John Clark v Gerry Adams
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 19 January 2024 |
| Neutral Citation | [2024] EWHC 62 (KB) |
| Year | 2024 |
| Court | King's Bench Division |
| Docket Number | Case No: KB-2022-004780 |
[2024] EWHC 62 (KB)
Mr Justice Soole
Case No: KB-2022-004780
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Anne Studd KC (instructed by McCue Jury & Partners LLP) for the Claimants
Richard Hermer KC and Edward Craven (instructed by Howe & Co) for the First Defendant
Hearing date: 21 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday 19 th January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The three Claimants in this action respectively suffered injuries as a result of bombing incidents, attributed to the Provisional Irish Republican Army (PIRA), at the Old Bailey in March 1973, London Docklands in February 1996 and the Arndale Centre Manchester in June 1996. By this action, commenced on 9 May 2022, they claim damages limited to ‘ £1 for vindicatory purposes’ against Mr Gerry Adams (as First Defendant) and the PIRA (as Second Defendant). The Claimants allege that Mr Adams, a former President of Sinn Fein, was a leading member of the PIRA at all material times, including membership of its Army Council. Mr Adams denies any such membership or role.
This action was commenced shortly before the coming into force (17 May 2022) of the relevant provisions of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 whereby a ‘ relevant Troubles-related civil action’ may not be brought. An action falls within that description if it is (a) to determine a claim arising out of conduct forming part of the Troubles and (b) founded on tort, delict or fatal accidents legislation: s.43.
The claim is brought against Mr Adams both personally and in a representative capacity. The Amended Claim Form (ACF) describes that representative capacity as ‘ representing the [PIRA] &/or the PIRA Army Council &/or leaders &/or members of PIRA’. The Amended Particulars of Claim (APOC) describe that capacity as ‘ …a representative of the Second Defendant both having the same interests in the claim’: para. 36.
The claim is framed in the torts of assault/battery (ACF) and alleges that Mr Adams ‘ …acted together with others in furtherance of a common design to bomb the British mainland’ (APOC para. 37); and ‘ …was directly responsible in his various roles within the Second Defendant organisation and particularly in the Army Council for the decisions made to place bombs on the British mainland in 1973 and 1996’ (para. 38).
The ACF refers to the Claimants' injuries and values the claim at ‘ The nominal value of £1 for vindicatory purposes.’ The APOC provide particulars of injury for each Claimant, together with reference to medical reports on the First and Third Claimants (para. 39); and under the heading ‘ Damages Sought’ state ‘ For the avoidance of doubt in respect of their pain suffering and loss of amenity the Claimants between them claim £1.00 for vindicatory purposes.’: para. 40. The prayer for relief seeks ‘ 1. £1 for vindicatory purposes’ plus statutory interest thereon and costs.
The Claimants and Mr Adams are represented by solicitors and Counsel. The PIRA is unrepresented.
By application notice dated 16 January 2023 Mr Adams applies for orders and declarations that:
(1) the claim against the PIRA is struck out — on the basis that an unincorporated association cannot be sued in its own name;
(2) the claim against him is struck out, insofar as made in a representative (rather than personal) capacity;
(3) the claims do not enjoy ‘QOCS protection’ on costs, because they do not ‘…include a claim for damages…for personal injuries’ within the meaning of CPR 44.13(1)(a);
(4) there be inspection of certain documents mentioned in the APOC. Various documents having now been supplied by the Claimants, this application is not pursued, save as to a consequential application for costs.
This judgment concerns applications (1), (2) and (3).
By Consent Order dated 30 March 2023, time for service of Mr Adams' Defence was extended until 42 days after determination of these applications.
Application (1): The claim against the PIRA
This first application can be taken shortly. The claim proceeds on the basis that the PIRA is an unincorporated association. On behalf of the Claimants Ms Anne Studd KC in oral argument acknowledged the principle that – absent (as here) any relevant statutory exception — an unincorporated association is not a legal entity and thus cannot be made a defendant in its own right to an action: London Association for the Protection of Trade v. Greenlands Ltd. [1916] 2 AC 15; cited in Breslin & ors v. Seamus McKenna & ors [2009] NIQB 50 at [83], a personal injuries action arising from the Omagh town centre bombing in August 1998.
In circumstances where Mr Adams disputes representation of the PIRA, Ms Studd contended that he had no entitlement to make an application for the claim against the PIRA to be struck out. However she accepted that it was open to the Court to take that course of its own motion if it thought appropriate to do so.
Ms Studd submitted that the Court should not take that course. Rather, it should await the process of disclosure. As a result of that exercise the Claimants might obtain information which would (if necessary) enable someone other than Mr Adams to be appointed as representative of the PIRA and its relevant members. This course would incur no additional cost for Mr Adams.
Further such a course would be consistent with that taken in Breslin. In that case ‘The Real Irish Republican Army’ (RIRA), an unincorporated association, was a named defendant. There was no interlocutory application to strike out the claim against the RIRA and the claim proceeded to trial against all the defendants. In his judgment the trial judge (Morgan J) dismissed the claim against the RIRA on the basis of the principle identified in London Association for the Protection of Trade: see Breslin at [83]; see also in the Northern Ireland Court of Appeal (NICA) sub nom Breslin & ors v. McKevitt & ors [2011] NICA 33 at [74(a)]. Ms Studd submitted that this Court should likewise defer its decision pending (at least) the process of disclosure.
I reject this argument. Since an unincorporated association is not a legal entity and therefore cannot be joined as a party in its own right — whether as claimant or defendant — there is no basis for it to remain a party for any purpose. It is irrelevant that in Breslin, for whatever reason, the RIRA remained a defendant until the conclusion of the trial. As the judgment made clear, the claim against that defendant had to fail because of the principle of law. It follows that the claim against the PIRA must be struck out.
Application (2): The representative action
The governing provision is CPR 19.8. As material this provides:
‘ (1) Where more than one person has the same interest in a claim – (a) the claim may be begun; or (b) the court may order that the claim be continued, by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.
(2) The court may direct that a person may not act as a representative.
(3) Any party may apply to the court for an order under paragraph (2).
(4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule – (a) is binding on all persons represented in the claim; but (b) may only be enforced by or against a person who is not a party to the claim with the permission of the court.”
The most relevant recent authorities on the application of this provision are the decisions in Emerald Supplies Ltd v. British Airways plc [2011] Ch. 345; [2010] EWCA Civ 1284 and Lloyd v. Google LLC [2022] AC 1217; [2021] UKSC 50.
In Emerald the claimants purported to bring a representative claim on behalf of all other direct or indirect purchasers of BA's freight services, alleging unlawful price-fixing. The Court of Appeal upheld the judge's decision to strike out the representative claim on the basis that the other parties whom the claimants sought to represent did not have ‘the same interest’ in the claim. In his judgment Mummery LJ (with whom Toulson and Rimer LJJ agreed) stated:
‘ 62. In my judgment, Emerald's case for a representative action, whether as originally pleaded or as proposed to be amended, is fatally flawed. The fundamental requirement for a representative action is that those represented in the action have “the same interest” in it. At all stages of the proceedings, and not just at the date of judgment at the end, it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons by virtue of having “the same interest” as Emerald.
63. This does not mean that the membership of the group must remain constant and closed throughout. It may indeed fluctuate. It does not have to be possible to compile a complete list when the litigation begins as to who is in the class or group represented. The problem in this case is not with changing membership. It is a prior question how to determine whether or not a person is a member of the represented class at all. Judgment in the action for a declaration would have to be obtained before it could be said of any person that they would qualify someone entitled to damages against BA. The proceedings could not accurately be described or regarded as a representative action until the question of liability had been tried and a judgment on liability given. It defies logic and common sense to treat as representative action, if the issue of liability to...
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