Representative Actions Under CPR 19.8: Practical Lessons To Learn From Barclays Bank UK Plc v Terry - Trials & Appeals & Compensation

Introduction

The writers have the privilege of having been counsel for the Defendants in what is believed to have been a first case of its type in terms of the 'bifurcated' procedure used to dispose of a large number of related causes of action in a single representative claim.

Across a total of six hearings spanning only a little more than four months, the claim in question dealt with rectifying the consequences of a single bulk discharge by Barclays of its legal mortgages registered over more than 5,000 registered titles ("the Discharge"). Judgments from two of those hearings have been reported at:

Barclays Bank UK Plc v Terry [2023] EWHC 2726 (Ch) (23^rd October 2023, HHJ Paul Matthews sitting as a High Court Judge); and

Barclays Bank UK Plc v Terry [2023] EWHC 3113 (Ch) (30^th November 2023, Bacon J)

The Discharge occurred as a result of new software developed by Barclays (ironically, intended to reduce the risk of human error in processing mortgage discharges) having incorrectly identified the circa 5,000 titles as having a registered charge in favour of Barclays that no longer secured any debt and which charges were therefore considered redundant: whereas, in fact and contrary to the conclusion arrived at by the software, the charges all still had associated debts.

As can be imagined, this led to several interesting questions:

What was the cause of the discharge? Was it a 'mistake' of the kind which the law gives relief against, namely rescission of the discharge and re-registration of the charges? We analyse those questions in more detail in our separate article: [insert name of other article here];
Assuming that, in principle, this was a mistake of the kind which the law gives relief against, was it appropriate for Barclays to seek that relief in relation to circa 5,000 titles in the same claim, via a claim against representative defendants pursuant to CPR 19.8?
Assuming that, in principle, it was appropriate to bring a representative claim under CPR 19.8, how would that have to be handled as a matter of practicality?

When may a representative action be brought under CPR 19.8? Was it appropriate for a representative claim to be brought by Barclays, in this case?

Barclays sought to bring the claim against representative defendants namely Mr and Mrs Terry, co-owners of a property the title to which, prior to the Discharge, had a charge in favour of Barclays registered against it. Barclays relied on CPR 19.8 which provides that:

"19.8— Representative parties with same interest

19.8(1) Where more than one person has the same interest in a claim–

(a) the claim may be begun; or

(b) the court may order that the claim be continued,

by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.

(2) The court may direct that a person may not act as a representative.

(3) Any party may apply to the court for an order under paragraph (2).

(4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule–

(a) is binding on all persons represented in the claim; but

(b) may only be enforced by or against a person who is not a party to the claim with the permission of the court.

(5) This rule does not apply to a claim to which rule 19.9 applies."

The reader will note that, pre-issue, it is (per CPR 19.8(1)(a)) in the gift of the claimant(s) to decide whether or not to bring a representative claim and any defendant(s) objecting to the use of the procedure must apply under CPR 19.8(3) for an order modifying a party's status (whether claimant or defendant) as representative of non-parties. It was noted in Google LLC v Lloyd (discussed in more detail below) that there is "no requirement of consent" by those represented to be so represented – it is an 'opt out' rather than 'opt in' process. That said, it was also noted in Google that the procedure is sufficiently flexible to allow a judge to make 'opting in' a condition of the representative claim proceeding, so the default 'opt out' situation can be reversed by the Court.

On the other hand, if a claim has been issued without it being made clear that the claimant(s) or defendant(s) (or both sides) is/are acting as representatives of others, then the court's permission is required under CPR 19.8(1)(b) to convert the relevant party or parties from having ordinary status (acting only in their own right) to representative status.

Further, the court has power to control the extent to which its judgments and/or orders are binding on the class of represented persons (CPR 19.8(4)); and there is a safety valve for enforcement even if its judgments or orders are so binding. (CPR 19.8(4)(b)).

As to when it is appropriate for a claimant to commence a representative claim, or for the Court to grant permission for an ordinary claim to continue in some way as a representative one, the sole criterion under CPR 19.8 is that the representatives must have the 'same interest' as the represented persons.

It has apparently been possible for representative claims to proceed in the English and Welsh courts for hundreds of years, and under various iterations of procedural rules similar to CPR 19.8 since the late 19^th century, but the current procedural pathway for such cases, in the form of CPR 19.8¹, had not received much judicial analysis at senior courts level until Emerald Supplies Limited v British Airways plc [2011] EWCA Civ²; and was only comprehensively reviewed in Google LLC v Lloyd [2021] UKSC 50, which is the leading authority on representative claims and was referred to in Barclays Bank UK Plc v Terry. In particular, the principles expounded in the Google case were briefly but helpfully summarised in the judgment of HHJ Matthews [2023] EWHC 2726 (Ch) at [7] and [8], namely that:

"7. ...in Google LLC v Lloyd...Lord Leggatt said that the phrase: "The same interest" in the rule is to be interpreted purposively in light of the overriding objective, and requires that the claims should raise a common issue or issues. Even though there may be interests which are divergent at some point, or beyond a certain point, that is acceptable. What is not acceptable is where the represented parties have conflicting interests. In any event, the court has a discretion in the circumstances as to whether to make the representation order.

8. Then in paragraphs 78 through to 84, Lord Leggatt goes on to consider the ways in which this rule might be used. At paragraph 81 he particularly refers to the possibility of adopting what he calls a "bifurcated process", where common issues of fact or law are decided in the representative part of the claim. Then other issues, which may raise separate matters, party by party, are to be left until later."

In Barclays, the Terrys were content to act as representative defendants and did not seek any order to the contrary; but it was inherent in the decision of HHJ Matthews that he was content for the claim to proceed on the basis that the Terrys and the other persons affected had the 'same interest'. Indeed, in the first hearing of the claim on 18^th October 2023, Michael Green J had considered that the use of the CPR 19.8 procedure was appropriate albeit providing in his order that the represented persons had permission to apply to be de-represented if they so wished. Further, at the hearing on 14^th November 2023 before HHJ Keyser KC (sitting as a High Court Judge), where nearly 3,900 titles were dealt with, no issue was taken with the continued use of the 19.8 process by either the parties or the Court; nor was any issue taken in the hearings before Bacon J on 30^th November 2023, 20^th December 2023 and 29^th February 2024.

It was accepted by the parties and the Court that there were common issues namely (i) whether or not there had been a mistake in the making of the Discharge ("the Mistake Issue") (ii) whether or not Barclays' charges should in principle, subject to any equitable defences, be reinstated via rescission of the Discharge and re-registration of the given charges ("the Rescission Issue") and (iii) what priority any reinstated charges should have vis-à-vis other interests affecting the titles in question ("the Priority Issue"). There can be little doubt that the claims against all defendants shared the Mistake Issue as a common issue; though that issue was effectively disposed of by HHJ Matthews in his judgment of 23^rd October 2023, where he found that there had been a mistake against which the equitable remedy of rescission of the discharge was, in principle, available, and which should be granted in relation to the Terrys themselves. As to the Rescission Issue and the Priority Issue, it can be said that these issues are also common, at a high level of abstraction.

However, as to the Rescission Issue, whether in any given represented, individual proprietor/borrower's case the circumstances were such that rescission of the discharge should be granted was ultimately a question to be determined based on whether and how any such individual proprietor/borrower might successfully argue change of position or estoppel-type defences. That said, insofar as represented individuals did not put forward arguments against rescission based on individual circumstances, it seemed appropriate to continue with the action as a representative one (and most certainly in accordance with the overriding objective, both for all parties concerned and for the court system more widely; imagine circa 5,000 additional claims being instantly put into the system).

As to the Priority Issue, again at a granular level this was more dependent on the state of the individual title register (and any pending registration applications) both before and after the Discharge. However, over the course of the hearings Barclays' legal team identified some 14 or so different categories of priority sought, based on their analysis of the priority of various interests either registered or noted on the register in some way. Accordingly, one might have argued for 14 different, separate claims where there was commonality as to the priority position within each of those 14 categories; but there would still remain the general overlap between categories as a result of the Rescission Issue 2, and it was convenient to deal with the Rescission Issue and the Priority Issue at the same time.

Ultimately, in this case it seemed appropriate to allow the action to continue in the way it was brought by Barclays, on the basis that as and when necessary any individuals from the represented class of persons could be taken out into a separate hearing (or, if necessary, separate claim), should the issues in their case sufficiently diverge from those affecting the rest of the class.

It should be noted that the Terrys were sued not just as representatives of the registered proprietors (almost all of whom were also borrower customers of Barclays) of the other circa 5,000 titles, but also as representatives of all other third parties with proprietary interests in those titles (such as second charge lenders, charging order holders, beneficiaries or restrictions associated with other interests, and so on), of which there were some hundreds. Again, it could be argued that whilst there were common issues affecting the Terrys and the other proprietors/borrowers but no or insufficient commonality between those issues and any issues affecting the other third parties with interests. However, the Rescission Issue affected the other third parties as much as the Terrys and the proprietors/borrowers.

Overall, the key point to note is that 'the same interest' does not mean that all issues for all parties on one side have to be the same; simply that there must be at least one common issue; as Lord Leggatt said in Google at [73], the same interest requirement bears a "purposive and pragmatic interpretation" (emphasis supplied).

Was there a bifurcated process?

What then of bifurcation? The writers have read from other legal commentators that this claim was the first to use the 'bifurcated' process discussed by Lord Leggatt in Google at [48], [58] and [81] in the judgment: namely, that it is permissible to use a representative claim to deal with common issues and then move on to use the decisions on common issues as the platform on which to deal with issues individual to the parties and each of the represented persons. Lord Leggatt noted that that might particularly occur where damages required individual assessment (though not invariably: see also [82]).

There is a slight ambiguity in the Google judgment, however, as to whether such individual assessments can take place within the same claim (i.e. the already issued representative action) or must be brought within separate claims – compare [48] "...a representative action which, if successful, form a basis for individual claims for redress" with [81] "...any issues which require individual determination – whether they relate to liability or the amount of damages – to be dealt with at a subsequent stage of the proceedings" (emphases supplied). In the writers' view, Lord Leggatt appears to have envisaged either option as being permissible; and, clearly, having to issue separate further claims would have significant costs consequences in terms of issue fees if nothing else.

At the risk of undermining the basis for its apparent notoriety, is unclear whether the Barclays case really did proceed down a bifurcated path; the four further hearings after the decision of HHJ Matthews on 23^rd October 2023 focused on groups of titles grouped essentially by the complexity of the title (and also accounting for special characteristics of some borrowers/proprietors and third parties, as explained below). As set out in the previous section above, it was possible that some of the represented individual borrowers/proprietors and/or third parties might wish to pursue purely individual arguments as to whether and to what extent Barclays ought to get the redress it sought, but whilst some of the represented persons did complain about the claim, none ultimately pursued an argument in Court that Barclays should not be entitled to the relief sought. Accordingly, the claim proceeded at all stages as (at least, to some extent) a representative claim: it might properly be described as having been, at most, 'semi-bifurcated'.

Who is fit to be a representative?

One other important procedural point should be noted about the nature of this representative claim: as Lord Leggatt noted at [71] inGoogle: "the purpose of requiring the representative to have "the same interest" in the claim as the persons represented is to ensure that the representative can be relied on to conduct the litigation in a way which will effectively promote and protect the interests of all the members of the represented class" (emphasis supplied). Accordingly, if the representative parties act in a manner inconsistent with the interests of some or all of the represented persons then there is a case for removing the represented parties (or at least that status) and substituting (or adding) other parties to represent the represented class of affected persons. It must be said that the Terrys were exemplary representative litigants, however.

What were the practical implications of the claim proceeding as a representative action?

One of the main potential difficulties in any representative claim is adequate definition of the class(es) of persons represented: seeGoogle at [78] in the judgment. However, as noted in Google, the precision of definition required depends on the nature of the claim: and in the Barclays case, it was possible to identify virtually all³ of the persons affected by the proceedings, and whom Mr and Mrs Terry were intended to represent, because the titles in question (and all persons with an interest in them) were registered at HM Land Registry. Barclays' legal team were able to produce (very lengthy) schedules identifying all of the represented persons, and so class definition was simply by reference to those schedules.

However, data protection was a significant issue, in relation to the details of the affected persons: so a confidentiality ring was established in relation to the schedules. This is likely to be a practical issue affecting all representative claims, unless the represented persons are defined in such a way to avoid any need for personal identification (e.g. 'persons being the registered keeper of a [model of car] between [dates]').

There was also the need for the represented persons to be notified in an appropriate way of the fact and substance of the proceedings; this was achieved by sending out pro forma letters, approved by the Court, notifying the borrowers/proprietors and other third parties of the claim, and directing them to online data rooms containing the claim documentation, with timeframes for 'service' agreed by the parties and approved by the Court. However, it is in the nature of the title register that addresses for service are not always kept up to date, and so numerous variations of timetable and method of 'service' had to be agreed as the claim progressed.

In addition, the relief sought by Barclays was of quite a technical legal nature which the ordinary layperson might struggle to comprehend without legal advice. Barclays therefore signposted all affected parties to the writers' instructing solicitors, and undertook to the Court to pay their reasonable legal costs. Not only was this reasonable and proper as a matter of both common sense and Barclays' regulatory obligations, but it was in keeping with the principles regarding costs set out at [79] in the judgment in Google: "...persons represented by a representative claimant or defendant will not normally themselves have been joined as parties to the claim, they will not ordinarily⁴ be liable to pay any costs incurred by the representative in pursuing (or defending) the claim".

There were surprisingly few borrowers/proprietors and third parties who raised concerns or objections to the claim. Those that did were, by and large, satisfied, once they better understood the nature of the case (and where appropriate once compensation was, in principle⁵ offered by Barclays). Any who remained unsatisfied were invited to seek independent legal advice and/or attend the relevant court hearings to make their case out as to why relief should not be granted.

It was not easy for Mr and Mrs Terry and their legal team to manage this part of the process, in particular being mindful of the potential for conflicts of interest to arise: and note that at [71] and [72] in Google it was made clear that whilst it is possible for representatives claims to proceed where there is an element of divergence between the interests of different represented persons, in the sense that not all issues may affect all represented persons, the representative claim can continue as long as the position taken by some represented persons does not prejudice the position taken by others. If there is such prejudice then a conflict arises and continued representation under CPR 19.8 is not permissible.

So, in theBarclays case, any represented person seeking to object to the relief sought on the basis that there was no mistake, or that Barclays were not entitled in principle to relief at all, would have been in conflict with both Mr and Mrs Terry themselves (who had accepted there was a mistake and an entitlement in principle to relief) and with numerous other borrowers/proprietors/third parties (who had expressly or impliedly reached the same conclusion). Such a person could not continue as a represented person and the Court could have decided that the claim against them would have to proceed separately⁶. On the other hand, Mr and Mrs Terry were able to represent borrowers/proprietors and third parties who sought undertakings for compensation and/or postponement of the decision in their particular cases in order to e.g. avoid the loss of an imminent sale of the property in question⁷, as advancing such positions did not prejudice the wider body of represented persons.

There was, of course, also the simply logistical difficulty of dealing with well over 5,000 represented persons. In the event, only several hundred represented persons actually made contact with either Barclays, Barclays' solicitors or Mr and Mrs Terry's solicitors, though even that provided a logistical challenge despite a team of fee earners and two counsel being involved. Such challenges included issues such as onboarding requirements, as well as actually taking instructions and providing advice. It is perhaps inherent in a representative claim that represented persons may take an interest in the matter but not be particularly motivated to complete identification procedures, for example.

Deceased and insolvent borrowers/proprietors also presented particular challenges, for obvious reasons, as did those resident abroad.

Other forms of group or representative litigation

It should not be forgotten that CPR 19.8 is not the only way in which representative proceedings may, or may have to be brought. CPR 19.8(5) provides that CPR 19.8 does not apply to a claim to which rule 19.9 applies – the latter being concerned with representation of various persons (such as the unborn, those who cannot be found or easily be ascertained) where the claim is one 'about' the estate of a deceased person or property the subject of a trust, or the meaning of a document. Michael Green J was persuaded that parts of the Barclays claim, where e.g. a borrower/proprietor was deceased or where the property was held subject to a trust, might be 'about' the estate of a deceased person or 'about' property subject to a trust and therefore gave permission to proceed under CPR 19.9 where necessary; HHJ Matthews however took the view that it was unlikely that any limb of CPR 19.9 applied in this case (see [9] to [11] in his judgment). It should be noted that, in contrast to CPR 19.8 where the claimant can begin a representative claim without permission, a representative claim falling under CPR 19.9 does require the Court's permission to be brought or continued.

Other forms of collective or representative proceedings include:

Claims brought by trustee on behalf of beneficiaries under CPR 19.10;
Claims in which an application is made under CPR 19.13 to make a judgment or order binding on non-parties in certain types of claim;
Claims subject to group litigation orders made under CPR 19.21 to 19.26; and
In a slightly different sense, derivative claims brought by e.g. shareholders under CPR 19.14 to CPR 19.20.

One notable point in relation to group litigation orders, and which was highlighted at [25] in Google, is that GLOs involve an 'opt-in' process; whereas representative claims under CPR 19.8 are, as discussed above, 'opt-out'.

Conclusion

With the benefit of hindsight, there is not a lot we would suggest could or should have been done better to manage what was an inherently unwieldy piece of litigation. Perhaps, a slightly elongated timetable/longer gaps between the first few hearings would have been appropriate to enable more time to prepare for hearings and provide advice to represented persons. However, it is in the nature of such actions that there will always be logistical difficulties.

It remains to be seen how, and how well the CPR 19.8 procedure would work where there was more scope for dispute about the fundamentals of the claim than there was here, or with representative defendants who are less efficient and/or cooperative than the Terrys were, especially where the claim in question involves a 'bifurcated' process.

Footnotes

1. Albeit at the time of the Emerald and Google cases, the rule was to be found in CPR 19.6 rather than 19.8.

2. A case which turned on whether the persons said to be represented could be identified, at all, prior to judgment and therefore whether it was conceptually possible for it to proceed as a representative claim.

3. There were a handful of interests noted or referred to on the title register where it was not possible to identify the holder of the interest due to inadequacy of description in the reference on the register and/or a missing document.

4. Lord Leggatt goes on to refer to the Court's discretion to order costs against a represented person as a 'party' or non-party and also refers to the likelihood of litigation funders of unsuccessful representative parties having a costs order being made against them.

5. Undertakings were given to compensate borrowers/proprietors of certain titles who raised arguable cases of loss being caused by the Discharge and/or the process of reinstating the charge, subject to proof of causation and quantum of loss. It is such individual assessments which might lead to true bifurcation in the sense envisaged by Lord Leggatt in Google at 81..

6. In the event, no borrower/proprietor or third party in fact presented a proper basis for denying the relief sought.

7. The re-registration of the charge itself being a potential cause of conveyancing difficulties.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

UK: Representative Actions Under CPR 19.8: Practical Lessons To Learn From Barclays Bank UK Plc v Terry