1.	This paper: •   describes difficulties which sometimes arise where a class of beneficiaries under a trust is, or should be, represented by a single party in proceedings concerning the trust, •   proposes a solution which may enable these difficulties to be overcome, namely to use a solicitor or other professional person as the representative party, and •   discusses safeguards which might be used if such a person were appointed as the representative Defendant.
2.	The paper arises from practical difficulties encountered by solicitors when acting for representative beneficiaries in the pension fund context. The issue has been considered both by the Pensions Litigation Committee of the Association of Pension Lawyers, at some length, and by the Pension Litigation Court Users' Committee. The nub of the problem is the dichotomy between the true role of the representative beneficiary, which is to lend his name to proceedings so that the arguments for his class can be canvassed, and the procedural reality, which is that he is a party to the litigation and able to give instructions as to the conduct of his part of the proceedings as any other litigant can, in his own interests and at his whim.
	The problem
3.	The problem is not merely philosophical; it can be reflected in real practical difficulties. Appendix 1 to this paper is a compilation of anecdotal evidence of some real problems encountered by practitioners when acting for representative beneficiaries. They range from problems at the outset in finding a suitable candidate, to circumstances where the individual appointed subsequently becomes unsuitable, for example because of pressure brought to bear upon him. Of the instances listed it is only in relation to some that a solution may relatively easily be found by replacing the representative beneficiary by another member of the class. Even that would require the assistance, both practical and financial, of the trustees of the scheme, who are not always willing to co-operate, particularly in cases where they feel vulnerable to attack. The other cases do not lend themselves so readily to a solution, either because time pressures do not permit or because, for a variety of reasons, a substitute is difficult, perhaps impossible, to find, e.g. in cases of intimidation. In such circumstances a mechanism is needed which will enable the case to proceed.
	A possible solution
4.	Under the provisions of CPR 19.7 (as also under the former RSC Order 15 rule 13) the person appointed as a representative party does not have to be a member of the class. It is possible for the court to appoint someone outside the represented class, for example the solicitor who has the conduct of the proceedings, to solve the practical difficulty. The text of rule 19.7 is set out in Appendix 2 for ease of reference.
5.	The substantive problem does not give rise to practical difficulties in every case. This paper is confined to addressing those situations in which it does. Our proposal is that the court should be willing to appoint a solicitor, or another professional such as an actuary, in cases where there is a real practical problem. The proposition that such a person be appointed in cases where it can be shown there is real practical difficulty would be likely to carry widespread support and would be seen as a measure to save time and costs.
6.	In the case of solicitor appointees, it is not thought that professional conduct rules would stand in the way of such an appointment. However, practitioners would want to check, before embarking upon such a course, that their professional indemnity policy afforded cover in respect of this type of activity. Formal Law Society approval would also have to be given.
7.	The scope of rule 19.7 permits the order to be made in circumstances where the persons to be represented all have the same interest in a claim and where to make the appointment would further the overriding objective. This does not limit the availability of the procedure to pension fund actions but it is felt that these are the most likely cases to benefit in view of the large numbers of beneficiaries frequently involved in them.
8.	We are aware of one case where the court has made an order appointing a solicitor to represent the members of a class. In Chessels and others --v- British Telecommunications plc and others [2001] All ER (D) 332 a first instance decision had given rise to adverse consequences affecting a small section of the membership of a pension fund. These consequences had not been foreseen and those who had been appointed representative beneficiaries at first instance were unaffected and content with the judgment. In order to preserve the position as to an appeal Mr Justice Laddie, with no objection, appointed a solicitor to represent the class of members against whose interests the earlier judgment would operate, for the purposes of seeking permission to appeal and of making an application for a prospective costs order in connection with any appeal. This was adopted as a stop-gap measure; it was the intention that, if the appeal proceeded, a member of the affected class would assume the role of representative. The availability of the procedure was thus of immediate and practical benefit in a situation where time did not permit the identification of a member of the class who was willing to act. A passage from the judge's later judgment on the application by the person so appointed for permission to appeal and a prospective costs order in respect of a possible appeal, explaining the circumstances of the appointment, is set out at Appendix 3.
	Are any, and if so what, safeguards needed?
9.	If the representative Defendant were a professional who is not a member of the class there could be an accountability deficit on the part of the representative party unless safeguards were introduced.
10.	Whether any, and if so what, safeguard should be imposed as a condition of such an appointment will depend on the facts and circumstances of the particular case. The purpose of this part of this paper is to identify some ways in which a safeguard might be applied.
11.	The rule requires notice of an application to appoint a representative to be served on "any other person as the court may direct": CPR 19.7(4)(c). The court could therefore direct that notice of the application be served on all known and traceable members of the class. If members of the class were served with the application they would have the opportunity to object and seek to take part in the proceedings themselves or through a different representative. It seems unlikely that the court would make such an order, although it has been suggested that there may be scope under the Human Rights Act for a person who is bound by a judgment by virtue of a representation order made without his or her knowledge to complain that rights under article 6(1) had been infringed.
12.	Two principal concerns which have been raised are costs and runaway litigation, the suggestion being that the lack of accountability means that none of the natural limits would be set. These concerns may be particularly strong where some kind of prospective funding order has been made.
13.	We have considered whether the appointee should only be permitted to conduct the case on the basis of consultation with the membership. But this does not happen at present, even though only one person is representing the whole class. In any event, particularly where the class is large, there are practical difficulties inherent in consultation. It is simply not always possible, or even desirable.
14.	We anticipate that if the court were persuaded to make such an appointment it might require periodical reports to be made back to it. This would ensure, in an appropriate case, that the views of those with conduct of the proceedings were subject to an independent assessment. But it would be important that any reporting procedure did not add complexity, delay and expense, and was one which would preserve a level playing field and proportionality on both sides. By analogy with the new procedure as regards trustees' applications for directions we think that the obligation could in most cases be discharged by a written report.
15.	The appointee could be required to report to the court at certain defined stages in the proceedings, for example after disclosure, if any, or after the service of evidence. These parameters would be set when the initial order was made. Additionally, and by analogy with orders for directions to trustees, the appointee would have the ability to report back to the court and seek directions whenever he felt it appropriate. The reports would, and where advisable should, include not just a statement of the current procedural position, but also the legal advisers' opinion on the merits of proceeding. For this reason, the reports would have to be considered by a Judge or Master who would not hear the trial or any applications in the main course of the case.
16.	The court giving directions at the outset would take a view as to whether trustees should in any given case be involved in the consultation process as to the continuation of the proceedings, or whether they should just be given liberty to apply. If trustees were involved, and to that end received copies of the written reports submitted to the court, they might have to be supplied with edited versions, to secure the confidentiality of matters covered by privilege. Whether or not trustees were given access to the periodic reports, if they had concerns about the proceedings being continued at any stage, they could seek an oral hearing at which they could make their views known, even if they had to be excluded from part of the hearing because privileged material would be looked at. Alternatively, an account of the trustees' views could be transmitted to the court as part of the procedure on the application.
	Conclusion
17.	A previous version of this paper was considered at a meeting of the judges of the Chancery Division in 2000. The judges present thought that it would not be appropriate to approve or disapprove of the paper, and that consideration of the issues discussed, particularly as regards safeguards, should await their being raised in particular cases. It seems that the paper has not become widely known among the profession since then. It is hoped that in this slightly revised version it will become better known and will be of assistance, and that practitioners will take the opportunity of applying for the appointment of a professional representative party if that would assist in resolving practical difficulties in trust litigation.
	The Hon Mr Justice Lloyd Chairman, Pensions Litigation Court Users' Committee 18 August 2003
	Appendix 1
	The Practical Problems
	Finding a representative beneficiary
1A.	Even at the outset, there can be problems in persuading an individual to sign up as a representative beneficiary. Reluctance to play that part can stem from a number of concerns. If the individual is an active member of a pension scheme, he may be unwilling to be seen as crossing the employer; he may have a general unfamiliarity with, and fear of, court proceedings, in particular a fear of having to give oral evidence; he may have concerns about liability for costs, whether unfounded or not. In one case of which we are aware a combination of these factors led to a delay of more than a year. Another case which was hampered by the inability to identify a willing representative beneficiary concerned a scheme which went into winding-up before its provisions could be modified to take account of the priority of those who had paid AVCs (which had recently been introduced). The Scheme was in deficit, and although AVCs would normally have been a top priority in the winding-up, the Scheme as drafted did not take account of that priority. For their protection, the Trustees needed a direction from the court as to how they should proceed. Although it was in the interests of members of the Scheme who had not paid AVCs to argue that the winding-up provisions as they were should be considered definitive, no volunteer could be found to stand for this argument because it was felt to be morally reprehensible.
	Disappearance or unavailability of the representative party
2A.	Representative beneficiaries sometimes die before a case is heard, or move without leaving a forwarding address. Some simply lose interest and fail to respond so that it is impossible to take instructions. They may become of unsound mind. A particular case brought to our attention involved a representative beneficiary who was a Merchant Navy rating and who was, as one might expect, away at sea and uncontactable for long periods of time. All members of his class would be in the same position so that replacing him with another member would not be a solution.
	The representative party unable or unwilling to accept advice
3A.	There are a number of reasons why the representative beneficiary may turn out to be unsuitable for his role. He may have inflexible personal views about the merits of the case or be unable to understand the advice being given; he may not understand the true role of the representative beneficiary; he may have unfounded and not always expressed concerns about his own position. In one case, the representative beneficiary refused to support a compromise which had been advised by Counsel because of his fear that, if subsequently any of his class objected to the deal which had been struck, they would be able to sue him for compensation. Only at the last minute was the compromise saved by Counsel's writing an Opinion assuring the representative that this could not happen. But in the meantime the deal had very nearly been lost.
	Pressure
4A.	A representative beneficiary may be subject to intimidation. An example of this was a case concerning a sum of money held by former committee members of a working men's club. It was accepted that they were in the position of trustees. The dispute was as to whether the money was held by a dissolved unincorporated club or whether it belonged to the proprietary club, which had been started at some stage under the same name. A representative beneficiary of the members of the old club was the First Defendant, the Second Defendant being the proprietary club now in liquidation and for practical purposes being the brewer who was the principal creditor and who had supplied beer to the club. Eventually a compromise was put forward towards which the representative beneficiary was favourably inclined. But he was threatened in the local community and told that he must not approve any compromise but fight the brewery "tooth and nail". As a result he refused to continue in his role. In this particular case it was impossible because of local feeling to replace him and eventually the Official Solicitor was appointed to represent all the members.
5A.	A representative beneficiary may find himself under pressure in other circumstances. In one case a representative was advised by Counsel to bring an appeal against a first instance decision concerned with the disposition of surplus in the pension scheme of which he was a member. The solicitors acting for the representative beneficiary wished, and indeed needed, to make an application for prospective funding for the appeal. Because of time constraints, they had to lodge a Notice of Appeal before this application could be brought on. They therefore wrote to the solicitors for the employer asking that no steps be taken by them in relation to the appeal, pending the outcome of the funding application. The purpose of that request was so that no costs should be run up unnecessarily and in particular in order that the representative beneficiary should not be vulnerable to an adverse costs order should the appeal not proceed. The solicitors for the employer declined however, and indeed made it clear that not only would they commence work on the appeal but, if it were discontinued, pending the making of a proper funding application to cover the appeal, their client would seek to enforce the cost of that work against the pensioner representative. The appeal (which was successful) would not have proceeded were it not for an emergency application for a funding order to protect the representative beneficiary.
	Appendix 2
	CPR rule 19.7:
	(1)   This rule applies to claims about (a)   the estate of a deceased person; (b)   property subject to a trust; or (c)   the meaning of a document, including a statute (2)   The court may make an order appointing a person to represent any other person or persons in the claim where the person or persons to be represented (a)   are unborn; (b)   cannot be found; (c)   cannot easily be ascertained; or (d)   are a class of persons who have the same interest in a claim and (i)   one or more members of that class are within paragraphs (a), (b) or (c) or (ii)   to appoint a representative would further the overriding objective. (3)   An application for an order under paragraph (2) (a)   may be made by (i)   any person who seeks to be appointed under the order; or (ii)   any party to the claim, and (b)   may be made at any time before or after the claim has started (4)   An application notice for an order under paragraph (2) must be served on (a)   all parties to the claim, if the claim has started; (b)   the person sought to be appointed, if that person is not the applicant or a party to the claim; and (c)   any other person as directed by the court. (5)   The court's approval is required to settle a claim in which a party is acting as a representative under this rule. (6)   The court may approve a settlement where it is satisfied that the settlement is for the benefit of all the represented persons. (7)   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.
	Appendix 3
	Chessels and ors v British Telecommunications plc and ors
	[2001] All ER (D) 332
	Extract from the judgment of Mr Justice Laddie
19J.	After what I understand to have been full argument on each of these three possibilities from Mr Launcelot Henderson QC on behalf of the trustees, Mr Jules Sher QC on behalf of the second and third defendants and Mr Christopher Nugee QC on behalf of the trustees, the judge found in favour of the mutual fallback argument. He held that anyone who was at a BT grade equivalent to executive officer (EO) or above in the civil service was to be treated as being in the equivalent of a mobile grade and therefore entitled to the greater benefits under BTPS. The corollary was that BT employees and former employees below this grade were excluded from the increased benefits. For the purpose of the argument before me, these have been referred to as the "excluded members".
20J.	This decision had an effect which had not been catered for in advance. Both Mr Mowle and Mr Greenwood were or had been in BT employment at grades of EO or above. They were not excluded members and were quite content with the demarcation arrived at by the judge. They have no interest in arguing any further for the interests of excluded members. As a result of this, the excluded members were no longer represented by solicitors and counsel. This was discussed before Jonathan Parker LJ, but no decision was taken as to how to get round the problem.
21J.	When the case came before me earlier this year, the position of the excluded members was discussed. At that time, so I believe, the views of this group of current and former employees, currently assessed to number about 12,000 in total, had not been canvassed. Very much as a stop-gap measure, all the parties before me agreed, or did not resist, the joinder of Mr Edward Cooper as the fourth defendant to represent the excluded members, at least for the time being, for the purpose of considering whether there were grounds for appealing from Jonathan Parker LJ's decision and, if so, for the purpose of applying for that permission.
22J.	It should be pointed out that Mr Cooper is not even a member of BTPS. He is a solicitor who is a partner in Russell Jones & Walker, the solicitors for the second and third defendants. His appointment to represent excluded persons is intended to be short term in the sense that it is intended, if there is to be an appeal, that he will be replaced by a member of BTPS who is from the excluded class. Apparently a number of potential candidates have been found but they have not yet applied to be joined. Whether they will apply is likely to be dependent upon the decision I come to on this application.