Group Litigation Flashcards
Once a Cat And Dog Chased Big Mean Rats
Outline, Costs, Apportionment, Discretion, Costs Capping, Budgets, Multiple, Rates
Outline
1.CPR 19.22 -
2.CPR PD 19B provides for various things in Group Lit including
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Outline
1.CPR 19.22 -provides for case management of claims with common or related issues of fact or law. Allows court to coordinate the action.
2.CPR PD 19B provides for various things in Group Lit including
* Court can order GLO on own initiative and procedure set out under CPR 3.3 (albeit, usually it is the parties that apply for GLO)
* Set Up of GLO Group Register ( Prerequisite, claimant must first issue a Part 23 claim before can be entered on Group Register i.e. they most opt in/elect to join GLO, at any time b4 of after issue)
* Lead Solicitor
* Multi Track (Every claim will be auto allocated or reallocated (2) Any case management directions already made will be set aside and (3) hearings already fixed will be vacated
* Test Claims - Directions can be made for one or more claims to be test claims
Costs in GLOs
3. CPR 46.6(2) – Sets out 2x Types GLO Costs and Defines
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(i) ;
(ii)
(iii)
Common costs purpose,
Costs in GLOs
3. CPR 46.6(2) – Sets out 2x Types GLO Costs and Defines
* Individual Costs, specific to case run on behalf of individual claim on the group register
* Common Costs, generic to case run on behalf of all the claimants includes:
(i) costs incurred in relation to the GLO issues;
(ii) individual costs incurred in a claim while it is proceeding as a test claim, and
(iii) costs incurred by the lead legal representative in administering the group litigation
Common costs purpose, to protect the litigants from incurring unnecessary costs by enabling parties to take collective steps as part of the group. Costs shared for purposes of keeping costs of each claimed low
Apportionment, R A G M
- COSTS SHARING AGREEMENT -
- Re I L (2020) -
- CPR 46.6(3) – GENERAL RULE –
- A B & O v I O -
- G v G –
- M P S v RBS –
- CPR 46.6(4) - C becomes PP
- CPR 46.6(5) - more than one issue
- CPR 46.6(6) - before claim entered
- CPR 46.6(7) - removed from group register
- CPR PD19B, Para 16 – Costs Judge can
Apportionment
4. COSTS SHARING AGREEMENT - Often claimants in Group litigation will make a cost sharing agreement. If not, the court will make cost sharing order
5. Re Ingenious Litigation (2020) - Guidance on how Court may make costs sharing order
6. CPR 46.6(3) – GENERAL RULE – SEVERAL LIABILITY for equal portion Common Costs, irrespective of when joined group register, unless the court orders otherwise - Any order for common costs against group litigants imposes several liability on each group litigant for an equal proportion of the common costs. Each group litigant is responsible for an equal share of the common costs, unless the court orders otherwise. The reason is that the late joining claimant will receive the benefit of the work on the common issues, already undertaken for the other claimants
7. Andrew Brown & Others v InnovatorOne Plc [ 2012] - On issue of joint or several liability - key Q was what fairness demanded in the circs.
8. Greenwood and others v Goodwin and others [2014] – Confirmed Court has WIDE DISCRETION
9. Trustees of the Mineworkers Pension Scheme v RBS (2014) – default approach to liability not fair due to disparity of values between the different claims. Costs were apportioned by ratio to the claims sizes
10. CPR 46.6(4) - Where a claimant becomes a paying party - in addition to liability for receiving party’s costs, their own individual costs and equal proportion of the common costs.
11. CPR 46.6(5) - Where the court makes an order about costs in relation to any application or hearing which involved –
(a) one or more GLO issues; and
(b) issues relevant only to individual claims,
the court will direct the proportion of the costs that is to relate to common costs and the proportion that is to relate to individual costs.
12. CPR 46.6(6) - Where common costs have been incurred before a claim is entered on the group register, the court may order the group litigant to be liable for a proportion of those costs
13. CPR 46.6(7) - Where a claim is removed from the group register, the court may make an order for costs in that claim which includes a proportion of the common costs incurred up to the date on which the claim is removed from the group register.
14. CPR PD19B, Para 16 – Costs Judge can apportion amounts of common and individual costs if Court not already done so. To be done at or before commencement of detailed assessment
Discretion (Court’s) – Approach to “Between the Parties” - V K B L
- CPR 44.2(2)(a) – General Rule (starting point) -
CPR 44.2(2)(b) -
CPR 44.3 - - V v W –
- K v K -
- B v P -
- L C v A -
Discretion (Court’s) – Approach to “Between the Parties”
15. CPR 44.2(2)(a) – General Rule (starting point) - unsuccessful party will be ordered to pay the costs of the successful party but
CPR 44.2(2)(b) - court may make a different order/wide discretion
CPR 44.3 - Court’s general discretion as to costs and factors to be taken into account when exercising its discretion. will have regard to any attempts by either party to settle the matter, the conduct of the parties and whether a party’s claim has succeeded in whole or in part
16. Various Claimants v Wm Morrison Supermarkets PLC [2018] – Where Claimants succeeded overall but Def succeeded in one material aspect, Def only ordered to pay 40% C’s costs
17. Kupeli and others v Kibris Turk Hava (t/a Cyprus Turkish Airlines) [2018] - Question of ‘who wrote the cheque?’ at end of case (i.e. loser paying damages) too simplistic for determining incidence of costs in group litigation. In this case, Claimant’s lost on a no. of issues and only awarded 33% costs. Also necessary to look at the litigation ‘as a whole’. Fact-specific value judgment.
18. Bates v Post Office Ltd [2019] - The court ordered the defendant to pay 90% of the costs of the common issues trial on the standard basis with a large payment on account due in 21 days. Highlighted the discretion afforded under CPR 46.6 and the importance of addressing cash flow issues in group litigation as allowed interim payment.
19. Lendlease Construction (Europe) Ltd v AECOM Ltd & Anor [2022] - Absent good reason, the party discontinuing will pay the other party’s costs.
Cost Capping Orders
20. D v B -
21. CPR PD 3F, 1.2
22. CPR 3.20(1)
The very existence of costs management orders may be thought to render costs capping orders unnecessary. Arguably such orders may still have a benefit, the benefit of a costs capping order is that it would represent a line in the sand over which costs could not creep unless something exceptional occurred.
Cost Capping Orders
20. Derek Barr v Biffa Waste (2009) - CCO will be made in exceptional circumstances
21. CPR PD 3F, 1.2 any application asap, ideally before or at the first cases management hearing.
22. CPR 3.20(1) states that Part 23 app to made on notice and accompanied by a budget.
The very existence of costs management orders may be thought to render costs capping orders unnecessary. Arguably such orders may still have a benefit, the benefit of a costs capping order is that it would represent a line in the sand over which costs could not creep unless something exceptional occurred.
Budgets (Case Management) when multiple parties - S C V C
- CPR 3.12 (1) and PD19B, 7
- S v B-
- CIP P v G -
- V C v M -
- C I v S R M -
British Weaver v British Airways – factors re costs budgeting
Budgets (Case Management) when multiple parties
23. CPR 3.12 (1) Apply to all multitrack cases inc. group litigation order cases. (PD19B, 7 confirms all GLOs auto allocated to multitrack)
24. Except cases valued over £10million.
25. Sharp v Blank (2015)- But Court always has discretion to order budgeting if just and in accordance with overriding objective.
Common and individual costs tend to be budgeted separately. Where individual costs are budgeted, this tends to be on the basis of a typical or average group litigant (or selection of group litigants). Such budgets (namely, representative budgets) are often drafted with great care, with each anticipated step being explicitly stated.
Specimen budgets may be produced, either typical of whole group or subset - No specific CPR provisions relating to this
26. CIP Properties v Galliford (2014) - Contrary to overriding objective to require multiple budgets
27. Various Claimants v MGN Limited (2016) - parties agreed separate budgets for common costs and system of template budgets for individual costs
President H is limited in costs information relating to budgets in complex high value group actions
28. Re Construction Industry Vetting Information Group v Sir Robert McAlpine (2015), those involved in Group litigation cases should be prepared to address any additional information the court may request in the cost budget to assist in the costs management
British Weaver v British Airways – factors re costs budgeting
Multiple proceedings and additional defendants
29.
L C V M - clarification
- K v FCO - potential future clients
Multiple proceedings and additional defendants
29. No provisions in CPR as to how cost budget should be done when other actions and parties added.
Best course of action is to seek clarification from the court as to whether one budget covering all actions or separate budgets for each action
Lotus Cars V Mecanica (2014) - Failure to seek clarification from court re budgeting requirements, results in parties taking different approaches making it hard for court to review and reach agreement.
30. Kimathi v Foreign and Commonwealth Office (2018), court has power to set budgets for potential future clients that are yet to be added to the proceedings the budget takes effect at whatever point the party is added. Work done will be the same for each client whoever they instruct.
Rates (Hourly)
31. By reference to factors in
Indemnity Principle – must comply
Rates (Hourly)
31. By reference to factors in CPR 44.5(3), normal to grant enhanced hourly rates in Group litigation
Indemnity Principle – must comply
