4(1)-(2) and (4) provides:
(1) The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served.
(2) An application for permission under paragraph (1) may be made by –
(a) an existing party; or
(b) a person who wishes to become a party.
[…]
(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.
In Various Claimants v G4S Plc [2021] EWHC 524 (Ch), Mann J decided:
Counsel for the Claimants in the present case invited the Court to hold G4S an inaccurate statement of law on both points, primarily because, although Mann J granted the claimants in that case permission to appeal, the appeal did not proceed for other reasons. It was further submitted that the resulting uncertainty in the law was impeding the efficient and proportionate progress of, not only the present proceedings, but group actions more generally.
Accordingly, the Claimants contended that:
Picken J, in the leading judgment and with which Dingemans LJ agreed, first addressed CPR 17.1 and considered CPR 17.1(1) is to be read alongside CPR 19.4(1) such that those two provisions form a “complete regime for adding parties which applies both pre- and post-service.”
Picken J considered the key distinction between these two stages reflected the fact that, pre-service a defendant has yet to be served and has not been called upon to do anything in relation to the proceedings. Accordingly, Picken J stated at [38]:
…it is unlikely that there should be a more restrictive ability to amend at the pre-service stage than at the post-service stage. Indeed, if anything, given that at the pre-service stage, the other party (here, the Defendants) will not yet have been troubled to respond to a claim form which has been served, it might be expected that the ability to amend should be greater than at the post-service stage.
Picken J further noted that, even in post-service applications to amend, CPR 19.4(1) expressly permits amendments that “remove, add or substitute a party,” and there is nothing in CPR 17.1 to suggest that such scope for amendment does not also apply to pre-service applications under CPR 17.1(1). Nor is there any indication that “a party” does not include a claimant. On the contrary, CPR 19.4(4) expressly addresses the situation where the proposed amendment involves a claimant being added or substituted. Accordingly, it ought not be an objection, in principle, to an amendment being made under CPR 17.1(1) which entails the addition of a claimant.
More importantly, Picken J considered the fact that CPR 17.1(3) itself specifically refers to amending a statement of case by “removing, adding or substituting a party” in accordance with CPR 19.4 (at the post-service stage) reinforced the view that CPR 17.1(1) ought not to be read in so restrictive a fashion.
Picken J considered the second issue could be disposed of relatively shortly: it was it clear to him that CPR 19.4(4), as a post-service provision, has no application to the addition of parties without leave of the Court pursuant to CPR 17.1.
Picken J differed on this from Mann J on a number bases:
Picken J therefore disagreed with Mann J in G4S on both points, and considered it appropriate to grant the declarations sought.
Dingemans LJ agreed with Picken J on both conclusions and reasoning, but further stated the view that it was appropriate for the court to declare what it considers to be the correct construction of CPR 17 and CPR 19, given the decision of Mann J in G4S was of coordinate jurisdiction. On this, Dingemans LJ pointed out that the former case was one in which issues of limitation ‘loomed large’ and there were difficulties of misdescriptions concerning the proposed new claimants. Furthermore, the Defendants in the present case had taken a neutral stance on the present application: the fact that none of the parties had sought to argue in support of the interpretation of CPR 17 and CPR 19 adopted by Mann J clearly did not mean that Mann J’s interpretation was wrong, but it did suggest that the court should look at the matter for itself.
Whilst there are now two competing High Court authorities relating to the interpretation of CPR 17.1 and 19.4, it is highly likely that this more recent decision of the Divisional Court will be regarded as more authoritative and that the decision of Mann J in G4S ought to be regarded as not representing the state of the law. Whilst, in some ways, a decision of the Court of Appeal would have provided welcome clarity, any advocate seeking to rely on G4S is likely to face an uphill struggle given the content of the concurring judgments in Rawet v Daimler.
This decision is also a salutary reminder of the less formal approach to amendments pre-service, and the policy reasons behind this. Before a claim form is served, a defendant is not called upon to respond to it or engage with the litigation in any way. It is therefore difficult to see why the claimant(s) ought to be put to the trouble and expense of making formalised applications or obtaining prior consent from the other parties. After all, claimants have only a finite period of time within which validly to serve a claim form – this approach does not permit claimants endless indulgence in formulating their claims. Further, this case is a reminder that defendants are afforded a degree of protection by CPR 17.2(1), which allows them to apply for a pre-service amendment to be disallowed.
The change in the law brought about by Rawet v Daimler will no doubt be welcome news to those engaged in group litigation. The alternative to pre-service amendments, as noted by Mann J in G4S, is for a prospective ‘new’ claimant to bring their own claim individually, and then seek for that claim to be consolidated with the existing proceedings. As Picken J noted, such an approach would appear to be at odds with the overriding objective. Neither litigants and their legal teams, nor (one would think) the Court, can have relished the prospect of issuing a vast number of individual claim forms relating to near-identical issues where amending a claim form and pursuing the matter as group litigation from the outset is plainly the more proportionate course. The reasoning in this case averts that escalation of the already significant cost and administrative burden of pursuing group litigation.
Case comment provided by Ryan Hocking and Amy Held.
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