Group action

Taylor v Nugent Care Society CA TLR 28 January

In 1997, a group litigation order was made in relation to claimants alleging sexual abuse suffered in the 1970s while at a children’s home run by the defendant. Directions were subsequently given providing a cut-off date of 31 May 1999 for claimants to join the group action. The claimant commenced his own proceedings in December 2001. He sought permission to join the group action, which was refused. The defendant then applied to have his action struck out. The judge in striking out the action said that he could find no way of preserving the integrity of the group action and allowing the claimant’s individual claim to proceed. He pointed out that claimants who were part of the group action who had not complied with the court’s directions had had their claims struck out. On appeal, the Court of Appeal said that it was essential that the court should have very wide powers to manage litigation involving a substantial number of claimants, both in the interest of the litigants and the court. Such powers enabled the courts to deal with the litigation in a more efficient and economical manner than would otherwise be possible. It was therefore of the greatest importance that where there was a group litigation order, courts should support that decision in the appropriate way. No doubt if a claimant who was part of a group action had not complied with the court’s directions and had their claim struck out, then commenced an individual action, it would be struck out as an abuse of process. CPR Part 19 contains no provision enabling the court to make an order requiring a claimant to join a group action. A claimant was perfectly entitled to decide to bring an individual action. However, such a claimant was still subject to the management powers of the court which was fully entitled to manage the individual claimant’s proceedings in a way that took account of the position of those who had joined the group action. Those litigants, whether claimants or defendants, were entitled to have their interests given a higher priority than a claimant who did not join the group action, because they were likely to be a numerically large group and they were cooperating with the proper management of the proceedings. It was possible for the court to take steps which would fairly protect the defendant’s position. In particular, the court could stay the claimants’ action until completion of the group action or part of it. The court also had wide powers in respect of costs. It could order that in the event that a costs order was made against the defendant, the defendant would not have to pay additional costs to those it would have had to pay if the claimant had been part of the group action. In view of the steps available to the court to protect the defendant, it was disproportionate to have dismissed the claimant’s claim and the appeal was allowed.