The High Court has consolidated two related proceedings after ruling that identical parties are not a precondition for consolidation under the applicable court rules.
Mr Justice Kennedy delivered the ex tempore judgment on 13 November 2023. The application sought to consolidate Oliver Sears and Sears Gallery Ltd v Colin Davidson and Colin Davidson Ltd (2020/8200P) with Colin Davidson Ltd v Oliver Sears and Sears Gallery Ltd (2020/976P). All parties supported the application.
The court considered the three criteria set out by the Supreme Court in Duffy v Newsgroup Newspapers Limited: whether the cases raise an important common question of law or fact, whether consolidation would substantially save expense or inconvenience, and whether separate proceedings risk confusion or a miscarriage of justice. The judge said the grounding affidavit showed that all three criteria were prima facie met.
The judgment described the question of whether consolidation is possible when the parties are not identical as one of first impression. Order 49, rule 6 of the Rules of the Superior Courts does not expressly require identical parties, the judge said, and the previous decisions cited had not established such a requirement. The court declined to add one. It noted that differences in parties may make it difficult to satisfy the three criteria in many cases, but found no such difficulty here, particularly given the parties’ consent.
Although the proceedings included different corporate entities, the court said they were essentially between the same parties in substance. The parties agreed that the same issues had to be determined in both actions and that consolidation was the most efficient way to resolve them. The court was satisfied that the criteria were met and ordered consolidation in the terms sought in the motion.
The court reserved the costs of the application. It made no further directions at this time. The pleadings in both actions are closed; the parties submitted that continuing with the existing pleadings could avoid expense or delay. The judge made no direction on pleadings, leaving the parties able to seek further directions if needed. They were also to seek directions on discovery unless they could reach agreement.