Summary

The judge was fully entitled, in the exercise of his discretion, to order five related actions against solicitors to be heard together and the defendant's contention that, should the actions be heard together, he would be left with the impression that he had not had a fair trial, was not accepted by the court, since there was no rational reason for so concluding.

Facts

Defendant's appeal from the order of Jacob J made on 29 October, whereby it was ordered, inter alia, that the trial of the action be heard at the same time as the trial of actions CH 1996 M 1095, CH 1996 M 2286, CH 1997 M 2496 and CH 1996 E 975. In all of the five listed actions, the plaintiffs were the lenders and the defendant was a firm of solicitors, of which, the senior partner acted for the lender and each borrower in all of the five mortgage transactions that gave rise to the five actions. Having commenced five separate actions, the plaintiffs sought to have them all tried together under RSC O.4 r.9. The defendant accepted that the facts of two of the actions, CH 1996 M 2286 and CH 1996 M 1095, were interconnected and bore such a striking similarity that it was proper that they be tried together. However, with regard to the other three actions, the defendant disputed that it was proper for them to be tried together. On 30 July 1997, the plaintiffs' application was refused, but it was ordered that the two interconnected actions be tried together. The plaintiffs' appeal was allowed on 29 October 1997 and it was ordered by Jacob J that all five actions be tried together. The defendant appealed on the grounds, inter alia, that; (i) the judge misdirected himself in holding that the actions should be tried together unless it were oppressive or unfair to the defendant for them to be tried together and, (ii) the judge erred in principle in failing to consider and/or to attach sufficient weight to the question of prejudice to the defendant by reference to the position the defendant would have occupied had the actions been tried separately compared with his position if the actions were tried together.

Held

(1) The judge was fully entitled, in the exercise of his discretion, to order the actions to be heard together. The defendant's contention that, should the actions be heard together, he would be left with the impression that he had not had a fair trial, was not accepted by the court. There was no rational reason for so concluding. In any event, the defendant was a solicitor and well aware of the approach taken by a judge when dealing with a case before him. It was for the judge to set out the facts of the case and apply the law to reach the appropriate decision. (2) The court did not feel that the task of the judge hearing all five actions together would be too onerous, or that he would be unable to separate the facts relevant to each particular action. If the judge did, however, take into account facts not relevant to one of the actions, the defendant would have a right to appeal. (3) Although the five actions involved different borrowers, different locations of subject properties, different times from March 1989 to April 1990 and, different breaches of duty, there was a common question of law which arose in all five cases, namely the ambit of a solicitor's duty to report on matters which may be material to the lender's decision to lend. (4) The judge was right to also consider the cost for the parties, time of the parties and, the administration of justice as a whole that would be taken up by separate hearings. Even if two of the actions were tried together, it would still mean that there would be four separate hearings which would be contrary to the administration of justice as a whole.

Appeal dismissed.