Guy's & St Thomas's NHS Foundation Trust & Anor v ESMS Global Ltd & Anor

In representative proceedings, the court must define the represented class with complete clarity and consistency. A representative claimant represents only the persons within the class specified by the relevant order, not every person who might have a related factual or legal interest. Former employees may fall within the represented class where the order covers past beneficiaries of an employee benefit trust, even if they are no longer employed. Persons seeking directions about the conduct of representative proceedings must establish their own personal interest; they cannot rely informally on an undefined cohort without evidence of authority or membership. Where the court record inaccurately describes the representative capacity, the court may clarify the order and direct correction or deemed correction of related pleadings and prior orders.

The proceedings concern alleged breaches of a business purchase agreement requiring the establishment and funding of an employee benefit trust. The second claimant was appointed under a Representation Order pursuant to CPR 19.8 to represent past, present and future beneficiaries of the Trust, subject to specified exclusions.

Two former employees applied for clarification that they fell within the represented class. Alternatively, they sought joinder, notification of proposed settlements affecting former employees, appointment of a co-representative, and directions concerning consultation. The dispute centred on whether former employees employed on or after the Trust’s establishment were represented, and whether the court record accurately described the representative capacity.

1. Declaration. The application for clarification was granted. Under the Representation Order made pursuant to CPR 19.8, the second claimant represents all past, present and future beneficiaries of the Trust, excluding Mr Webster, Mr Sood and any Privileged Relation of either. The two applicants, as former employees who fell within the relevant beneficiary category, were within that represented class.
2. Scope of representation. The court distinguished between former employees employed on or after 18 August 2014, who were plainly within the represented class as past beneficiaries, and earlier former employees whose status was not determined. It was inappropriate to make a declaration on the wider question where it had not been properly in issue and interested persons had not been heard.
3. Alternative relief. Because the applicants were already represented, there was no basis for joinder under CPR 19.2. No order was made on the alternative requests for joinder, a co-representative, settlement notification, or directions concerning amendment of the Trust. The request for a consultation and communications protocol was refused because the applicants had not established a need for such a direction and were already informed about the proceedings and settlement discussions.
4. Representative capacity and court records. Representative proceedings are exceptional. It is essential that the represented class and the issues for which representation operates are stated clearly and consistently. The court directed the claimants to correct the relevant claim documents and varied, or deemed varied, the prior orders so that the representative capacity accurately reflected the Representation Order.
5. Costs. Costs between the claimants and the first defendant were reserved. There was no order as to the applicants’ costs, either in their favour or against them.