Garnham: Topical issue
The civil courts’ case management system is a limitation of the ability of solicitors to join multiple claims to a single claim form, a High Court judge has said.
Mr Justice Garnham said the “convenience and capacities” of the courts and not just the parties must be taken into account when decisions are made about the practice.
He said, as a result of processing “difficulties”, the omnibus claim form for non-freezing cold injuries (NFCI) cases brought against the Ministry of Defence (MoD) had become “a repository for claims which, when they become active claims, are transferred to a new file”.
If it could be anticipated that “a stage will be reached where the cases in the cohort will all require individual determination, then a court may be hesitant to approve the use of an omnibus claim form because of the practical difficulties that may be encountered and as are exemplified by this case”.
The judge observed that omnibus claim forms were “topical at the moment”, in the wake of last year’s ruling in Abbott v Ministry of Defence, which was overturned by the Court of Appeal in April in Morris & Ors v Williams & Co Solicitors, when it allowed 134 claimants to start an action against a law firm with a single claim form.
The Civil Procedure Rule Committee is now considering the question of omnibus claim forms and Garnham J said he and Master Davison, with whom he was sitting, had one comment to add.
“Where it appears at the outset that claims which are sought to be joined to an omnibus claim form will not, via trial of lead cases, be dispositive or at least largely dispositive of the cohort, that is a relevant factor in deciding whether to issue an omnibus claim form.
“To put that differently, if it can be anticipated that a stage will be reached where the cases in the cohort will all require individual determination, then a court may be hesitant to approve the use of an omnibus claim form because of the practical difficulties that may be encountered and as are exemplified by this case.
“To put that differently again, the convenience of such a claim form may be short-lived.”
In the case before him, the earliest claim form issued by national firm Hugh James on behalf of former military personnel, in February 2019, listed 45 claimants.
Despite a ruling by Senior Master Fontaine that it was not appropriate to join 45 claimants to the same form, two further omnibus claim forms were issued.
Mr Justice Sweeting ordered in December 2022 that the later claims should be grouped under a single claim number.
By the time of a case management hearing in April 2024 before Master Davison, there were 604 later claims, of which 566 were ongoing.
The dispute over the generic issues was settled ahead of trial, which “had fulfilled [the omnibus form’s] primary purpose” and, from then on, claims “were being, and could only be, progressed and tried individually”.
Meanwhile, the joinder of so many individual claims on to one claim form had given rise to “administrative difficulties” as CE File has “limited search facilities and no facility at all for creating sub-files”.
CE File, the judge said, was not set up to cater for the same defendant being represented by two different firms of solicitors, in this case Keoghs and Clyde & Co.
Having “multiple, active cases – all at different stages of progress – on a single file presents logistical difficulties” for staff, because sub-files cannot be created.
“It also makes it difficult and time-consuming for judges looking at the file to find particular documents. These problems had led to many CE File submissions being rejected or queried, a large backlog and a series of internal discussions as to a better way forward.”
The discussions led to a further order at the end of May 2024, which split the file between the cases where Keoghs and Clyde & Co acted, and directed that, when claims became active, they should be progressed with a new court file with its own case number.
Garnham J said: “The result is that the omnibus claim form is now, in effect, a repository for claims which, when they become active claims, are transferred to a new file.
“The omnibus claim is, accordingly, being progressively ‘disaggregated’ (an expression not found in the rules but which featured prominently at the hearing before us).”
Both sides “opposed disaggregation” and believed that “a single omnibus claim form remained convenient”.
The court accepted that difficulties with CE File “cannot be determinative of the propriety of using or continuing to use a single, omnibus claim form”.
However, “convenience is not to be judged exclusively from the perspective of the parties” and it was “legitimate and appropriate also to take into account the convenience and capacities of the court and the court system”, as mandated by the overriding objective.
Given that the later claim form was “already overloaded”, Garnham J proposed to order that no more claims should be added to it and that new claimants should issue a fresh claim form with a maximum number of claimants – provisionally fixed at 60.
Garnham J added that provided active claims were “marching in step towards a common trial date, there is no reason why they cannot be dealt with in tranches” up to a maximum of three and increasing, “given the near certainty of settlements along the way”, to six.
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