A B & Ors v Liverpool City Council & Ors

For the purposes of correcting a party’s name under Ord.20, r.5(3), a collective title used in group litigation is not misleading merely because the precise membership of the group was not finally settled when proceedings were issued. The question is whether there was any reasonable doubt about the identity of the persons intending to sue. The court may apply procedural rules flexibly in complex group proceedings, but may not rewrite or override them. Where the defendants understood that proceedings were being brought by a substantial and sufficiently identifiable group, amendment may be permitted despite the expiry of a limitation period, provided the other requirements of the rule are satisfied.

The plaintiffs brought group proceedings alleging sexual and physical abuse at children’s homes. The writs issued on 31 January 1997 named the plaintiffs as “A B and Others” to preserve anonymity. Mr Justice Forbes had earlier held that the writs were irregular, rather than nullities, and later allowed amendments identifying the individual plaintiffs. He held that the amendments could be permitted under Ord.20, r.5(3) and that it would be unjust to refuse leave after the expiry of any relevant limitation period.

The defendants renewed applications for leave to appeal, contending that the collective title was misleading or created reasonable doubt about the identity of the parties intending to sue. The central issue was whether the proposed amendments satisfied the identity requirement in Ord.20, r.5(3).

1. Applications dismissed. Lord Justice May gave the first judgment and Lord Justice Nourse agreed. The applications for leave to appeal were refused, so Mr Justice Forbes’s order allowing the amendments stood.
2. The use of “A B and Others” was not misleading. It informed the defendants that proceedings were being brought by a substantial number of plaintiffs, most or all of whom had previously been identified to the defendants’ solicitors.
3. The relevant question under Ord.20, r.5(3) was whether there was any reasonable doubt about the identity of the party intending to sue. Exact certainty about the final composition of a group at the date of issue was unnecessary. The defendants were well aware of the identity of the group intending to bring proceedings, and arguments about its precise composition were merely technical.
4. Group litigation may require the court to be flexible and, in some instances, inventive in applying existing procedural rules. That flexibility cannot extend to rewriting or overriding the rules.
5. May LJ additionally observed that, absent agreement, each individual claimant in group litigation must issue proceedings to secure a limitation date. Adding a claimant to a register does not alone secure the limitation benefit of the date of an earlier writ.

• Court of Appeal (Civil Division) — [1998] EWCA Civ 1000: renewed applications for leave to appeal dismissed. Lord Justice May delivered the first judgment; Lord Justice Nourse agreed.
• High Court, Queen’s Bench Division, Manchester District Registry — decision of Mr Justice Forbes dated 17 November 1997: amendments identifying the individual plaintiffs allowed under Ord.20, r.5(3).
• High Court, Queen’s Bench Division, Manchester District Registry — earlier decision of Mr Justice Forbes dated 30 July 1997: the writs were irregular, not nullities; no appeal was brought.