“Right to use one claim form to start two or more claims 7.3 A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.”
“Parties – general 19.1 Any number of claimants or defendants may be joined as parties to a claim.”
“We start by reiterating a point that has been made before, namely that this Court will not lightly interfere with a case management decision. In Mannion v Ginty[2012] EWCA Civ. 1667 at [18] Lewison LJ said: “it has been said more than once in this Court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.”
" … The fact that different judges might have given different weight to the various factors does not make the decision one which can be overturned. There must be something in the nature of an error of principle or something wholly omitted or wrongly taken into account or a balancing of factors which is obviously untenable."
“37. … these are appeals from case management decisions made in the exercise of his discretion by a judge who, because of his involvement in the case over time, had an accumulated knowledge of the background and the issues which this Court would be unable to match. The judge was in the best position to reach conclusions as to the future course of the proceedings. An appellate Court should respect the judge's decisions. It should not yield to the temptation to “second guess” the judge in a matter peculiarly within his province. 38. I accept, without reservation, that this Court should not interfere with case management decisions made by a judge who has applied the correct principles, and who has taken into account the matters which should be taken into account and left out of account matters which are irrelevant, unless satisfied that the decision is so plainly wrong that it must be regarded as outside the generous ambit of the discretion entrusted to the judge.”
“48 … The question is rather: in what circumstances can multiple claims be conveniently disposed of in the same proceedings? It seems to have been common ground at the end of the hearing that the answer to that question included the circumstances described in O15 r 4. I entirely agree with that proposition for several reasons. First, it is obviously the case that claims can be conveniently disposed of in the same proceedings if common questions of law or fact arise in all the claims brought and if the claims are in respect of or arise out of the same transaction or series of transactions. Secondly, nobody ever suggested when the CPR was introduced that a radical departure was intended from the previous position as to group actions, save for the introduction of GLOs. Thirdly, the concept of “convenience” appeared many years ago in Ord 15 r4 where it was provided that if two or more plaintiffs were parties and the court thought that their joinder might embarrass or delay the trial or was otherwise inconvenient, separate trials could be ordered. It is this rule that seems to have been used as a foundation for the simplified words in 7.3. The intention of the CPR was to make the procedural rules intelligible to non-lawyers as well as lawyers. Finally, for the reasons given in the Guide, amongst others, interpreting 7.3 as excluding the cases brought by multiple claimants within O15 r4 would not serve the overriding objective of enabling the court to deal with cases justly and at proportionate cost. 49. I turn next to the question of whether any of the three tests promulgated in Abbott are correct. I have described the three tests as the real progress test, the real significance test and the test that requires that the determination of common issues in a claim by multiple claimants under 19.1 would bind all parties. I do not think any of these tests is appropriate to exclude cases from the ambit of 19.1. It seems to me that 19.1 and 7.3 must be construed as meaning what they say: any number of claimants or defendants may be joined as parties to proceedings, and claimants may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. There is no exclusionary rule of real progress, real significance or otherwise. The court will determine what is convenient according to the facts of every case.” … “51. I accept that multiple claims will probably be capable of being conveniently disposed of in the same proceedings where common issues will bind all or most of the claimants (see paras 31, 33 and 35 above), but I do not think that is currently a requirement of the CPR. Nor, therefore, is it the correct test. There is no test beyond the words of rule 7.3, even if it is clear that cases within the old O15 r 4 and cases where common issues will bind all the claimants will obviously be capable of being conveniently disposed of in the same proceedings.”
“18. For the reasons set out in this judgment, we allow all three appeals. The dealers were the sellers of the cars, but they were also acting as credit brokers on behalf of the claimants. In the latter role, their task was to search for and offer the customer a finance deal from their panel of lenders which was suitable for their needs and competitive. In some cases they undertook to find the best deal or the one which was most suitable for the customer. They therefore owed the claimants the “disinterested duty” described in Wood. The relationship was also a fiduciary one. In all three cases there was a conflict of interest and no informed consent by the consumer to the receipt of the commission. However, that would be insufficient in itself to make the lender a primary wrongdoer. In order to give rise to a primary liability on the part of the lender, the commission must be secret. If there is partial disclosure which suffices to negate secrecy, there is binding authority (Hurstanger) that the lender can only be held liable in equity as an accessory to the broker’s breach of fiduciary duty. 19. On the facts, there was no disclosure in Hopcraft and, we find, insufficient disclosure in Wrench to negate secrecy. The payment of the commission in those cases was secret, and the lenders were therefore liable as primary wrongdoers. In the light of the concession which was made below, we must treat the situation in Johnson as similar to that in Hurstanger, where there was sufficient disclosure to negate secrecy, but insufficient disclosure to procure the consumer’s fully informed consent to the payment. We find that the lenders in Johnson are liable as accessories for procuring the brokers’ breach of fiduciary duty by making the commission payment to them in the circumstances in which they did. 20. So far as the statutory claim is concerned, the mere fact that there has been no disclosure of the commission, or only partial disclosure, will not necessarily suffice to make the relationship between lender and consumer “unfair” for the purposes of the 1974 Act. However on its specific facts, Mr Johnson’s claim under the 1974 Act succeeds.”
“22 A third point which is apparent on the face of the provisions is the breadth and open-ended nature of the assessment required by section 140A. The court is not left entirely at large, as subsection (1) requires the court to decide whether the relationship is unfair to the debtor because of one or more of three specified matters. These three possible causes of unfairness are, however, extremely broad. They include not only (a) “any of the terms of the [credit] agreement or of any related agreement” and (b) “the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement”, but also (c) “any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)”
“56 It follows that application of sections 140A and 140B is bound to be fact-sensitive: even in a world of widespread mis-selling and unfairness, this is not a jurisdiction where, on its proper analysis and application, a single pre-determined criterion will always determine the question of unfairness; nor will one size of remedy fit all cases where the relationship is found to be unfair. It is easy to conceive of cases where allowing a full refund of all premiums (including commissions and profit share) together with interest would be to do more than was required to remedy the causes of the identified unfairness. It is equally easy to conceive of cases where anything short of a full refund will fail to remedy them. That is why the Supreme Court in Plevin while being clear that the commissions paid in that case were a long way beyond the tipping point, were equally clear that the case had to be remitted to the County Court to decide what if any relief under section 140B should be ordered unless that could be agreed.”
“24. I approach this issue from two angles. First, there is the broad question of whether seeking to manage this case so as to see if it can be decided on the basis of common issues without reference to individual cases is a sensible and practical approach. The second angle is whether the formulation of the issues in Appendix 2 is itself sensible or practical. Those questions are, of course, closely related. 25. As to the first, I am firmly of the conclusion that as a general approach it is neither sensible nor practical. It does not reflect the likely real issues, nor does it encapsulate a sensible method of trying them. On the face of the legislation, the facts of individual cases are capable of affecting the assessment of fairness, and they cannot be disregarded as such. … 27. That leaves open Mr Lowe’s alternative way of approaching matters, which is to decide unfairness without looking at personal circumstances with a view to achieving a sort of prima facie finding of unfairness and then (if necessary) feeding the individual circumstances into the mix at that stage (see for example paragraph 8 in Appendix 2). That does not seem to me to be a proper or sensible way of going about the litigation. The inquiry as to fairness is a one stage inquiry looking at both sides of the transaction, not a two stage inquiry. That is plain enough from the statute, and the sensible conduct of this litigation requires it. … 29. There is one further factor which I have in mind. Even if it might be appropriate to try to get a determination of fairness, whether prima facie or not, without putting that question in a real factual transactional context, I have to consider the degree of likelihood of that turning out to be possible. It would be a positive disadvantage to this litigation to go through the exercise, make some findings of fact but to decide that the question of fairness cannot, after all, be decided at that stage.”
“10. … Whether or not this regulation excludes the fairness assessment exercise is going to be an issue. … 34. As to that, it seems to me that there is one plain common issue, which probably needs to be got out of the way before one embarks on fairness questions, at least under the 1994 Regulations. That is the questions raised by Regulation 3. They apply across the board. If the banks succeed on it there will (as I understand it) be no further question of fairness to be decided under the 1994 Regulations. If they fail, questions of fairness arise under those Regulations, and they arise in any event under the 1974 Act. Fairness questions can best be tackled by taking lead cases, or test cases (depending on one’s preferred terminology). Sample cases can be taken which represent various parts of the spectrum. Technically speaking, the actual findings of unfairness in those cases will not bind other litigants, whether under a GLO or not, but they will doubtless provide guidance for the disposition of a lot, if not all, the other cases. Insofar as they do not lead to agreement on all outstanding cases, then any remaining cases can be dealt with more efficiently by virtue of the material which has already been rehearsed and ruled on in the lead cases.”
“[190] The court is not bound to adopt the line drawn by the FCA in its drafting of CONC in this sort of case, but where the rules take account of the need to balance relevant matters of policy, at the lowest it provides a starting point for the consideration of fairness, and at the highest it is a powerful factor in deciding whether the individual relationship is fair or not. Given the burden of proof, when the rules are breached in a substantive way, it is likely to be difficult for the Defendant to show that the relationship was fair.”
“In relation to S.s 140A of the CCA, given the burden of proof is on the lender when a judge finds that the CONC rules have been breached in a substantive way and the lender is responsible or liable for that breach, it is likely to be a more difficult task for the lender to show that the relationship was fair.”
“the courts are however used to dealing with high volumes of Plevin claims. Around 56,000 claims were issued between October 2020 and March 2022. There is a degree of consensus between the parties that historically only around 8% of Plevin claims require a final hearing. Virtually all of these claims are on the small claims track.”
“50 We were referred to the decision on Judge Worster in the County Court at Birmingham on8 September 2023 in Angel v Black Horse Rock Ltd (unreported)8 September 2023 , where he decided that it was not convenient on the facts of that case for multiple claimants to be joined in a single set of proceedings. All the individual claims demanded a separate evaluation of whether the separate relationship between the claimant and the defendant was unfair within the meaning ofsection 140A of the Consumer Credit Act 1974 . No joint remedy was sought, and each claim was legally distinct and turned on the particular facts of the case, and a finding in one case would not bind the situation in another (see paras 19—22, 36 and 42 of Judge Worster’s decision). The facts are quite different here, where there are common issues as the judge found. It seems likely at least that findings on the common issues the judge identified will apply to, and depending on the precise nature of the issue and any further orders made, bind all the claimants.”