Whether applicants should be allowed to join the group litigation after the cut-off date

The applicants applied to join the register of claims in this group litigation. The Group Litigation Order had provided that no claim may be added to the group register without the court’s permission after a certain given cut-off date and the applications were made after that date. Thirlwall J dismissed the applications.

She held that CPR r3.9 applied in this situation, the cut-off date being a “sanction”: “It is difficult to characterise as something other than a sanction a consequence that those who have not joined the group may not do so without the permission of the court”. In reaching this conclusion, she rejected the applicants’ argument that Taylor v Nugent Care Society [2004] applied (in that case, the Court of Appeal drew a distinction between a claimant who is part of a group not complying with a direction and the position of a claimant who has not yet joined).

Here the delays had been serious and the trial will take place in October. There was no good reason either – delays had been caused by staff shortages within the law firm retained by the applicants and “decisions to dismiss staff were presumably taken for commercial reasons. The consequent neglect of the files was entirely foreseeable”. To grant the application would have been to undermine the discipline of the litigation and to render the cut-off date meaningless.