Divisional Court disagrees with G4S on power to add claimants before service of a Claim Form

14/02/22

The Divisional Court (Dingemans LJ and Picken J) has determined that a claimant can be added to a Claim Form under CPR 17.1 without the Court’s permission at any time prior to service, thereby disagreeing with Mann J’s conclusion in Various Claimants v G4S Plc [2021] EWHC 524 (Ch), [2021] 4 WLR 46 that there was no such power.

The issue arose in the case of anticipated group litigation against entities in the Daimler / Mercedes group concerning NOx emissions from Mercedes diesel vehicles. Claims have been intimated by firms claiming to represent over 100,000 claimants.

CPR 17.1(1) provides that “A party may amend his statement of case at any time before it has been served on any other party” but by CPR 17.3(2) is subject to (amongst other things) CPR r.19.1 and 19.4 which concern the addition or substitution of parties.

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.”

In G4S, Mann J had held that CPR 17.1 did not permit amendment of a claim form to add other claimants to proceedings between the issue and service of the claim form since CPR 17.1(1) was available only to an existing claimant (who was not, at that stage “[a] party”), He also held that CPR 19.4(4) applied to such an amendment and that the requirement for written consent was not satisfied merely by completion of a statement of truth on an amended claim form signed by new claimant’s solicitor.

The Divisional Court considered that Mann J’s interpretation, in particular in confining a ‘party’ under CPR 17.1 to an existing party only, was too restrictive. The impracticalities faced by group litigants were held to “amply demonstrate” that CPR 17.1(1) ought not to be viewed in so restrictive a fashion. “To require claimants in group litigation to have to issue separate proceedings every time that additional claimants are sought to be added entails a disproportionate approach to costs and, worse still, potentially represents a denial of access to justice.”

In light of this conclusion, the Divisional Court did not need to rule on the interpretation of CPR 19.4 as the rule applied only to amendments made after service. However, the Divisional Court confirmed that it is clear that where r.19.4 does apply, a solicitor signing a claim form cannot count as a sufficient consent under CPR 19.4(4).

The published summary of the judgment is here.