Morris & Ors v. Williams & Co [2024] EWCA Civ 376

Morris & Ors v. Williams & Co

1. How many people can use a single claim form to start all their claims?
2. It is difficult to imagine a subject of more fundamental importance for civil procedure. The Court of Appeal clarified the relevant rules on 18 April 2024, when giving its much anticipated judgment in Morris & Ors v. Williams & Co [2024] EWCA Civ 376.  This article explains what the Court of Appeal decided and what it means in practice.  References to paragraphs are to the single judgment of Sir Geoffrey Vos, the Master of the Rolls, with whom Lord Justice Lewison and Lady Justice Falk agreed.

Framework

3. Two rules are relevant:
   7. CPR 7.3: “A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings”.
   8. CPR 19.1: “Any number of claimants or defendants may be joined as parties to a claim”.
4. The question whether more than one claimant can use a single or “omnibus” claim form to advance their various claims depends on whether it is convenient for the claims to be disposed of in the same proceedings. CPR 7.3 provides the “convenient disposal” test.  CPR 19.1 allows more than one person to be joined to a claim.
5. In Abbott & Ors v. Ministry of Defence [2023] EWHC 1475 (KB), [2023] 1 WLR 4002 (“Abbott 2”), the Divisional Court construed the two rules. It permitted 3,560 claimants to use an omnibus claim form to sue the MoD for personal injury, overturning the decision of Master Davison [2022] EWHC 1807 (KB) (“Abbott 1”), who had required the claimants to issue separate claim forms.  Three tests for convenient disposal emerged from Abbott 2:
   1. First, are there common issues of law or fact of sufficient importance in all cases that their determination would constitute “real progress” towards the final resolution of all claims?
   2. Secondly, would the determination of the common issues be of “real significance” for all cases?
   3. Thirdly, would the court’s determination of the common issues bind all parties?
6. Like Morris v. Williams & Co, Abbott is a group action, although not subject to a GLO. It is worth recalling how group actions are case-managed and tried.  The parties identify the common issues and the individual issues in the cohort of claims.  The court orders a trial of the common issues alongside lead or test cases.  The lead cases will be determined in their entirety.  The parties then seek to apply the judgment to the non-lead cases.  The court’s determination of common issues normally binds all parties.  Judgment on the individual issues will apply in accordance with the normal rules of estoppel and may have a broader persuasive effect.  The extent to which a determination is “binding” should not be overstated.  If a non-lead case presents materially different facts from the lead cases, the court’s determination of even a common issue may require fresh consideration.
7. Applying this model to group actions is usually common ground: McClean & Ors v. Thornhill [2019] EWHC 3514 (Ch) per Zacaroli J. It has been used for solicitors’ negligence cases, e.g. Various Claimants v. Giambrone & Law [2017] EWCA Civ 1193, [2018] PNLR 2.

Background to Morris v. Williams & Co

8. In Morris v. Williams & Co, 134 claimants sue their former solicitors for negligence in relation to legal advice for the purchase of off-plan units in hotels to be developed and operated by the Northern Powerhouse Development Group. Williams & Co acted for all claimants on identical terms.  Among other things they undertook to advise on the effect of any important documents and identify risks of which they were aware or which were reasonably foreseeable.
9. Williams & Co applied to strike out the claim form as an abuse of process on the basis of Abbott 1. They argued that professional negligence claims against solicitors are irreducibly individual and always turn on the advice required by and provided to the individual claimant.  Judgment in one case would not bind any other.
10. HHJ Jarman KC refused to strike out the claim form because the tests in Abbott 2 (handed down shortly before the hearing) were satisfied: see his judgment at first instance [2023] 7 WLUK 444. He accepted that common issues existed: the definition and scope of duty; breach; recoverable heads of loss and other matters.  The existence of individual issues, including causation and reliance, did not outweigh the importance of the common issues.

The appeal

11. Williams & Co obtained permission to appeal on the basis that Abbott 2 wrongly construed CPR 7.3 and 19.1 and that the test (or tests) were “nebulous and unhelpful”. Unlike at first instance, Williams & Co was able directly to challenge the correctness of Abbott 2.
12. Williams & Co argued that CPR 7.3 (“A claimant may use a single claim form to make all claims which can be conveniently disposed of in a single set of proceedings”) permitted a single claimant to assert his/ her causes of action (that is his/ her “claims”) if it would be convenient for those causes of action to be determined together. Multiple claimants did not come within the rule.
13. On CPR 19.1 (“Any number of claimants or defendants may be joined as parties to a claim”), Williams & Co argued that “claim” means “cause of action”, i.e. the cause of action of the single claimant under CPR 7.3. Other people could be joined as claimants to that cause of action, but they could not assert their own causes of action in the same proceedings.

The judgment

14. The Court of Appeal rejected Williams & Co’s case on construction [46 to 48]. Section 6 (1) of the Interpretation Act 1978 provides for the singular to include the plural save where the context otherwise requires.  The 1978 Act applies to the CPR.  It was impossible to read “A claimant” as meaning claimant singular.  The wording of the rule did not prevent multiple claimants using an omnibus claim form.
15. Williams & Co’s interpretation of CPR 19.1 was unduly narrow and unustainable in the light of the meaning of CPR 7.3. The Court of Appeal agreed with Abbott 2: “claim” means “set of proceedings”, as numerous examples in CPR Part 19 make clear.  Williams & Co undermined its own case by accepting that claims arising from a common event or series of events could feature on a single claim form.
16. Critically, the Court of Appeal rejected the tests for convenient disposal under CPR 7.3 provided by Abbot 2 [49 to 52]. The only question that the court must ask is whether the various claims can be conveniently disposed of in a single set of proceedings.  Convenience is an ordinary word that requires no gloss or test:

“It seems to me that 19.1 and 7.3 must be construed as meaning what they say: any number of claimants or defendants may be joined as parties to proceedings, and claimants may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.  There is no exclusionary rule of real progress, real significance or otherwise.  The court will determine what is convenient according to the facts of every case.” [49].

17. While the Court of Appeal discarded the tests adumbrated in Abbot 2, it did not doubt the actual determination in that case. Indeed, the Master of the Rolls said that many of the factors considered in Abbott 2 are relevant to the convenient disposal test under CPR 7.3 [56 to 57].
18. The Court of Appeal favoured the approach of the Rules of the Supreme Court 1999, which had not been cited in Abbott [36 to 45]. In brief:
    1. RSC Order 15 rule 4 permitted a single writ to be issued as of right where (a) “if separate actions were brought…some common question of law or fact would arise in all the actions” and (b) “all rights to relief claimed in the action…are in respect of or arise out of the same transaction or series of transactions”.
    2. The latter requirement did not mean that the co-plaintiffs needed to be parties to the same bilateral dealing, merely that there was a common basis or common ground of the claim: Drincqbier v. Wood [1899] 1 Ch 393 per Bryan J.
    3. The rules had taken this form since 26 October 1896, when they were changed to reverse the effect of the House of Lords’ decision in Smurthwaite v. Hannay [1894] AC 494, as explained by Scrutton LJ in Payne v. British Time Recorder Company [1921] 2 KB 1, 16. The concept of “convenience” in the old rules supplied an interpretative link to CPR 7.3.
    4. There was ample evidence of a consistent practice under the old rules drawn from the official Guide to Group Actions (1991) and many well-known cases including the Lloyd’s litigation of the 1990s. The claimants in Morris v. Williams & Co would have been able to sue together under Order 15 rule 4.
19. The Master of the Rolls invited the Civil Procedure Rules Committee to consider whether CPR 7.3 would be better expressed if it referred to the need for “some common question of law or fact” to arise, as had Order 15 rule 4 [8 and 51].
20. Given HHJ Jarman KC’s finding that the 134 claims in Morris v. Williams & Co included significant common issues of law and fact, the Court of Appeal exercised the case management discretion afresh. It concluded unhesitatingly that the claimants were entitled to use a single claim form because it would be convenient for their various claims to be tried in a single set of proceedings.  The appeal was dismissed [53, 59 to 61].

Discussion

21. Prior to Abbott 1, there was no indication that CPR 7.3 and 19.1 caused difficulty in practice. What does Morris v. Williams & Co mean for litigants and their advisers?
22. When deciding whether to use an omnibus claim form, the parties should consider what (if anything) unites the individual claims. In most if not all cases it will be the common issues of law or fact which brought the claims together in the first place.  Do those common features make disposal in a single set of proceedings convenient?
23. Many factors will be relevant. The Court of Appeal agreed with Abbott 2 that the convenience of common disposal is not the same thing as the convenience of common case management and does not require a single trial [56 to 57].
24. Convenience will be made out where Order 15 rule 4 would have been satisfied or where the determination of common issues will bind all parties [48, 51]. These concepts are not exclusionary tests under CPR 7.3: “There is no test beyond the words of rule 7.3” [51].
25. The fact that claims are technically distinct does not necessarily rule out using an omnibus claim form. But if the causes of action comprised in the individual cases require separate consideration, the convenience of common disposal is unlikely to be established.  An example is claims under section 140A of the Consumer Credit Act 1974, which turn on fact-sensitive assessments framed by the legislation: Angel & Ors v. Black Horse Rock Limited (HHJ Worster, 8 September 2023, unrep.) [50].
26. In the solicitors’ negligence arena, while it would be possible to convene a group action against a single defendant firm, it would be more difficult to sue different defendant firms acting under different retainers, a fortiori where different schemes are involved. See e.g. Niprose Investments Ltd & Ors v. Vincents Solicitors [2024] EWHC 801 (Ch) (application to strike out the claims of 35 claimants against various defendants adjourned for the consideration of draft amended particulars of claim).
27. The court will be astute to guard against abuse arising from the use of an omnibus claim form, e.g. avoiding the obligation to give Initial Disclosure in the Business and Property Courts by reference to page and document limits under paragraph 5.3 (3) of CPR PD 57AD [54]. Using an omnibus claim form is not a procedural short cut.  It is vitally important to plead the facts of the individual cases with proper particularity to enable the parties and the court to understand what is alleged in each case and formulate the right model for case management and trial.

Conclusion

28. Claimants will welcome Morris v. Williams & Co and any clarificatory amendments of the rules that follow. By overturning Abbott 2 on the law, the Court of Appeal has brought a degree of simplicity to CPR 7.3 and 19.1.  While litigants might think that the test is now wide open, certain well-established signposts are available.  It is hoped that the litigation landscape will return to its formerly stable condition where disputes about using an omnibus claim form were rare.

Read the full judgment here.

Read Simon’s articles on the judgment at first instance in Morris v. Williams & Co here and Abbott v. MoD here.

Simon Johnson is leading counsel for the successful claimants in Morris v. Williams & Co and led Jennifer Meech (Serle Court) in the Court of Appeal.  Simon and Jennifer were instructed by Penningtons Manches Cooper LLP (David Niven and Nicole Blakey).