Adam Rawet and Others v Daimler AG
Jurisdiction | England & Wales |
Judge | Lord Justice Dingemans,Mr Justice Picken |
Judgment Date | 10 February 2022 |
Neutral Citation | [2022] EWHC 235 (QB) |
Docket Number | Case No: QB-2021-003567 |
Court | Queen's Bench Division |
[2022] EWHC 235 (QB)
Lord Justice Dingemans
VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION
and
Mr Justice Picken
Case No: QB-2021-003567
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Patrick Green QC and Ognjen Miletic (instructed by Leigh Day) for the Claimants.
Helen Davies QC (instructed by Herbert Smith Freehills LLP) for the Defendants (for part of the hearing only).
Hearing date: 12 January 2022.
Approved Judgment
We direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case raises two short but important points concerning the ability to be added as a claimant to proceedings prior to service.
These arise in the context of applications for certain declaratory relief which, although widely couched at the outset, had reduced in scope by the end of the hearing before us so as to entail the Court being asked to make a declaration that two individuals, Mr Romans Kocegarovs and Mr Mohamed Mussajlbal were properly added as Claimants to these proceedings, pursuant to CPR 17.1(1), by an amendment to a claim form effected on 22 September 2021 (i) without the written consent of the other parties and without permission of the Court, and (ii) without also Mr Kocegarovs and Mr Mussajlbal being required by CPR 19.4(4) to give written consent to their being added as claimants to the proceedings.
As will appear and for reasons which I will give in what follows, I am satisfied that it is appropriate to make the declaration in substantially the terms sought.
CPR 17 and 19.4
It is convenient at the outset to set out the relevant provisions of the CPR, starting with CPR 17.1 itself. Under the heading “Amendments to statements of case”, this provides at CPR 17.1(1) as follows:
“A party may amend his statement of case at any time before it has been served on any other party.”
It is clear that the definition of “statement of case” includes a claim form: see CPR 2.3(1).
CPR 17.1(1) is followed by CPR 17.1(2) and (3):
“(2) If his statement of case has been served, a party may amend it only –
(a) with the written consent of all the other parties; or
(b) with the permission of the court.
(3) 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.”
There is, then, this wording at the end of CPR 17.1:
“(Part 22 requires amendments to a statement of case to be verified by a statement of truth unless the court orders otherwise).”
CPR 17.2 deals with the Court's power to disallow amendments made without permission in these terms:
“(1) If a party has amended his statement of case where permission of the court was not required, the court may disallow the amendment.
(2) A party may apply to the court for an order under paragraph (1) within 14 days of service of a copy of the amended statement of case on him.”
CPR 17.3 ( “Amendments to statements of case with the permission of the court”) is then in the following terms:
“(1) Where the court gives permission for a party to amend his statement of case, it may give directions as to –
(a) amendments to be made to any other statement of case; and
(b) service of any amended statement of case.
(2) The power of the court to give permission under this rule is subject to –
(a) rule 19.1 (change of parties – general);
(b) rule 19.4 (special provisions about adding or substituting parties after the end of a relevant limitation period); and
(c) rule 17.4 (amendments of statement of case after the end of a relevant limitation period).”
I refer also to CPR 19.4 ( “Procedure for adding and substituting parties”) which states as follows:
“(1) The court's permission is required to remove, add or substitute a party, unless the claim form has not been served.
(2) An application for permission under paragraph (1) may be made by –
(a) an existing party; or
(b) a person who wishes to become a party.
(3) An application for an order under rule 19.2(4) (substitution of a new party where existing party's interest or liability has passed) –
(a) may be made without notice; and
(b) must be supported by evidence.
(4) 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. …
(5) An order for the removal, addition or substitution of a party must be served on –
(a) all parties to the proceedings; and
(b) any other person affected by the order.
(6) When the court makes an order for the removal, addition or substitution of a party, it may give consequential directions about –
(a) filing and serving the claim form on any new defendant;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings.”
These are provisions of the CPR which, amongst others, were considered last year in Various Claimants v G4S Plc [2021] EWHC 524 (Ch), [2021] 4 WLR 46. In that case, as I explain in more detail later, Mann J decided, first, that CPR 17.1 does not permit amendment of a claim form to add other claimants to the proceedings between the issue and service of the claim form since CPR 17.1(1) is available only to an existing claimant and, secondly, that, in any event, CPR 19.4(4) is not satisfied merely by completion of a statement of truth on an amended claim form signed by the solicitor acting for a claimant added by the amendment.
The Claimants, represented by Mr Patrick Green QC and Mr Ognjen Miletic, invite us to conclude that G4S was wrongly decided on both points. In doing so, they explain that, although Mann J granted the claimants in G4S permission to appeal, the appeal did not proceed for other reasons. Hence, they submit, the legal position is in a state of uncertainty. This, they further submit, is causing difficulty in relation to the efficient and proportionate progress not only in relation to the present proceedings but of group actions more generally.
Nature of the present proceedings
As explained in the first witness statement of Ms Bozena Michalowska, this claim is one of a number of related anticipated claims concerning emissions from Mercedes diesel vehicles and alleged breaches of statutory obligations (as well as certain common law claims). Leigh Day, the firm in which she is a partner, is working in collaboration with several other law firms all acting for a proposed steering committee which has been set up with a view to ensuring coordination and cooperation prior to the seeking of a group litigation order for management of the claims.
The (existing) Claimants named in the proceedings are individuals and businesses who each purchased, leased or otherwise acquired a Mercedes vehicle which, they allege, contained one or more unlawful defeat devices prohibited by EC Regulation 715/2007.
The Defendants are companies within the Daimler Group, which manufacture and sell Mercedes vehicles in the UK and elsewhere. Specifically, the First and Third Defendants, Daimler AG and Mercedes-Benz AG, are manufacturers whilst the Second Defendant, Mercedes-Benz Financial Services UK Ltd is a company incorporated in England and Wales which carries on business as the finance and leasing company for the First Defendant in the United Kingdom.
The Mercedes vehicles with which the claims are concerned are mostly models that have been the subject of mandatory recall by Germany's Federal Motor Transport Authority or voluntary service measures initiated by the Daimler Group.
Ms Michalowska goes on to explain that Leigh Day began receiving instructions from clients in relation to the claims in around June 2020. She also points out that the Defendants have agreed that, as an exception to the extension of time agreed generally (between them and the clients of the various law firms acting for the steering committee) for service of claim forms in the proposed group litigation, a claim form could be served only for the purpose of facilitating the making and determination of the declaration sought at the hearing before us, and thereafter stayed for all purposes until 15 October 2021 (in line with the agreement in relation to other claim forms) other than the resolution of the application.
Accordingly, the claim form which is the subject of the application before us was served on 12 October 2021. I am told, however, that there are many other claim forms also in existence which have far larger numbers of claimants, not that this matters for present purposes since we are concerned with certain discrete issues arising out of CPR 17 and CPR 19.
The Defendants' stance in relation to the application
The present application has been the subject of not inconsiderable correspondence between Herbert Smith Freehills LLP and PGMBM, another of the firms of solicitors acting on behalf of the proposed steering group. It is not necessary, in the circumstances, to set out detail of that correspondence. Suffice to say, however, that the Defendants do not oppose the application whilst nonetheless not agreeing to it either.
This was helpfully confirmed by Ms Davies QC when she appeared, at short notice and prompted by a concern on the part of the Court that there should be clarity as to the position being adopted by the Defendants, to explain that, as far as the Defendants are concerned, G4S represents the law both as regards Mann J's conclusions concerning CPR 17.1 and as regards CPR 19.4(4).
The decision in G4S
In G4S...
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