CPR 19.8 representative action: "bifurcated process" adopted in claim by bank against representative defendant

The High Court has allowed a claim to be brought against two defendants as representatives of 5,000 others, enabling common issues to be determined in respect of the entire class under CPR 19.8 and individual issues to be decided later: Barclays Bank UK Plc v Terry [2023] EWHC 2726 (Ch).

The decision appears to be the first to adopt the "bifurcated process" envisaged by Lord Leggatt in the Supreme Court’s seminal decision on representative actions in Lloyd v Google [2021] UKSC 50, considered in our blog post here. In that case, the court held that a claim for damages under the Data Protection Act 1998 could not be brought as a representative action, since it required proof of material damage or distress which would have to be assessed individually for each claimant. However, it suggested that the claim could have been brought using a “bifurcated process" in which truly common issues (such as whether there has been an actionable breach) were determined for the whole class via a representative action, leaving any individual issues to be dealt with subsequently.

Since that decision, there has been much debate as to the feasability of using a bifurcated process to bring claims on behalf of a broad class of parties who are alleged to have similar claims, and the Court of Appeal's anticipated judgment in the Commission Recovery v Marks & Clerk case is expected to shed some light on the boundaries of the representative action procedure in that context (see our blog post on the first instance decision here). In the meantime, however, it is interesting that the court has adopted the process in order to determine common issues against a class of individuals, where the claimant claims an entitlement to similar relief but accepts that some aspects of the claim must be determined individually.

Background

The claimant Bank brought a claim against two defendants on their own behalf and, under CPR 19.8, as representatives of around 5,000 other individuals who were in a similar factual position to the defendants. All of them had taken out mortgages from the Bank (or another lender whose lending book the Bank had acquired) but the Bank had proceeded to discharge the mortgages over their properties in circumstances where the loans had not yet been fully repaid.

The Bank had conducted a project to identify cases where a mortgage had been redeemed but for some reason it had not actually been discharged from the registered title. It had applied to the Land Registry to remove the mortgages from some 25,905 properties identified through that process. However, it had subsequently discovered that some 5,141 of the mortgages removed related to cases where the customer still owed the Bank money.

The Bank therefore sought rescission of the discharge of those mortgages on the basis of mistake. It applied for summary judgment against the two defendants under CPR Part 24 on the basis that they had no real prospect of successfully defending the claim and there was no other compelling reason it should be dealt with at trial. With regard to the represented customers, it invited the court to adopt a "bifurcated procedure", as recognised by the Supreme Court in Lloyd v Google, so that common issues could be determined under CPR 19.8, with individual issues left to be determined separately.

Decision

The High Court (HHJ Paul Matthews sitting as a High Court judge) was satisfied that, applying the relevant legal principles, the discharge of the mortgages resulted from a distinct mistake on the part of the Bank, as opposed to mere ignorance or inadvertence. It was both a mistake of fact which was fundamental to the transaction, namely that the relevant customers no longer owed any money to the Bank, and a mistake as to legal effect, since the Bank thought it was removing an unnecessary incumbrance on the title when in fact it was turning itself from a secured to an unsecured creditor.

The court's jurisdiction to reverse the mistaken transaction was therefore engaged. However, as the court noted, there was a further requirement before relief could be granted, namely that the mistake be sufficiently serious to make it unconscionable for the customers to retain the benefit of it. As the principles were summarised in Kennedy v Kennedy [2014] EWHC 4129 (Ch): "The gravity of the mistake must be assessed by a close examination of the facts, including the circumstances of the mistake and its consequences for the person who made the vitiated disposition."

In relation to the two named defendants, the judge was satisfied that it would be unconscionable for them to retain the benefit of the mistake (in fact the defendants did not suggest otherwise) and there was no other reason for a trial. Accordingly, it was appropriate to grant summary judgment on the claim against those defendants, and to set aside the mistaken discharge of their mortgage.

However, the court could not make the same decision for the represented customers, because it was necessary to look at the individual facts of their cases before deciding whether it was unconscionable for them to retain the benefit of the mistake. That would have to be addressed at the second stage of the “bifurcated procedure” the court had been invited to order.