Stuart Angel and 1379 Others v Black Horse Ltd

Hearing dates: 19 th & 20 th February 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 10.00am on Tuesday 4 th March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The appeal

This appeal relates to omnibus claim forms, not GLOs. It relates to case management for multi-party litigation concerning the same or similar subject matter. By “omnibus claim form”, I mean a single claim form issued by many claimants.

I should say at the start that these claims have been stalled in procedural wrangles for over 2 years. Many of the issues arose out of guesswork because no Defendant pleading has been served. I raise the suggestion here that r.7.3 and r.19.1 issues might better be decided after a generic particulars of claim and a generic defence is served and limited disclosure of key documents is provided. In these claims those would be the consumer credit agreements and the brokerage agreements between lenders and dealers/brokers and accompanying leaflets.

Eight claim forms were issued which, by schedules of names, covered over 5,800 Claimants bringing claims against 8 motor finance companies. In every claim the Claimants assert that each Defendant arranged in advance for a broker determined variable commission to be paid to brokers or dealers under circumstances which were undisclosed and unfair within the meaning of S.140A of the Consumer Credit Act 1974 (CCA).

This is an appeal from the case management decisions of HHJ Worster (the Judge), made at Birmingham County Court, which he explained in a judgment dated 8.9.2023 and later in another judgment dated 10 November 2023. On 24.11.2023 the Judge ordered that each Claimant must issue a separate claim form (3 months after the date of determination of this appeal) or they would be struck out, and made consequential directions and costs orders. The Judge had already given the Claimants permission to appeal a month earlier, on 11.10.2023. By notices of appeal dated 30.10.2023 the Appellants seek, in 4 grounds, to overturn the decisions to sever the claims and the directions made consequent thereto.

The Court was provided with an appeal bundle, an authorities bundle, a second authorities bundle the day before the hearing and skeleton arguments, then two further authorities near the end of submissions. There was no evidence in the appeal bundle, so the appeal was based on legal argument. The case management decisions were based on evidence in witness statements and legal argument.

The issue – severance or continuing joinder at this stage

The Claimants/Appellants submit that all claims can and should conveniently be disposed of in the same proceedings under the 8 omnibus claim forms and the Judge was wrong to sever them at this stage. The Defendants/Respondents submit that the claims cannot be conveniently disposed of in the same proceedings and the Judge was right to sever them.

The CPR

The relevant Civil Procedure Rules (CPR) are rs.1.1 (the overriding objective), and rs.7.3 and 19.1 (multi-party claim forms). I set the last two out here, right at the start:

CPR r.7.3 provides:

“ Right to use one claim form to start two or more claims

7.3 A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.”

CPR Part 19 deals with group litigation orders (GLOs) and omnibus claim forms, along with PD19B. The main parts relating to GLOs are set out in rules 19.r.21–26 and are summarised by the Master of the Rolls in Morris (cited below) between paras. 21 and 28. In relation to omnibus claim forms, r.19.1 provides:

“ Parties – general

19.1 Any number of claimants or defendants may be joined as parties to a claim.”

Appeals — CPR r. 52

Review of the decision

Under CPR r. 52.21 every appeal is a review of the decision of the lower Court unless the Court decides otherwise (or a Regulation or Act provides that it is a rehearing) and will only be granted if the decision below was wrong or unjust due to a serious procedural or other irregularity.

If the appeal is granted this Court has wide powers to set aside the decision below or substitute a fresh decision.

Appeals against case management decisions

Appeals from case management decisions have a high threshold test. In Mitchell v News Group Newspapers Ltd [2013] EWCA Civ. 1537, at [52] the Master of the Rolls said:

“We start by reiterating a point that has been made before, namely that this Court will not lightly interfere with a case management decision. In Mannion v Ginty [2012] EWCA Civ. 1667 at [18] Lewison LJ said: “it has been said more than once in this Court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.”

In Clearway Drainage Systems Ltd v Miles Smith Ltd [2016] EWCA Civ. 1258, the test in considering an appeal against a decision of this nature was neatly encapsulated by Sir Terence Etherton MR at paragraph 68:

“… The fact that different judges might have given different weight to the various factors does not make the decision one which can be overturned. There must be something in the nature of an error of principle or something wholly omitted or wrongly taken into account or a balancing of factors which is obviously untenable.”

In Royal & Sun v T & N [2002] EWCA Civ. 1964, Chadwick LJ enunciated the first deferential principle thus:

“37. … these are appeals from case management decisions made in the exercise of his discretion by a judge who, because of his involvement in the case over time, had an accumulated knowledge of the background and the issues which this Court would be unable to match. The judge was in the best position to reach conclusions as to the future course of the proceedings. An appellate Court should respect the judge's decisions. It should not yield to the temptation to “second guess” the judge in a matter peculiarly within his province. 38. I accept, without reservation, that this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”

I take into account the authorities relied on by the Respondents: Assicurazioni v Arab Insurance [2002] EWCA Civ. 1642 at para. 9 and Abdulle v Commissions of Police [2016] 1 WLR 898, at para. 28, but neither expressed the principles better than the above authorities.

Chronology of the action

In November 2022 the 8 claim forms were issued by the same firm of lawyers (Barings). The claims were grouped together by Defendant. They all had the same wording. The Claimants sought to reclaim the sums paid over to the Defendants under S.140B(1)(a) of the CCA because they alleged that the Defendants or their dealers or credit brokers had failed to disclose commissions before the Claimants entered consumer credit finance contracts. 8 sets of generic Particulars of Claim (POC) were later served. They are not exactly the same but are similar. All were drafted by the same barrister. Some have 42 paras, others 27, 28 or 38. The POC in Angel are a useful place to start. In broad summary Mr Angel asserted that he went to a car dealership to a buy car, wanted credit to assist his purchase, was referred to a credit broker to arrange the finance (or the dealer arranged it), then entered the offered credit agreement, receiving a loan at an interest rate. Prior to...