Taylor v Nugent Care Society

A claimant is not required to join a group litigation order and may commence separate proceedings. That entitlement does not prevent the court managing parallel proceedings to protect the group litigation and to give priority to those who joined it. Refusal of late joinder does not, by itself, make separate proceedings an abuse of process. Strike-out is a draconian remedy requiring a clear case. Pre-commencement delay may be considered, but the court should assess whether delay after commencement is abusive and whether the claim can be managed proportionately. A stay, conditions binding the claimant to generic decisions, and costs orders may protect the group and defendant. Where those measures are available, dismissal is disproportionate.

The claimant alleged that he had suffered abuse while in the defendant’s care. A group litigation order had been made for related claims, with a cut-off date of 31 May 1999 for joining the group. The claimant issued separate proceedings on 17 December 2001 and subsequently applied for permission to join the group out of time. Permission was refused, and the claimant abandoned his appeal against that refusal.

The defendant then applied to strike out the separate claim as an abuse of process under the Civil Procedure Rules and the court’s inherent jurisdiction. Moses J allowed the application. The central issue on appeal was whether continuing the individual claim, after refusal of late joinder, was an abuse of process and whether striking it out was proportionate.

The appeal was allowed unanimously. Lord Woolf CJ gave the judgment, with Tuckey LJ and Wall LJ agreeing.

1. Part 19 of the Civil Procedure Rules does not require a claimant to join a group litigation order. A claimant may issue separate proceedings. However, the court may manage those proceedings by reference to the group litigation, and litigants who joined the group may receive higher priority because of their number and cooperation with the court’s management of the litigation.
2. There was a material distinction between claimants who joined a group action and disobeyed a court direction, and a claimant who had never been subject to an order requiring him to join or comply with the group directions. A subsequent separate claim by the former might amount to an abuse, but the latter’s claim was not automatically abusive.
3. Refusal of late permission to join the group did not justify striking out the individual claim. The court could consider delay before proceedings were commenced, but strike-out for abuse required a clear case involving abusive delay after commencement, viewed against the background. Delay alone did not justify the draconian remedy. Any separate limitation issue would have to be addressed under the applicable limitation requirements and the court’s discretion, but limitation was not in issue on this appeal.
4. The court should consider proportionate measures to protect the group and defendant, including staying the individual claim, imposing conditions that the claimant be bound by relevant generic decisions in the group action, and making costs orders preventing additional costs. Since such measures were available, dismissal was disproportionate.
5. The claim was restored and stayed pending an application to Holland J for directions on its future management. Holland J could decide whether the claim should later become part of the group action. The appeal costs order awarded the appellant half of the appeal costs, and the costs order below was set aside.

• Court of Appeal (Civil Division): allowed the appeal, restored the claim and imposed a stay pending directions from Holland J. [2004] EWCA Civ 51
• Manchester District Registry (Moses J): struck out the claim as an abuse of process under the Civil Procedure Rules and the inherent jurisdiction.