A U-turn on the addition of parties to the claim form after issue but prior to service

A recent decision in the High Court has departed from the decision in Various Claimants v G4S plc [2021] EWHC 524 (Ch) in respect of amendments to a claim form post-issue but prior to service. The High Court held that Mann J had adopted too restrictive an approach in that case (discussed in a previous LawNow) and that the Civil Procedure Rules (CPR) did permit the addition of parties to the claim form without the need for consent post-issue but prior to service.

A recap on Various Claimants v G4S plc [2021] EWHC 524

In this earlier case, the claim was brought on the last day of the limitation period. Prior to being served, it was then amended on six separate occasions to add or remove claimants. The court struck out the claims for the additional claimants on the basis that CPR 17.1 did not permit new claimants to be added to an issued claim form before service. This was on the basis that an amendment to plead another claimant’s entirely separate case was not an amendment by the existing party of "his statement of case" and so was not allowed under CPR 17.1.

In an obiter comment, the court said that a claim form signed by a solicitor could not stand as consent to be added to proceedings for the purposes of CPR 19.4(4), which deals with the requirement for a party to consent to being added, removed or substituted. Rather, consent had to be in a separate document, which had to be filed before the new claimant could be added. The court also indicated that CPR 19.4(4) applied both before and after service, even though other paragraphs of CPR 19 specifically addressed amendments made after service.

Permission to appeal was granted, but the appeal did not proceed.

The new decision in Rawet & Ors v Daimler AG & Ors [2022] EWHC 235 (QB)

The claimants said that the fact that an appeal had not proceeded in G4S meant that the legal position had been left in a state of uncertainty. The claimants therefore invited the court to find that it was wrongly decided in respect of both CPR 17.1 and 19.4.

The High Court held that two claimants were properly added to the proceedings by an amendment to the claim form post-issue, but prior to service. In reaching this decision, CPR 17.1. and 19.4 were considered:

• CPR 17.1(1) states that a party may amend his statement of case at any time before it has been served on any other party. A claim form constitutes a statement of case (CPR 2.3(1)).

• CPR 17.1(2) says that once served, a party may only amend a statement of case with the written consent of all parties or with the permission of the court.

• CPR 17.1(3) goes on to say that if a statement of case has been served, an application to amend it by removing, adding, or substituting a party must be made in accordance with rule 19.4.

• 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.

Prior to the G4S decision, therefore, the distinction between the pre-service stage and the post-service stage was considered clear, with CPR 17.1(1) applying to the former and CPR 19.4 (1) to the latter. The court in Rawet reverted to this approach.

Picken J commented that Mann J in G4S had taken an overly restrictive approach to CPR 17.1(1). The fact that CPR 17.1(3) specifically referred to amending a statement of case by “removing, adding or substituting a party” in accordance with CPR 19.4 (at the post-service stage) reinforced the view that CPR 17.1(1) ought not to be read in such a restrictive manner; the position pre-service should not be more restrictive than the position post-service.

Picken J discussed the significance of CPR 19.4(1), noting that CPR 19.4(2) made it clear that an application for permission under CPR 19.4(1) could be made by either an “existing party” or “a person who wishes to become a party”. This was a useful indication that the reference in CPR 17.1(1) to a party making an amendment was to be regarded as a reference to either an existing party or a person who wishes to become a party. Whilst there was a difficulty with this in that someone who wishes to become a party does not have a statement of case to amend, Picken J did not need to reach a conclusion on this point, as it was irrelevant to the facts in question. He was satisfied that CPR 17.1(1) permitted an existing party to amend "his statement of case" to introduce an additional claimant. He went on to say that to require claimants in group litigation to issue separate proceedings every time additional claimants were sought to be added would involve a disproportionate approach to costs and potentially represent a denial of access to justice.

Picken J agreed with Mann J that a solicitor’s signature of a claim form cannot count as a consent in accordance with CPR 19.4(4). However, the absence of separate written consent was immaterial to the issues in question, given his conclusion that CPR 19.4 did not apply to the pre-service stage.

Comment

The approach taken in G4S, and now rejected in Rawet, seems to have arisen due to the reference in CPR 17.1(1) to a “party” being permitted to amend “his statement of case”. Taking a narrow approach to this phrasing resulted in a perceived inconsistency when the party to be added is an additional claimant, who by definition is not yet a party and therefore does not have a statement of case to amend. However, it has now been made clarified that in those circumstances, CPR17.1(1) can be read as envisaging the current claimant to amend “his statement of case” by adding another claimant.

The judgment confirms that claimants are free to make amendments to a claim form prior to service, including the addition of parties (be they claimants or defendants). After service, the permission of the court is required, and the party’s written consent must be filed. It is also important to bear in mind that neither CPR 17 nor CPR19 can override the usual provisions of the Limitation Act 1980, which only allows the addition of new claims after they have become time-barred in very limited circumstances. It therefore continues to be of great importance to identify and include all parties on the claim form prior to proceedings being issued if at all possible.