Ruling addresses use of ‘omnibus’ claim forms in mass actions

Toby Coughlin and Jacob Hay of Pinsent Masons were commenting after the High Court considered whether it would be appropriate to require multiple claims raised by ex-military personnel against the UK Ministry of Defence be resubmitted individually on separate claim forms.

A claim form is sometimes called an ‘omnibus’ claim form where legal representatives have aggregated the claims of multiple individuals. The use of omnibus claim forms is permitted in the courts of England and Wales under the Civil Procedure Rules (CPRs). The CPRs state that a claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings, as well as that any number of claimants or defendants may be joined as parties to a claim.

The way those CPR provisions are to be interpreted has been the subject of recent litigation in two separate cases – most recently, by the Court of Appeal earlier this year.

The case law is focused on how the concept of ‘convenience’ should be assessed. In essence, it has established that whether it is convenient to use a single claim form is a question that judges have broad discretion in how they answer based on the particular facts arising in each case before them, but that to meet the convenience test does not require it to be envisaged that a trial of common issues brought by multiple claimants should produce a binding determination on all parties nor a single final trial hearing to be possible or practicable.

The High Court has developed this position further in its ruling.

First, it said that “convenience is not to be judged exclusively from the perspective of the parties”. It said that it is “legitimate and appropriate also to take into account the convenience and capacities of the court and the court system”, adding that such an approach is in fact mandated by the overarching objective of the CPRs to ensure cases are to be dealt with justly and at proportionate cost.

Second, the court said that it considers that both the CPRs and their statutory predecessor directly contemplate the English and Welsh courts being able to disaggregate claims from a single claims form if dealing with them via a single form becomes “inconvenient”.

In the case before the High Court, a previous court order had led to the effective disaggregation of claims from the omnibus claim forms that had been in operation, meaning that they were, to all practical intents and purposes, already being dealt with separately. In the circumstances, lawyers for both the ex-military personnel claimants and the MoD opposed disaggregation and argued that it remained ‘convenient’ for the multiple claims to remain on a single claim form.

The High Court agreed with the parties in this case – but not before it considered the convenience of the court and the court's systems in maintaining the status quo. Considering the specific circumstances of the case, it said that requiring new individualised claim forms to be submitted at this stage would create duplicative work for the parties and “impose its own administrative burden on the court”, as well as “frustrate the legitimate expectations of the claimants concerned”.

The court ordered, though, that no more claims be added to the case file in the court’s case management system and that any further claims be issued via a fresh claim form. It proposed a maximum number of claimants to be covered by any new claims form to be set at 60.

In a post-script to its judgment, the court said that the Civil Procedure Rule Committee (CPRC) is considering the recent case law pertaining to the CPRs and omnibus claims forms, suggesting that further guidance on the topic may follow. Recent CPRC meeting minutes (9-page / 189KB PDF) confirm that the group intends to report on these issues soon.

Toby Coughlin of Pinsent Masons said: “Collating the claims of many claimants into an omnibus claim form can raise issues of convenience at all stages of a piece of litigation, from the preparation of pleadings which adequately deal with the claims of every claimant, to the assessment of quantum for claimants whose entitlements will often vary from one individual to another. This decision highlights that the courts may hesitate to approve the use of an omnibus claim form at the outset of proceedings where there is no clear pathway through all the issues which may arise along the way.”

Jacob Hay of Pinsent Masons added: “This decision helpfully highlights that ‘convenience’ is not a foregone conclusion where there is a large number of cases. There are very real logistical difficulties for the court in the use of a single claim form for large volumes of claimants – difficulties which would only increase as the claim became larger and more unwieldy. The court is clear that this is a legitimate concern.”

“It remains to be seen what the CPRC will decide after considering the matter. However, the court’s indication here is that a long-term view of ‘convenience’ should be taken. This reflects that the fact that while it may be possible to make statements of case sufficiently generic to cover thousands of claimants, this practice often only masks significant individual differences between the claims that will require resolution at a later date,” he said.