The recent High Court judgment in Various Claimants v G4S plc provides important guidance on the ability of claimants to be added to a claim before service, and on amendments to the descriptions of claimants after service where the relevant limitation period arguably has expired.
Background
The original claimants issued the claim against G4S on 10 July 2019. This was arguably the last day of the limitation period before its expiry. The claim form was served on the defendant on 30 April 2020. During the intervening period, and unknown to the defendant, the claim form had been amended six times in order to add or remove claimants and to make alterations to the names of various claimants. At its peak, the claim form contained 182 claimants before settling down to 93.
Once the claim form was served, the defendant challenged the addition of claimants who were added after the issue date. This was done on the basis that the CPR do not permit the addition of claimants before service without the permission of the court both generally and specifically where there is a potential limitation defence. The defendant also challenged the change of names of various claimants on the basis that the requirements of the CPR in respect of amendments outside of the limitation period had not been met.
Addition of new claimants to claim form after issue but before service
The claimant relied on CPR 17.1 to add and remove claimants after the issue of the claim form but before service.
CPR 17.1 states that:
“A party may amend his statement of case at any time before it has been served on any other party“.
(Emphasis added.)
The court found that CPR 17.1 did not permit additional claimants to be added to an existing claim form prior to service without the court’s permission. The court relied on the language of the rule and found that reference to a “party” here must mean “existing party”. To allow this provision to introduce another claimant with a different claim was not a natural reading of the rule.
The claimants highlighted that CPR 19.4(1) appeared to contemplate a change of claimant before service. CPR 19.4(1) states that:
“The court’s permission is required to remove, add or substitute a party, unless the claim form has not been served“.
The court was unpersuaded, however. It held that this clause would still be operative even if adding a claimant with its own separate claim is not permitted under CPR 17.1. For example, it could cover the removal, addition or substitution of a defendant as well as permitting a claimant to remove itself from a claim form.
Consequently, the attempt to join separate claimants failed in the court’s eyes.
Written consent to add or substitute claimant under 19.4(4)
CPR 19.4(4) provides that:
“Nobody may be added or substituted as a claimant unless—
(a) he has given his consent in writing; and
(b) that consent has been filed with the court.”
The defendant argued that no written consent in respect of any of the additional claimants had been filed. The claimant relied on the amended claim forms signed by the solicitor.
The judge held (obiter) that this was not sufficient and that, in order to comply with this rule, a separate document containing the written consent signed by each new claimant (and not their solicitor) is needed and that this document should be filed before the addition of any claimant.
Extent to which alterations to a party’s name can be made outside of limitation period
While obiter, the judgment also carefully considers the principles in respect of applications to amend a party’s name or substitute a party and brings together the authorities on this.
Various claimants were not accurately described in the claim form and the defendant sought to strike out these claimants because they had not been properly identified. A subsequent application by the claimant was made to amend the names outside of the limitation period under CPR 17.4 and/or CPR 19.5.
CPR 17.4(3) provides that:
“The court may allow an amendment [after the end of the relevant limitation period] to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.”
(Emphasis added.)
And CPR 19.5 states that:
(2) The court may add or substitute a party [after the expiry of the limitation period] only if –
[…]
(b) the addition or substitution is necessary.
(3) The addition or substitution of a party is necessary only if the court is satisfied that
(a) the new party is to be substituted for a party who was named in the claim form in mistake for the new party; […]
(Emphasis added.)
The judge considered the authorities in respect of these provisions, and condensed their principles as follows:
- Under both CPR 17.4 and CPR 19.5, the “mistake” referred to must be as to name not identity of the party.
- If a party is to rely on a description in order to save a misdescribed party, the description should be sufficiently specific to allow the party to be identified. Therefore, a proposed amendment is likely to be successful when a party sues in a specific capacity (for example, landlord, tenant, and so on).
- The “true identity” must be clear to the counterparty under CPR 17.4(3) as it is a stated requirement in this rule that the mistake would not have caused reasonable doubt as to the identity of the party. Notably this is not a requirement in CPR 19.5, but the judge found that it may be relevant to how the court exercises its discretion and could still be a significant deciding factor.
Takeaway points for practitioners
The principal takeaway is that any addition of a claimant before service requires the permission of the court; CPR 17.1 will not avail a claimant in this regard. This will be the case whether a relevant limitation period potentially has expired, as in this case, or not, albeit the implications will be more acute where additional claimants may be out of time to bring proceedings.
The judgment also highlights numerous other key considerations, including:
- The importance of investigating claims in full before issue of the claim form and ensuring that it accurately identifies the parties, in particular when a limitation period expiry is looming. The scramble to issue in this case left the claimants and their legal representatives with an uphill task, which was compounded by the number and nature of the claimants involved.
- In the event that a defendant wishes to challenge an amendment to a statement of case made without permission under CPR 17.1, the 14-day deadline specified in CPR 17.2 must be observed. While obiter, the court’s conclusion on this point was clear in ruling out the use of CPR 3.4(2) (which contains the court’s power to strike out a statement of case in part or whole) to side-step the time limit.
- Where a claimant is being added, ensure that written consent signed by the new claimant is filed with the court in accordance with CPR 19.4(4). Authority casts doubt that this can be signed by the solicitor on behalf of the new claimant.
