Davies & Ors v The Department of Trade & Industry & Ors

When managing group litigation, the court has a broad discretionary power under rule 19.2 of the Civil Procedure Rules 1998 to join a person whose interests may be affected by findings in the proceedings. The person has no corresponding right to be joined.

The same case-management powers are available when the court considers a group litigation order by reference to threatened proceedings. In deciding whether to join a potential contribution defendant, the court should balance that person’s interest in contesting liability against the parties’ interests in avoiding unnecessary cost, complexity and funding difficulties. It may postpone joinder until the pleadings, composition of the claimant group and likelihood of contribution proceedings become clearer.

Five former miners sought a group litigation order concerning British Coal’s alleged liability for chronic knee injuries caused by underground work. The Department of Trade and Industry had succeeded to British Coal’s liabilities. Coal-mining contractors wished to participate because some prospective claimants had worked for them and the Department might later bring contribution proceedings.

On 26 June 2006, HH Judge Grenfell in Leeds County Court made the group litigation order but declined at that stage to broaden its issues or join the contractors. He left joinder open for later reconsideration. The contractors appealed, contending that claims and issues concerning them ought to be included and disputing the proper approach to the court’s powers.

The central questions were whether the court could join potential contribution defendants when considering threatened group proceedings and whether the judge had lawfully exercised his discretion by postponing joinder.

1. Appeal dismissed unanimously. The judge had correctly understood the scope of his powers and his exercise of discretion could not be impugned. Longmore and Maurice Kay LJJ agreed with Waller LJ.

2. Rule 19.2 of the Civil Procedure Rules 1998 confers a wide power to join a person who may be affected by findings in the proceedings. If a miner had also worked for a contractor and the Department was likely to pursue that contractor for a contribution after an adverse judgment, the court could permit the contractor to be joined. The power remained discretionary; a contractor had no right to joinder.

3. The court has the same powers when considering a group litigation order by reference to threatened proceedings as it would have after proceedings had begun. It may examine the proceedings likely to be commenced, consider whether a contribution defendant will probably be joined and decide whether to add that person on the court’s own initiative. The broad approach to procedural control in group actions described in AB v John Wyeth [1993] 4 Med LR 1 supported that conclusion.

4. The joinder decision required a balance between the contractors’ interest in resisting findings which might place them at a practical disadvantage in later contribution proceedings, the claimants’ interest in avoiding additional cost and funding difficulties, and the Department’s interest in controlling costs while preserving its ability to bring contribution proceedings. Although findings in litigation to which the contractors were not parties would not bind them in law, they might be difficult to contest in practice.

5. The judge was entitled to conclude that joinder was premature. The Department could be expected to contest liability properly, while immediate contractor participation could increase cost and complexity. The position could be reconsidered after claims and defences had been pleaded and the court knew how many claimants had contractor employment. The matter was therefore properly kept under review.

6. Applying the appellate standard in Tanfern v Cameron Macdonald (Practice Note) [2001] 1 WLR 1311 and G v G (Minors Custody Order) [1985] 1 WLR 647, the judge had not exceeded the generous ambit within which reasonable disagreement was possible.

1. Court of Appeal (Civil Division): The contractors’ appeal was dismissed unanimously. The County Court’s decision not to join them or broaden the group litigation issues at that stage was upheld: [2006] EWCA Civ 1360.

2. Leeds County Court: HH Judge Grenfell made a group litigation order on 26 June 2006. He declined at that stage to broaden the issues or join the coal-mining contractors, but directed that the matter remain open for reconsideration.