Representative Procedures and the Future of Multi‐Party Actions

Date01 July 1999
Published date01 July 1999
Representative Procedures and the Future of Multi-Party
Jillaine Seymour*
The Consultation Paper Access to Justice – Multi-Party Situations: Proposed New
Procedures produced by the Working Party set up by the Lord Chancellor’s
Department continues the interest in the potential for multi-party procedures to
alleviate concerns about access to justice. It anticipates that it is possible to devise
a procedure which will serve two primary purposes. The first is to enable recovery
where large numbers of people have been affected by another’s conduct and the
individual losses are so small that individual actions would be economically
unviable. The second is to promote more efficient use of court resources –
resolving common issues in a single proceeding will prevent re-litigation of the
same points. The latter objective also serves the goal of consistency in judicial
decisions. The Consultation Paper proposes that any new procedure will balance
the normal rights of claimants and defendants and the interests of a group in
pursuing litigation as a whole.1In proposing a new procedure to achieve these
worthy ends, the Consultation Paper does not refer to the representative procedure
which was found in the Rules of the Supreme Court2and, it is assumed, takes the
view that it was not suitable for managing group litigation. It is certainly true that
that rule is generally perceived to be of limited utility.3However, the procedures
proposed in the Consultation Paper have not, as yet, been incorporated into the new
Civil Proceedings Rules, and the representative proceedings rule is retained in
Schedule 1 to the new Civil Proceedings Rules.4This article will suggest some
reasons for the restricted use of the representative proceedings rule, and consider
whether the procedures proposed in the Consultation Paper address the limitations
of the existing rule.
Multi-party procedures are intended to accommodate the situation where there is
more than one person with the same or similar claims, or potential liability. There
are, broadly speaking, two approaches to the multi-party situation. The first
approach relies on each person being a party to an action. The court may add a new
party to the proceedings if it is desirable in order to enable the court to resolve all
the matters in dispute or to resolve an issue involving the new party and an existing
ßThe Modern Law Review Limited 1999 (MLR 62:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
*Trinity College, Oxford.
1Access to Justice – Multi-Party Situations: Proposed New Procedures Lord Chancellor’s Department
(1997) 4–5 (hereafter the Consultation paper). The normal rights of claimants and defendants are
those procedures available where a case is pursued or defended as an individual.
2 Rules of the Supreme Court (RSC), O15 r12 (hereafter the ‘representative proceedings rule’). The
corresponding rules in most other common law jurisdictions are substantially the same as O15 r12.
3 See eg J.H. Jacob, The Fabric of English Civil Procedure (London: Stevens & Sons, 1987) 81–82.
Indeed the Consultation Paper opens with the statement that the English legal system ‘has no
established procedures for managing group litigation’, see n 1 above, 3 para 1.
4 See Part 50 (Application of the Schedules) of the Civil Proceedings Rules (CPR) and Schedule 1, O15
r12. The corresponding rule in the County Court Rules is preserved in Schedule 2. The Draft Civil
Proceedings Rules (DCPR) included a provision similar to O15 r12 in Draft Rule 20.1–3.
party connected to the matters in dispute.5Another approach is for the court to
order that the matters be consolidated, or that they be tried at the same time or one
immediately after the other, or that one or more should be stayed until another (the
test or lead case) is determined.6Where a number of parties have been joined in the
same action, any decision is binding on all parties joined. A decision in a test case
is not binding on other actions, although obviously it will be influential and the
court may strike out as an abuse of process any claim which seeks to re-litigate a
point determined in a lead or test case.7
The second approach seeks to promote efficiency and consistency without
making all claimants, or all defendants, parties to any proceedings.8This approach
depends on a decision that the party before the court is sufficiently representative
of a larger group that decision in the action can bind all others who fall within the
group. Provision is made for a party to an action to represent others who are not
parties, in a number of situations. Trustees may represent those with a beneficial
interest in the trust or estate and, where proceedings concern the estate of a
deceased person, property subject to a trust or the construction of a written
instrument, the court may appoint a person to represent any person or class of
persons interested in or affected by the proceedings.9The representative
proceedings rule is more general than these other provisions enabling
representation in the sense that it does not limit representation to a particular
category of person, such as a trustee, or to particular types of action, such as those
concerning the estate of a deceased person. The representative proceedings rule
makes provision for one party to represent all others who have ‘the same interest’
in the proceedings. It is the utility of such a general representative procedure which
is of particular interest here.
This article analyses the judicial interpretation of the representative
proceedings rule. The term ‘same interest’ has no obvious necessary meaning
and is dependent on judicial interpretation, which will be given extended
consideration here. It is argued that while apparently available to all actions, use
of the representative proceedings rule is limited by the dominant interpretation
of the requirement that those represented have the same interest in the action.
Almost all claims seeking to enforce individual private rights are necessarily
defeated by this dominant interpretation of ‘same interest’. Those claims which
5 Civil Proceedings Rule, Part 19.1. The earlier rule, found in RSC O15 r4, permitted joinder, either
as plaintiff or defendant, where the right to relief claimed arose out of the same transaction or
series of transactions and separate actions would have given rise to common questions of fact or
law, or with the leave of the court. Where the remedy claimed is one to which others are jointly
entitled, all persons jointly entitled must be parties, see CPR Part 19.2 and previously, the RSC
O15 r4(2).
6 The terms ‘lead case’ and ‘test case’ seem to be used interchangeably to describe the selection of one
particular case from a large number of plaintiffs joined in a single claim to enable the court to decide
common issues, see N. Andrews, Principles of Civil Procedure (London: Sweet & Maxwell, 1994)
154. For res judicata effect of resort to the test or lead case approach, see ibid 151. For court’s case
management powers, see CPR Rule 3.1(2) (and see previously RSC O4 r9(1)).
7 The Consultation Paper proposes that the new procedure could include powers enabling courts to
direct that a decision in a test case is binding on other actions: n 1 above, 11 para 27.
8 That is, without, for example, the claimants all being joined in one action, or each bringing their own
independent actions which are then consolidated or stayed until the trial of a selected test case.
9 See CPR Sched 1, O15 r14 and O15 r13. O15 r13(2) sets out the conditions for the exercise of the
latter power which turn on the difficulty or expense in the circumstances of ascertaining or locating
the persons to be represented. See also O15 r13A which provides for notice to be served on non-
parties. There is also provision for the court to appoint a person to represent not a group but another,
see CPR Sched 1, O15 r15 (representation of the interests of a deceased person who does not have a
personal representative) and CPR Sched 1, O15 r12A (derivative claims, representation of a company
by one or more shareholders).
July 1999] Representative Procedures
ßThe Modern Law Review Limited 1999 565

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