Milne v Open Access Finance Ltd

An application to identify contracting parties is not necessarily an application for disclosure. Where a claimant seeks only the identity of principals represented by an agent, the court may make an order under CPR 3.1(2)(m), or under its inherent jurisdiction, requiring the agent to reveal that identity.

Where multiple parties share a sufficiently common interest, CPR 19.6 may permit the agent to represent them. The court should balance the claimant’s ability to pursue the claim against convenience, the overriding objective and the interests of the represented parties.

The claimant had entered into numerous peer-to-peer lending arrangements through the defendant, which acted as agent for individual lenders. He sought the identities of 612 lenders connected with 42 loans.

Two applications were before the court. The first sought specific disclosure. The second sought transfer to the County Court or, alternatively, pre-action disclosure under CPR 31.16. The claimant also pursued substantive claims under consumer protection, financial services and consumer credit legislation.

The central issues were whether the request was disclosure, what jurisdiction authorised an order identifying the contracting parties, and whether the defendant could represent the lenders under CPR 19.6.

1. Nature of the request. The claimant was not seeking documents relevant to an issue. He sought the identities of the lenders with whom he had contracted. The request was therefore not disclosure in the sense contemplated by Part 31 or the disclosure pilot in Practice Direction 51U. The question whether Part 31 or the pilot applied consequently had no bearing on the application.
2. Jurisdiction to identify principals. The court had jurisdiction under CPR 3.1(2)(m) to require an agent to reveal the identity of the principal, namely the contracting party whom the claimant wished to pursue. The same result could be reached under the court’s inherent jurisdiction, since it would be unattractive for a contracting party to be unable to sue the corresponding party merely because that party could not be identified.
3. Representation. CPR 19.6 provided the appropriate solution. The court may take a broad view of the requirement that represented parties have the same interest. The claimant’s proposed claims against the defendant as agent were in substance identical to the claims against the individual lenders. Any liability of the lenders would arise from acts or omissions of the defendant, giving the defendant and lenders a sufficiently common interest.
4. The defendant was accordingly appointed to act in a representative capacity for the relevant lenders. The lenders would be bound by any judgment in the claimant’s favour, although enforcement against them would require the court’s permission. The two applications were otherwise dismissed.