Commission Recovery Limited v Marks & Clerk LLP & Anor

Commission Recovery Limited v Marks & Clerk LLP & Anor

The assignment of claims from Bambach Europe to the Claimant is not unlawful or invalid as it is an assignment of property (the undisclosed commission), not a bare right to litigate. The 'same interest' requirement under CPR 19.6 is satisfied as there is no conflict of interest prejudicing class members, and the focus on undisclosed commission allows for representative proceedings. The Particulars of Claim are sufficiently pleaded for the current stage. The Claimant is permitted to act as a representative on an opt-out basis.

Parties
Claimant: Commission Recovery Limited; First Defendant: Marks & Clerk LLP; Second Defendant: Long Acre Renewals (A Firm)
Jurisdiction
England and Wales
Judgment Date
24 February 2023
Procedural Posture
Commercial Representative Action (application to Strike Out and for Direction Under CPR 19.6) / Interlocutory Application (judgment on Strike Out and Representative Status)
Outcome
Defendants' applications to strike out and to prevent the Claimant acting as representative dismissed; Claimant permitted to act as representative on an opt-out basis.
Legal Topics
Representative Proceedings, Secret Commissions, Assignment of Claims, Champerty, Class Actions, Fiduciary Duties
Civil Procedure Commercial Law Equity Representative Proceedings Secret Commissions Assignment of Claims Champerty Class Actions +1 more

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Parties

Commission Recovery Limited

Claimant

Marks & Clerk LLP

First Defendant

Long Acre Renewals (A Firm)

Second Defendant

Procedural Posture

Commercial Representative Action (application to Strike Out and for Direction Under CPR 19.6) / Interlocutory Application (judgment on Strike Out and Representative Status)

Legal Issues

  1. 1 Whether the assignment of claims from Bambach Europe to the Claimant is unlawful and invalid as champertous
  2. 2 Whether the Claimant may act as a representative under CPR 19.6 for a class of clients
  3. 3 Whether the Particulars of Claim should be struck out for failure to plead facts for each class member

Ratio Decidendi

The assignment of claims from Bambach Europe to the Claimant is not unlawful or invalid as it is an assignment of property (the undisclosed commission), not a bare right to litigate. The 'same interest' requirement under CPR 19.6 is satisfied as there is no conflict of interest prejudicing class members, and the focus on undisclosed commission allows for representative proceedings. The Particulars of Claim are sufficiently pleaded for the current stage. The Claimant is permitted to act as a representative on an opt-out basis.

Court Disposition

Defendants' applications to strike out and to prevent the Claimant acting as representative dismissed; Claimant permitted to act as representative on an opt-out basis.

Orders

  • Claim not struck out; assignment upheld as valid.
  • Claimant permitted to act as representative under CPR 19.6 on an opt-out basis.