CPR 3.9: MITCHELL AND APPLYING TO JOIN GROUP LITIGATION: HOLLOWAY -v- TRANSFORM MEDICAL GROUP

In Holloway -v- Transport Medical Group [2014] EWHC 1641 (QB) Mrs Justice Thirlwall DBE considered whether the “Mitchell” principles applied to late applications to join the register of claims following a Group Litigation Order.

THE JUDGMENT

The judgment is available on Henderson Chambers’ website. There is also a summary by Andrew Kinner of Henderson Chambers of the main points of the judgment.

THE ISSUES

An order in group litigation gave a cut off date for lodging of applications to join the action as the 8th April 2013. Seventeen applicants applied to join the action some in January and other in February 2014.

• The (prospective) claimants argued that they were not seeking relief from sanctions. These claimants were never part of the Group Litigation Order and had not disobeyed any order of the court.  CPR 3.9 did not apply.
• The defendants argued that this was, properly analysed, an application for relief from sanctions.  However, in any event the court should consider the Mitchell principles

DID CPR 3.9 APPLY?

The judge was clear in her view that CPR 3.9 applied. The purpose of the GLO was to secure good management of the claims subject to the GLO. It was difficult to characterise the need to apply for permission for those who had not joined the group in time as anything other than a sanction.

“Were a cut off date not a sanction it would be difficult to see what purpose it serves in the management of group litigation. In my judgment CPR 3.9 applies.”

APPLICATION OF THE MITCHELL PRINCIPLES

The reasons given for the failure to apply timeously related to staffing issues at the claimant’s solicitors. The judge observed that they had:

1. Failed to have the claims joined to the register before the cut off date (knowing full well of the date).

2. Failed to make an application for an extension before the cut off date.

3. Having made a decision to apply 8 months after the relevant date failed to make the application until 10 months had elapsed.

The failure were described as “serious and sustained”.

THE APPLICATION WAS REFUSED

The judge observed that whether the applications were framed under CPR 3.8 or CPR 1.2 they were hopeless. “To grant them would undermine the discipline of this litigation. The cut off date would be rendered meaningless”.  Any prejudice that arose lay at teh door of the claimants’ solicitors.  Her conclusion would have been identical even before Mitchell.

PRACTICAL CONSEQUENCES

This case is not really a “Mitchell” case in that the decision would have been identical prior to the amendments to CPR 3.9.  However it does show the scope of CPR 3.9. The argument that 3.9 did not apply was soundly rejected.

MITCHELL AND GROUP LITIGATION

There have been other cases where sanctions have been considered in the context of group litigation.

The case of Adlington involved relief from sanctions in the context of an action with 134 claimants. (Relief from sanctions granted).

The case of Ashton involved an action by multiple prisoners (relief from sanctions refused).

What is clear now is that CPR 3.9 applies to applications to join GLOs after a cut off date.