In Rawet and others v Daimler AG and others1 the Divisional Court has clarified when claimants can be added to claim forms where proceedings have been issued but not yet served under CPR 17.1. Disagreeing with the earlier decision in Various Claimants v G4S Plc, the court held that CPR 17.1 permitted new parties to be added or substituted to claims before they were served without the need for consent or the court's permission. An amendment to a statement of case under CPR 17.1 can include an existing party 'introducing' additional parties to its claim. Justice Mann's first instance decision in G4S had adopted too restrictive an approach.
What are the practical implications of this case?
This judgment means it will now likely be easier for both claimants and defendants to be added to claim forms before they are served, subject to the provisions of the Limitation Act 1980.
The effect of the judgment in G4S had been to restrict the provisions of CPR 17.1 (which permits a party to amend their statement of case at any time before service without the court's permission) to existing parties only. Disagreeing with that decision, the court in Rawet concluded that it is a form of amendment for an existing party to 'introduce' an additional party to their claim.
Because parties can be added without the permission of the court under CPR 17.1, there is no obligation to seek the court's permission under CPR 19.4. The court in Rawet held that CPR 19.4 only applies to the removal, addition or substitution of parties after the claim form has already been served.
Although the issue was not necessary for the court to decide, it concluded that where CPR 19.4 does apply, a solicitor's signature on the amended claim form does not constitute the necessary 'consent in writing' from a party to addition or substitution as a claimant under CPR 19.4(4).
In group litigation in particular, the ability to add parties to claims prior to service without needing the court's permission will be vital. Where parties are added after proceedings are issued, however, the necessary written consent from each party must be filed at court. A solicitor's signature on the statement of truth on the amended claim form will not be enough.
What was the background?
Solicitors for the claimants in a proposed group action against Daimler and Mercedes sought declaratory relief to the effect that:
- two individuals were properly added as claimants in the proceedings by an amendment to the claim form prior to service under CPR 17.1(1);
- neither the written consent of the other parties nor the permission of the court were required; and
- the individuals were not required by CPR 19.4(4) to give written consent to their being added as claimants to the proceedings.
The provisions of CPR 17.1 and 19.4 were considered in G4S. Mann J decided that CPR 17.1 does not permit amendment of a claim form to add claimants between issue and service of the claim form because CPR 17.1 only applies to existing claimants. Further, he then concluded that the provisions of CPR 19.4(4) had not been satisfied by the solicitor acting for the claimant completing the statement of truth on the amended claim form.
Mann J granted permission to appeal his decision but the appeal did not proceed. The claimants in Rawet therefore submitted that the legal position was in a state of uncertainty and that for the efficient and proportionate conduct of the proposed group litigation, it was desirable to clarify the position.
What did the court decide?
The court found that the two individuals were properly added to the claim pursuant to CPR 17.1(1), which permits an existing party to amend their statement of case including by adding, removing or substituting additional parties prior to the service of the claim form.
Mann J had adopted an overly restrictive approach by finding that the provisions of CPR 17.1 did not permit the addition or removal of parties. That approach would mean that the position prior to service was more restrictive than that applying after service.
The court held that as it was sitting at first instance in the High Court (albeit as a Divisional Court) it was bound to follow Mann J's first instance High Court decision in G4S, unless convinced that the judgment was wrong. The court concluded that in this case, it could depart from Mann J's decision because both Lord Justice Dingemans and Mr Justice Picken had come to a clear and different conclusion about the proper interpretation of CPR 17 and CPR 19.
The court held that no form of consent (from other parties or the party being added) is required pursuant to CPR 17.1 and that, specifically, CPR 19.4(4) does not apply where an amendment is made to a claim form without the permission of the court pursuant to CPR 17.1. CPR 19 is not general in its application. However, where CPR 19.4(4) does apply, the court held, obiter, that a separate document must be filed in advance of the amended claim form expressing the consent of the party to the addition. The requirement is not satisfied by a solicitor signing the amended claim form on behalf of their client.
This article was first published on Lexis®PSL on 9 March 2022
- Court: Queen's Bench Division
- Judge: Lord Justice Dingemans and Mr Justice Picken
- Date of judgment: 10 February 2022