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Group Actions and Termination of Retainers

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Wilson & Others v Bayer Pharma AG & Others [2022] EWHC 670 (QB)

The High Court reiterated the procedural position both regarding group actions where the Solicitor terminates their retainer with the Claimants and the restrictions upon the remaining Claimants under the group action in seeking new legal representation.  

The claim was issued under the lead Claimant’s name on 2nd July 2021 at which time 231 Claimants were involved in the action.  The hearing also considered the discontinuance of 48 of the Claimants, not considered in this article.  

The Solicitors acting on behalf of the Claimant terminated their retainers with the 183 Claimants who wished to continue their claims on the 21st January 2022.  

They applied to come off the record and for permission for the 48 Claimants to discontinue.

The Court considered CPR 42:

“All the Solicitors have ceased to act

42.3

(1) A Solicitor may apply for an Order declaring that he has ceased to be the Solicitor acting for a party.  

(2) Where an application is made under this Rule –

(a) Notice of the application must be given to the party for whom the Solicitor is acting, unless the Court directs otherwise; and

(b) The application must be supported by evidence.

(3) Where the Court makes an Order that the Solicitor has ceased to act –

(a) A copy of the Order must be served on every party to the proceedings; and

(b) If it is served by a party or the Solicitor of the party or the Solicitor (as the case may be) must file a Certificate of Service.”

At paragraph 12:

“It is to be noted that the rule gives no guidance on the principles to be applied by the Court when considering such an application.  An important distinction, however, falls to be drawn between the contractual termination of the retainer and the Court’s declaration that the Solicitor in question has ceased to act.

A Solicitor may terminate his or her retainer on a number of grounds…the bottom line, however, is that a Court cannot normally (if at all) require a Solicitor to continue to act for a party whose retainer he or she has terminated.  In circumstances in which the termination of the retainer was unjustified then the individual Claimant may seek a remedy in damages, indemnity or costs against the Solicitor.  I repeat I make no relevant finding on that issue.”

Further Legal Representation for the Remaining Claimants

At paragraph 16 of the Judgment, Mr. Justice Turner considered the practical difficulties that the Claimants may face in continuing the litigation, and the general rule requiring them to be represented by a single firm of Solicitors in a group action.  

“A further potential problem arises from the application of the principles set out in Lewis and Another v Daily Telegraph Limited (No. 2) [1964] 2 QB 601.  In that case, decided under the old rules of Court, the Court of Appeal ruled that Co-Plaintiffs in a consolidated action were not entitled to separate legal representation without leave of the Court.  It remains generally the case that Claimant’s must justify representation by more than one firm of Solicitors (see Ong v Ping [2015] EWHC 3258 (CH)).”

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