The Dekagram: 7th August 2023

Attentive readers will recall Max Melsa’s recent article on the decision in Abbott v Ministry of Defence [2023] EWHC 1475 (KB) relating to group actions (The Dekagram: 26th June 2023 – Deka Chambers – Barristers’ Chambers). Barely had we had a chance to digest the judgment when another similar case came along, and with a similar result, cementing the decision as being the courts’ Final Word on the topic, as least for the foreseeable future.

Abbott v Ministry of Defence Revisited: Morris v Williams & Co Solicitors

In Morris v Williams & Co Solicitors [2023] 7 WLUK 444 the court was presented with 134 claimants who had been represented by the defendant solicitors in nine failed property investment schemes. The completion of the lease agreements in which they invested was contingent on the selling companies acquiring title to the development sites, but they never did so, and the investors were left with worthless lease agreements and in some cases worthless guarantees from other group companies. The investors all issued a single claim form against the solicitors alleging that they had failed to identify or advise them on the risks of the structure adopted, which bravely involved the investors paying the entire consideration without receiving worthwhile security or enforceable obligations ensuring that their money would be used to fund development works.

The claimants submitted that there were sufficient common issues for the claims to be case managed together with the usual selection of lead cases and common issues, which would save costs and increase the chances of settlement. They further submitted that the court should follow the very recent decision in Abbott v Ministry of Defence [2023] EWHC 1475 (KB), which suggested that including so many claimants on a claim form was not abusive. The defendant argued that there was insufficient commonality between the claims and that they should have been issued separately, and applied to strike out the claim form as an abuse of process.

Perhaps predictably, following the judgment on appeal in Abbott, the defendant’s application failed. Judge Milwyn Jarman KC observed that the purpose of proceeding by way of lead cases and common issues was that decisions on the common issues would be binding on all the claimants and decisions made on individual issues in lead claims would provide as much guidance as possible for as many of the other claims as possible (and cf McClean v Thornhill [2019] EWHC 3514 (Ch), [2019] 12 WLUK 16 in this regard). Even if it turned out that a common issue had to be determined on a case-by-case basis that did not undermine the utility of the process. Claims against negligent solicitors had been case managed together in Various Claimants v Giambrone & Law [2017] EWCA Civ 1193, and this provided a precedent for how such cases could be managed proportionately. Once a defence had been served and pleadings had closed, the parties could if necessary return to court for directions as to common issues and lead cases, but in the meantime the court was satisfied that there was sufficient commonality to mean that the claims could conveniently be disposed of in the same proceedings within CPR Part 7.3; the retainers were in the same form, the documentation on which the defendant had advised was standard form, and the advice it gave was materially the same and was alleged to disclose several common breaches of duty. Although there were individual issues, that did not detract from the convenience of proceeding under one claim form so that decisions on common issues were binding on all claimants and decisions on individual issues were persuasive.

Comment

The decisions in Abbott and Morris may strike some travel practitioners as surprising. Not that the results are unexpected – far from it; but anyone involved in holiday litigation will be all too well aware that the courts have been grappling with large group food poisoning and norovirus claims for many many years. The selection of lead claimants and the determination of lists of common issues are wholly familiar to all who work in this sphere, and it seems not to have occurred to defendants to challenge the approach taken historically, namely to issue large groups and to share selection of lead names and lists of issues at an early stage so as to deal with the litigation proportionately and efficiently. Rightly so, as it turns out; in both Abbott and Morris the High Court judges were unimpressed with the prospect of numerous claim forms having to be issued and then case managed separately, and this is hardly surprising given the additional cost and court time that would be involved in doing so. Very much business as usual, then, for holiday sickness claims.

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023.