England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE LTA 98/5058/1 5059/1

COURT OF APPEAL (CIVIL DIVISION) 5078/1 5089/1 5090/1

MANCHESTER DISTRICT REGISTRY Royal Courts of Justice

Strand, London WC2

Monday, 15th June 1998

B e f o r e :

LORD JUSTICE NOURSE and

LORD JUSTICE MAY

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A B & OTHERS Plaintiffs/Respondents

-v-

(1) LIVERPOOL CITY COUNCIL

(2) THE NUGENT CARE SOCIETY

(Formerly Catholic Social Services [Liverpool])

(3) TRUSTEES OF THE NATIONAL CHILDREN'S HOME

AND ORPHANAGE REGISTERED

Defendants/Applicants

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Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 421 4040 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR W G BELLIS (instructed by Head of Legal Services Agency, Liverpool City Council) appeared on behalf of the Applicant First Defendant.

MR E FAULKS QC and MR N FEWTRELL (instructed by Messrs Hill Dickinson, Liverpool) appeared on behalf of the Applicant Second Defendant.

MR S GRIME QC (instructed by Messrs Berrymans Lace Mawer, Manchester) appeared on behalf of the Applicant Third Defendant.

THE RESPONDENT PLAINTIFFS were not represented.

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J U D G M E N T

(As Approved by the Court)

Crown Copyright

Monday, 15th June 1998

LORD JUSTICE NOURSE: Lord Justice May will deliver the first judgment.

LORD JUSTICE MAY: These are renewed applications on behalf of the Nugent Care Society, Liverpool City Council and the National Children's Home for leave to appeal against the decision of Mr Justice Forbes on 17th November 1997 in proceedings in the High Court in Manchester, leave having been refused by Lord Justice Judge on paper.

The actions concern sexual and physical abuse alleged to have been suffered by residents at a number of children's homes in the north-west of England. Some of these allegations go back a long time in that some of the plaintiffs were born in the 1950s and are now middle aged. Others were born in the 1970s and in between those dates. The claims came to light and are related to a number of fairly recent criminal prosecutions which have resulted in convictions and, for some individual defendants in those proceedings, long terms of imprisonment. There is a large number of plaintiffs in these proceedings, perhaps about 100 in all, and the proceedings are a species of group action which is being managed by Mr Justice Forbes and Mr Justice Kay in Manchester.

On 31st January 1997 writs were issued naming the plaintiffs simply as "A B and Others". On 30th July 1997 an application was made to strike out the writs as nullities on the basis that the writs had been issued in the names of non-existent plaintiffs. Mr Justice Forbes dismissed this application on the same day. He held that the writs were not nullities but irregular and that the irregularity might possibly be cured by amendment. There was no appeal against that decision.

The applications which he decided on 17th November 1997, and which are the subject of today's applications, were to amend the writs by adding to the title the names of each of the plaintiffs for whom the expression "A B and Others" had originally been used as a pseudonym. The practical effect of the amendments, apart from questions of costs, was to fix the date when the proceedings began for limitation and perhaps other purposes as 31st January 1997, the date of the original writs. Protective additional writs were issued on 4th August 1997, so that it is the seven-month period between those dates which might conceivably matter.

Mr Justice Forbes allowed the amendments. He was asked to assume that for each correctly named plaintiff either the primary period of limitation had expired before the issue of the writ or that the period of limitation expired between 31st January 1997 and 17th November 1997. He held that the application must fail unless it could be brought within the provisions of Ord.20, r.5(3). He held that "A B and Others" was devoid of personality in law and that the applications were seeking to substitute new parties to the proceedings in order to remedy the serious irregularity which resulted from the use of a pseudonym to describe "the group of people upon whose instructions each of the writs in question was issued".

Mr Justice Forbes held that the amendments raised new claims within section 35(2) of the Limitation Act 1980 and that he did not have power to allow the amendments under Ord.2, r.1 or Ord.20, r.5(1). He held, however, that he did have power to grant leave under Ord.20, r.5(3). Ord.20, r.5(3) provides:

"An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue or, as the case may be, intended to be sued."

Ord.20, r.5(2) provides that the court may grant leave under sub-rule (3) after any relevant limitation period has expired if it thinks it is just to do so. Mr Justice Forbes held that there had been a genuine mistake. This is not challenged in this court.

Mr Garsden, the solicitor acting for the plaintiffs, swore a number of affidavits. He said that the writs were issued with the plaintiffs named by pseudonym on purpose to preserve their anonymity in sensitive cases. He said that he had spoken on the telephone to solicitors for all the defendants before he issued the writs asking if they had any objection and that they had said that they did not so long as the names of the plaintiffs were known to them. Mr Garsden said that he also explained that "A B and Others" was a form of title commonly adopted in group actions and that he explained that a register of plaintiffs would be served on them at a later date. He served such a register with the statement of claim on 13th May 1997. He had said that further names would be added as people came forward. There was an issue as to the fact or extent of any agreement reached with the various defendants' solicitors, and Mr Justice Forbes was invited to proceed on the basis that the plaintiffs did not rely on any agreement having been reached. He held, however, that Mr Garsden made a genuine mistake as to the common form in which actions in multiparty proceedings are entitled.

It is notorious that multiparty proceedings can result in severe procedural and administrative difficulty. In my experience, derived in part from having been the judge designated to manage and try the Myodil litigation, which eventually settled before the main hearing, group actions are often for convenience managed under names such as "A B and Others" against named defendants. But that is a title of convenience underlying which are one or more actions with named plaintiffs. In the absence of agreement, which in my experience is never forthcoming, not least because the terms of any such agreement would be difficult to define, every individual plaintiff in a group action must issue proceedings to secure a date for limitation purposes. A number of plaintiffs may be joined in a first writ. Thereafter, if additional plaintiffs are to be added to the group, writs have to be issued for them. Other than by agreement, these additional plaintiffs cannot have the limitation benefit of the date of the first writ, nor will adding them to a register alone secure them any date for limitation purposes. It may well be that once the writ is issued the individual proceedings will be stayed while other things happen, but that does not detract from the need for proceedings at least to be issued for each plaintiff. I acknowledge that this is a relatively expensive requirement but, so far as I am aware, no one has yet devised a means under the present rules for avoiding the expense.

Having decided that Mr Garsden made a genuine mistake, Mr Justice Forbes considered the next questions, that is to say whether the mistake was misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue. Of this Mr Justice Forbes said:

"So far as concerns the second condition, it is not suggested by any of the defendants that Mr Garsden's mistake was misleading in the general sense. There was a considerable body of correspondence about the litigation, which took place between Mr Garsden and the various solicitors acting for the defendants both before and after the issue of the defective writs. From that correspondence, it is clear that the defendants were well aware that Mr Garsden was instructed to issue proceedings on behalf of many young men, who claimed to have suffered sexual abuse whilst resident at one or other of the various homes, and that Mr Garsden had adopted the form of title which he did in order to preserve their anonymity. I am therefore satisfied that the second condition is also met.

I turn to consider the third condition. So far as concerns this condition, I am also satisfied that the mistake was not such as to cause reasonable doubt as to the identity of the persons intending to sue. This is really the crucial question so far as concerns Order 20 Rule 5(3) and the one to which most of the submissions were directed on this aspect of the application.

In my opinion, there was no doubt in the minds of the defendants or their solicitors that the collective identity of those intending to sue was, in each case, that group of people who claimed to have suffered sexual abuse at the home in question during the period in question and upon whose instructions Mr Garsden was to issue and did issue the writs in question on 31st January 1997. In my view the position was very similar to that which existed in the Hibernian Dance Club case, to which I have already referred. In the light of the evidence filed on behalf of the plaintiffs, as to how Mr Garsden has satisfied himself that each proposed list of plaintiffs consists only of those persons pursuant to whose instructions he issued the writs in question on 31st January 1997, I am satisfied that he did have the necessary instructions from those persons to issue each of the writs in question. In those circumstances, having regard also to the correspondence passing between the parties (see in particular that which passed between Nugent's solicitors and Mr Garsden as summarised and cross-referenced in Mr Maxwell's very helpful schedule), I am satisfied that the mistake was not such as to cause reasonable doubt as to the identities of the persons intending to sue and I reject the defendants' submissions to the contrary."

On the question whether it was just to grant leave under sub-rule (3) after a relevant limitation period had expired, Mr Justice Forbes held that it would be unjust to refuse leave. This is not challenged before us.

The application for leave relies on the submission that Mr Justice Forbes was wrong to conclude that the mistake was not misleading or such as to cause any reasonable doubt as to the identity of the party intending to sue.

On behalf of Nugent, it is submitted in Mr Faulks' written skeleton as follows:

"It is accepted that the pre-action correspondence identified a number of potential plaintiffs who might have been expected to bring proceedings against the defendants at some stage. Equally, there were other residents of the homes who might or might not have been in any ´group' at the material time ... and there has been/remains considerable doubt about the precise composition of any such ´group', at the date the proceedings were issued. The learned judge concluded that the plaintiffs were effectively those persons pursuant to whose instructions Mr Garsden had issued writs. Such a test involved accepting the subjective assertions of the plaintiff's solicitor and is not relevant in deciding whether as a matter of objective fact the mistake was not such as to cause reasonable doubt as to the identity of the persons intending to sue."

Of the Hibernian Dance Club case, Mr Faulks says in his written submission:

"The learned judge considered that the facts of the instant case were very similar to [those in] Hibernian Dance Club v Murray , a case referred to him by the defendants. In that case the plaintiff sued a members club called the Hibernian Dance Club. There was no doubt in anybody's mind as to where and when the accident giving rise to her claim for damages for personal injuries had occurred. The Hibernian Dance Club was a members club and there could have been no reasonable doubt that the plaintiff intended to sue all those who were members of the Hibernian Dance Club on the date of the accident giving rise to the claim. The same does not apply in reverse in the instant case. Simply because a claim has been intimated on behalf of a particular individual does not mean that that person will go on to issue proceedings at all or at the first opportunity."

Mr Faulks this morning also referred us to the case of The "Al Tawwah" [1991] 1 Lloyd's Rep. 201. He submits that "A B and Others", both as a matter of expression and also as a matter of fact in this case, did not identify a finite group of people at the time the writs were issued, and he submits that this case is not comparable with the facts of the Hibernian Dance Club case.

Mr Grime, on behalf of the National Children's Home, submits in his written submission that neither the NCH nor their representatives had any way of identifying the persons who intended to sue when the writs were issued on 31st January 1997. He submits, as does Mr Faulks, that the judge was wrong to equate this case with the Hibernian Dance Club case. In that case the group had the means themselves of knowing who the group was. In this case it is suggested that the defendants had no means of knowing what, at best, was only known to the plaintiffs' solicitor, but perhaps not even to him. On this basis it is submitted that there was no means of knowledge available to anyone.

The submissions of Mr Faulks and Mr Grime are adopted by Mr Bellis on behalf of Liverpool City Council.

In essence, all parties' submissions amount to this: that although it is accepted that Mr Garsden intended to issue proceedings on behalf of a large number of plaintiffs, most (if not all) of whom had been identified one way or another to the defendants' solicitors in correspondence which preceded the issue of the writs, the precise composition of the members of the group on behalf of whom Mr Garsden was intending to issue proceedings on 31st January 1997 was not known to the defendants' solicitors, nor had they means of finding out, nor indeed in some instances, it is submitted, was it known to Mr Garsden himself. It is suggested that some of the plaintiffs may have been intending to take proceedings but were not in a position to do so on 31st January 1997, for example because they did not have a sufficient legal aid certificate, and reference is made in that respect to a letter which Mr Garsden wrote on 28th January 1997.

In my judgment, the form of title mistakenly used in these proceedings was in no sense misleading. It told the defendants what they already knew: that proceedings were being brought by a substantial number of plaintiffs, most (if not all) of whom had been previously identified. As to whether there was "any reasonable doubt as to the identity of the party intending to sue", I consider that Mr Justice Forbes was entirely correct to conclude that there was not. He emphasised the word "reasonable", and rightly so. As has been said on previous occasions by this court, the present rules of court are not always entirely apt to deal with the complications of group proceedings. Ord.20, r.5(3) is drafted as if the question of doubt as to the identity of the party intending to sue is a question affecting a single party. In managing group proceedings under the present rules, the court has to be flexible and in some instances inventive, though not, of course, so as to rewrite or override the rules themselves. The defendants were, in my view, well aware of the identity of the group of persons intending to sue and, without being in any sense critical or, I hope, offensive, I consider that the points being made as to the precise composition of the group at 31st January 1997 may be characterised as quibbles. There was no reasonable doubt as to the composition of the group.

In my judgment Mr Justice Forbes' decision is unassailable and I would refuse leave.

LORD JUSTICE NOURSE: I agree and do not wish to add anything of my own. Each application is therefore dismissed.

Order: applications dismissed.