Adams & Individuals Listed In Schedule 1 To the Amended Claim Form v Ford & Ors Listed In Schedule 2 To the Amended Claim Form & Ors

Proceedings issued without a claimant’s authority are defective and liable to be struck out, but they are not a nullity. The claimant may adopt them subsequently, including after the limitation period has expired.

Issuing proceedings without authority is generally a misuse of process, but it is not invariably abusive. The court must assess the circumstances at the time of issue, including urgency, access to justice and the solicitor’s justification.

A false statement of truth does not itself render a claim form legally ineffective. Strike out remains discretionary and must be proportionate. Solicitors pursuing unauthorised multi-party claims must act transparently, identify those who authorised issue and service, and provide properly authorised statements of truth.

A claim form was issued for 273 investors alleging fraud in technology-based investment schemes. The issuing solicitors had authority from some, but not all, of the named claimants. The claim form nevertheless contained a solicitor’s statement that all the claimants believed its facts to be true and had authorised him to sign.

Before service, the claim was reduced to 170 claimants. By the hearing, 158 wished to proceed, including some who had instructed the solicitors only after issue. David Steel J dismissed an application under the Civil Procedure Rules 1998 to strike out the amended claim form.

The defendants appealed. The central questions were whether the claim form was a nullity, wholly or as regards the later instructors, and whether issuing it without authority or with a false statement of truth required strike out as an abuse of process.

1. Appeal dismissed unanimously. Proceedings begun by a solicitor without authority are defective and may be struck out, but they are not devoid of legal effect before strike out. A person named as claimant may adopt the proceedings subsequently. Presentaciones Musicales SA v Secunda [1994] Ch 271 remained binding: the Civil Procedure Rules 1998 did not reverse its principle.

2. A claim form remains effective even if it lacks a statement of truth. It therefore could not become a nullity merely because its statement of truth was false. The Rules instead provide express sanctions for non-compliance and for false statements. Treating any disputed pleading as a nullity because an assertion might be false would encourage undesirable pre-trial challenges.

3. It is ordinarily a misuse of the court’s process for solicitors to commence proceedings in the name of someone who has not authorised them. No categorical rule applies, however. Abuse of process is sensitive to the circumstances prevailing at issue. Urgent proceedings may sometimes be justified where authority cannot be completed before limitation expires. The practical demands of collective litigation and access to justice were relevant here.

4. The solicitors were not officious intermeddlers. They acted for a developing group of dispersed investors facing a possible limitation deadline and substantial collective costs. On those particular facts, including the need to aggregate the claims, issuing proceedings for potential group members was not itself an abuse.

5. The solicitor’s statement of truth was false and represented a serious failure of candour. It was nevertheless open to the judge to conclude that striking out all or some of the claims would be disproportionate and contrary to justice. The original instructors could not justly lose timely claims because other claimants were included without authority.

6. Proper practice required the original statement of truth to be confined to claimants who had authorised it. At service, a further statement should have identified later-authorising claimants. Further statements should have been served as additional claimants gave instructions. The defendants were entitled to know who had authorised issue and service.

7. Arden LJ emphasised that unauthorised commencement may be acceptable only where openly and justifiably undertaken. The person responsible may have to explain the decision and face adverse costs. Transparency is an important safeguard, particularly in multi-party litigation.

1. Court of Appeal (Civil Division): The defendants’ appeal was dismissed unanimously. The amended claim form was neither a nullity nor required to be struck out for abuse of process: [2012] EWCA Civ 544.
2. Commercial Court, Queen’s Bench Division: David Steel J dismissed the defendants’ application to strike out the amended claim form. No neutral citation for that decision is stated in the judgment.