Introduction

There is something in this case for both claimant and defendant representatives. The action was one of civil assault and battery arising from three bombings attributed to the Provisional Irish Republican Army (PIRA), one in 1973 and two in 1996. Gerry Adams was sued by three claimants both in his personal capacity and in his capacity as representative of the PIRA. They sought £1 for “vindicatory purposes”, as opposed to substantial damages. He successfully sought strike-out of the representative aspect of the claim. He failed to obtain a declaration that the claim was not protected by QOCS.

Representative capacity

The PIRA was an unincorporated association. Whether Mr Adams could be sued as the representative of the PIRA depended on whether he had the “same interest”, per the test at CPR 19.8, as the other members of the PIRA who may be caught by the definition of the relevant class of defendant in the Particulars of Claim. That class was drawn broadly, namely “the PIRA, its Army Council, ‘leaders’ and members”, without temporal qualification. Even with the claimants’ suggested amendment to that definition, i.e. an insertion of a cut-off date of 1997, there was an inescapable problem that someone who joined after 1973 but left by 1996 may well not have the same interest as Mr Adams, as they might be able to run a defence that they were simply not party to the bombings and did not attend relevant meetings.

A second key reason why the representative claim was struck out was that whether an individual fitted within the defined class would depend on the outcome of trial, and would not be clear right from the outset: it did not fit within the requirement that “at all stages of the proceedings, and not just at the date of judgment at the end, it must be possible to say of any particular person whether or not they qualify for membership of the represented class of persons”: this requirement was termed the “general principle”, first set out in Emerald Supplies Ltd v. British Airways plc [2011] Ch. 345; [2010] EWCA Civ 1284 and affirmed in Lloyd v. Google LLC [2022] AC 1217; [2021] UKSC 50 “that membership of the class should not depend on the outcome of the litigation”. This principle was held to be fatal to the claim despite the claimants’ seemingly well-founded policy point that this would give secretive criminal organisations an advantage over, say, a golf club whose members could be readily identified. Importantly, the High Court was pointed to case law where questions about whether an individual was an appropriate representative were deferred to trial, but distinguished them for a number of reasons, including that they did not reference Emerald and Lloyd.

Following Clark v Adams, it is likely to be hard to persuade a judge that this general principle can be ousted: representatives of defendants would therefore do well to scrutinise the definitions of any class of claimant or defendant for the purposes of CPR 19.8, and not be afraid to save their clients money by promptly applying for strike-out if it appears that the claim falls foul of the general principle. What is therefore paramount for those considering bringing litigation in representative actions, is to carefully consider how to define the class of claimant or defendant so that it is clear at all stages of proceedings whether an individual fits within the class or not. That said, and to be clear, this does not mean that uncertainty as to the precise composition of the class is always fatal to a representative action: the court can be satisfied that there is a class, without being certain as to its precise composition.

QOCS

I can deal with this element of the claim much more briefly: but it is important because there are often skirmishes as to whether QOCS applies in claims that are not “regular” personal injury claims. Soole J kept it simple. Whether or not a claim is for vindicatory damages only, or is an “outlier” compared to typical personal injury claims, the true question is whether the “pleadings set out the necessary ingredients of a claim for damages for personal injury within the meaning of the rule; and contain no averments which are inconsistent with such a claim”: [77]. QOCS protection applied.

This structured approach to the definition of a personal injury claim is likely to provide greater predictability as to whether a given claim will be covered by QOCS, as well as assist other claimants who may seek nominal damages for “vindicatory purposes” in avoiding the risk of substantial adverse costs orders should their claims fail.