Introduction

On 10 February 2022, the Divisional Court (Dingemans LJ and Picken J) in Rawet v Daimler AG[1] (“Rawet”) handed down a significant decision in relation to the requirements for pre-service amendments.

The decision arose in prospective group litigation proceedings concerning unlawful emissions from Mercedes vehicles. The main question for the Divisional Court was whether CPR 17.1 allowed for the addition of claimants to a claim form prior to service. Prior to the controversial decision of Mann J in the High Court in Various Claimants v G4S plc[2] (“G4S”), the general understanding amongst practitioners was that this was permissible.

The orthodox position was that the key distinction was between pre-service and post-service amendments, with the latter engaging additional requirements in CPR 19.4 to apply for and obtain the Court’s permission to “remove, add or substitute a party”. This is subject to the special provisions, after the end of a relevant limitation period, about adding or substituting parties in CPR 19.5 and adding or substituting claims in CPR 17.4.

The Divisional Court in Rawet refused to follow the decision in G4S that permission was required in the pre-service context, concluding that CPR 17.1 does allow additional claimants to be added to a claim form prior to service. Further, it held that CPR 19.4(4) did not apply at the pre-service stage.  

While procedural in nature, this decision significantly simplifies and streamlines the procedure for adding and correcting parties’ names in claim forms prior to service. This is particularly useful in group actions, but also in a range of other commercial and civil proceedings (including civil fraud and asset recovery actions) where there may be a degree of evolution prior to service and ongoing investigations which may alter the list of appropriate claimants.

Factual background

In Rawet, the original claimants were individuals and businesses who had purchased, leased or otherwise acquired a Mercedes vehicle. Each alleged that their vehicle contained one or more unlawful defeat devices prohibited by EC Regulation 715/2007. The defendant companies manufactured and sold Mercedes vehicles in the UK and elsewhere. Most of the models which are the subject of the claims were subject to mandatory or voluntary recall.

Leigh Day, acting for the Rawet claimants, is working in collaboration with several other law firms, all acting for a proposed steering committee (“Steering Committee”) set up to ensure coordination and cooperation prior to a group litigation order for management of the claims.

The practical issue faced by the claimants in the Rawet proceedings (and other group claims), and in particular their legal representatives, is that both changes to the number of claimants and errors in identification occurred and were likely to continue to occur prior to the making of a formal group litigation order. This is common in litigation of this kind.

The defendants maintained that G4S represented the law both on CPR 17.1 and 19.4(4), but did not strenuously seek to defend G4S or argue that the Divisional Court should not look at the matter afresh. This is addressed particularly in Dingemans LJ’s judgment at [61].

The claimants in the Rawet proceedings resurrected many of the submissions (unsuccessfully) made to Mann J concerning the overall structure of CPR Part 17 and Part 19, and also as to the practical implications of a restrictive approach to CPR 17.1. These include incremental costs each time a claim form is issued, in particular in issue fees, which could become a substantial barrier to access to justice. The evidence before the Court was that the Steering Committee had issued more than 41 claim forms at a cost of over £430,000 in issue fees alone.

The Court’s reasoning

The main judgment of the Divisional Court was given by Picken J. Dingemans LJ gave a short concurring judgment, focussing mainly on the propriety of not following G4S given the Divisional Court, though composed of two judges, also sits at first instance in the High Court. 

Picken J considered in detail the judgment of Mann J in G4S and the submissions made to him as to the application of CPR 17.1 and 19.4(4) respectively.

(a) CPR 17.1

In relation to this principal issue, Picken J at [36]–[38] considered that:

1. CPR 17.1(1) must be read alongside CPR 19.4(1). He stressed the words “the claim form has not been served” in CPR 19.4(1) as reflecting a clear carve-out.
2. It is therefore clear that there is a distinction between “the pre-service stage and the post-service stage”. In short, “CPR 17.1(1) applies to the former whilst CPR 19.4(1) applies to the latter.”
3. The two rules, taken together, provide “a complete regime for adding parties which applies both pre- and post-service, albeit with modifications to reflect the fact that pre-service a defendant has yet to be served and so to be called upon to do anything in relation to the proceedings.”
4. It was “unlikely that there should be a more restrictive ability to amend at the pre-service stage than at the post-service stage.” Picken J went as far as suggesting that, if anything, “it might be expected that the ability to amend [pre-service] should be greater than at the post-service stage” given the defendant would not have been formally troubled with the claim. In any event, he was certain that the rules should not be more restrictive pre-service.

Picken J at [39]–[40] also stressed the parallels between CPR 17.1 and CPR 19.4(1) and 19.4(4) referring to removal, addition or substitution of a party.

There is also an interesting discussion of the relevance of the words “his statement of case” in CPR 17.1(1). These words had assumed considerable importance in Mann J’s judgment in G4S. Picken J’s ultimate conclusion on this point was that CPR 17.1(1) permits an existing party to amend “his statement of case” in order to introduce an additional claimant. This was supported on the basis that:

1. “where solicitors are acting on behalf of a steering group in group litigation and so, in effect, on behalf of both existing and proposed claimants, it is open to the Court to proceed on the basis that, in truth, the amendments are being effected, at least in part, by existing claimants.” ([43])
2. The words “statement of case” are to a document (which can readily extend to a claim form) and are not a reference to the claim or claims contained in that document ([45]).

(b) CPR 19.4(4)

This ancillary point was dealt with more briefly at [49]–[57]. The key points that emerge from Picken J’s analysis are that:

1. Contrary to G4S, it was not necessary for the proposed additional claimants to give written consent to their being added as claimants to the proceedings at the pre-service stage. Principally because CPR 19.4(4) is “expressly concerned with the post-service stage and the need to make an application to the Court in order to effect an amendment.” It was said the “carve-out in respect of the pre-service stage could not be clearer.” ([52])
2. However, where CPR 19.4(4) does apply (i.e. post-service), Mann J in G4S at [114] was correct to conclude that CPR 19.4(4) and Practice Direction 19A require that a separate document be filed for the purpose of expressing consent. As such, Picken J rejected the claimants’ alternative argument that the requirement in CPR 19.4(4) is satisfied by the signature of the additional party’s legal representative on the amended claim form. The point was academic on the facts though ([57]).

Concluding remarks

The Divisional Court’s decision will be welcomed by claimants in particular, and indeed all practitioners as far as simplicity in procedure is concerned. The return to orthodoxy by refusing to follow G4S does not just mean a return to a more flexible and user-friendly procedure, but also facilitates savings in court fees.

The utility of this procedure extends beyond the confines of group litigation. As noted above, where one is dealing with complex investigations (as is the norm in civil fraud and asset recovery proceedings), it is not uncommon for the identity of claimants (and indeed causes of action) to evolve. Of course other requirements in the CPR in relation to the position after the expiry of a relevant limitation period continue to apply, but the interpretation of CPR 17.1 (and CPR 19.4(4)) in Rawet will apply to proceedings which are pre-service and prior to the expiry of a relevant limitation period. This is subject to the likely proviso that the additional claimant would presumably have to be pursuing substantially the same claim (in the non-technical sense) or acting in close co-operation with the existing claimant(s) akin to group litigation. The analysis of Picken J at [43] was strictly limited to the group litigation context.

Overall, Rawet marks an important return to orthodoxy in pre-service cases.

[1] [2022] EWHC 235 (QB).

[2] [2021] EWHC 524 (Ch); [2021] 4 WLR 46.