![BL-2022-MAN-000036 - [2025] EWHC 2084 (Ch)](https://backend.juristeca.com/files/emisores/logo_O3rEzCI.png){kind=logo}
The submissions for the remaining claimants
The submissions for the remaining claimants
For the remaining claimants, Mr Scher invites the court to order Vincents to pay the remaining claimants’ costs of the application (including both hearings), and for his clients to bear the costs of the amendments (and Vincents’ responsive amendments). His starting point is that costs should follow the event. Vincents sought summary judgment and strike out. That application was unsuccessful. Vincents failed to get the relief it sought. The claim continues.
Secondly, Mr Scher says that it is no answer for Vincents to say that it succeeded in part, because the claimants were obliged to amend their claim. The amendments are not remotely helpful to Vincents. Indeed, the process of refinement has led to Vincents now facing a stronger claim. This is in no way a ‘partial win’ for Vincents: it was a “strategic blunder”. Vincents had opportunistically hoped that it would succeed in defending the claim without the court considering it at a trial, and without Vincents having to give disclosure of key documents. Instead, Vincents is now in a worse position than it was before it made its application.
Thirdly, Mr Scher submits that the second hearing should not have been necessary. After the first judgment was given, following the first hearing, Mr Scher had drafted amendments to the particulars of claim to take into account the comments made by the court, and those made by Vincents in correspondence. Vincents should have agreed to the amendments ultimately permitted by the court. Further:
On 9 May 2024, the court ordered Vincents, within nine weeks, to indicate to what extent it agreed to the claimants’ draft amendments (with reasons given for any disagreement). That date was extended by consent to 22 July 2024.
On 16 July 2024, Vincents commented on the amendments, asking numerous questions, and seeking the claimants’ response, expressly “to assess the extent to which it ought to agree the proposed amendments”.
On 23 July 2024, Vincents said: “For the avoidance of doubt and pending receipt of aresponse to our letter dated 16 July 2024, we do not consent to the draft amended particulars of claim.” (emphasis added)
On 30 July 2024, the remaining claimants’ solicitors responded in detail to Vincents’ letter. That letter concluded: “we would ask you to now confirm to what extent the amendments are agreed”. Vincents sent only a holding response.
On 5 November 2024, the remaining claimants’ solicitors chased for a response to the letter of 30 July 2024. Vincents had still failed to indicate the extent to which the amendments were agreed. Later that day, Vincents’ solicitors responded by saying that they "expect to respond fully to the issues" that week (i.e. by 8 November 2024). They did not so respond.
Instead, on 25 November 2024, in Mr Reid’s witness statement, it became clear that Vincents opposed all of the amendments. Ultimately it lost on practically all of those arguments (with the exceptions mentioned below).
Mr Scher says that had Vincents’ properly engaged with the remaining claimants’ solicitors’ letter of 30 July 2024, and sensibly accepted the majority of the amendments, a compromise position could, and should, have been reached by which the second hearing would have been avoided.
Fourthly, Mr Scher emphasises that the only substantive amendments rejected by the court were the ‘individual advice’ claims and one ‘nexus’ argument. He says that:
The ‘individual advice’ claims were pleaded in response to Vincents’ complaint (articulated in Mr Wilton’s skeleton for the first hearing) that “there is no allegation of any specific advice to an individual client being wrong”.He points out that Vincents had itself raised the issue of “individual advice” in paragraph 32 of its defence.
Days before the second hearing, in Mr Reid’s third witness statement, dated 25 November 2024, Vincents had first objected to the ‘individual advice’ claims on limitation grounds.
Had the limitation point had been raised properly in correspondence, and if there had been proper negotiation concerning the amendments, the ‘individual advice’ claim is unlikely to have been included in any eventually agreed amended particulars of claim. The court’s rejection of the ‘individual advice’ amendments does not detract from Mr Scher’s submission that the second hearing should not have been necessary, as the amendments should have been agreed.
Similarly, the discrete ‘nexus’ argument ultimately rejected by the court would not have been a deal-breaker, had Vincents sought to engage with the amendments in a constructive way.
Fifthly, and relatedly, the costs order should take into account Vincents’ “heavy-handed” conduct of this application. Mr Scher relies upon the following:
Vincents failed to comply with the order of 9 May 2024, requiring it to indicate to what extent it agreed to the claimants’ draft amendments (giving reasons for any disagreement).
Further, the limitation argument was only raised on 25 November 2024, and then only in relation to the ‘individual advice’ claims. The fuller limitation argument was only raised in Mr Wilton’s skeleton argument on 3 December 2024, two days before the second hearing. Between Vincents’ solicitors’ letter of 16 July 2024 (in which the point should properly have been raised) and 3 December 2024 (when it was in fact raised), a number of limitation periods expired, in particular regarding the 76th claimant (who exchanged contracts on 10 August 2018), and the 73rd-74th, 78th, 87th-88th, and 90th claimants (all of whom made payments between 16 July 2018 and 3 December 2018). Of course, Vincents’ limitation argument was largely unsuccessful; but by saving it until counsel’s skeleton argument, Vincents prejudiced the remaining claimants’ ability to respond to it. The court can reasonably infer that this delay was intentional, and was done in order to gain a perceived tactical advantage at the second hearing. That strategy failed.
Vincents’ arguments about case management are opportunistic and self-contradictory. Vincents engaged with, and supported, the ‘lead claimant’ model, in which lead claimants were selected by reference to their particular characteristics. Vincents then argued that this model was unworkable. Vincents’ objective seemed to be a trial of all of the remaining claims, which would be far more expensive for the modestly-resourced remaining claimants. Their solicitors have commented that this is a well-known tactic of insurers.
Vincents’ rash, and surprising, failure to compromise the informal amendment application led to the modestly-resourced remaining claimants having to incur the costs of a second contested hearing. Again, the court can infer that this was intentional – or, at the very least, that Vincents was not approaching this litigation with a view to saving expense, as required by the overriding objective. The court should discourage insurers from pursuing expensive satellite litigation by making a costs order in Vincents’ favour, particularly when its own application was unsuccessful, and when Vincents failed to comply with a court order to gain a perceived tactical advantage in the litigation
For all of these reasons, Mr Scher invites the court to order Vincents to pay the remaining claimants’ costs of its application, including the costs of both hearings, to be assessed if not agreed. Mr Scher acknowledges that the claims of the 79th, 91st, and 93-94th claimants have been compromised, and that they do not seek their costs prior to the settlement agreement. Mr Scher also accepts that the remaining claimants should bear the costs of the amendments, and of Vincents’ response to them.
Mr Scher says that the total costs incurred in respect of the application (excluding the costs of amendment, and excluding also the costs relating to the settled claimants’ claims) are £99,133,38 (inclusive of VAT). The claimants’ first N260, filed on 4 December 2024, calculated the costs up to 15 July 2024 (the date when certain of the claimants compromised their claims) in the sum of £56,089.88 (inclusive of VAT), allowing for a reduction of 28.91% for the settled claims. The remaining claimants’ second N260, also filed on 4 December 2024, calculated their costs from 15 July 2024 to the second hearing in the sum of £46,283.40 (inclusive of VAT). These have since been reduced to £43,043.40 (inclusive of VAT) to account for an agreed reduction in counsel fees to £24,000 (inclusive of VAT). Mr Scher points out that the N260s do not include the cost of the amendments. Accordingly, the total costs claimed by the remaining claimants amount to £99,133.38 (inclusive of VAT), i.e. £56,089.88 plus £43,043.40. The remaining claimants also seek a payment on account of £50,000 (inclusive of VAT).
If, contrary to these submissions, the court should choose to make an order for costs against the remaining claimants, it is invited to defer any assessment of Vincents’ costs until 28 days after the handing down of judgment following the substantive trial of this claim, and not to order any payment on account of costs. It is said that any order for costs to be payable at this stage would put the remaining claimants in a difficult position, and might provide Vincents with the tactical advantage that it sought when it made its application in the first place. The previous comments about the tactics employed by insurers are repeated. A delay in assessing and paying the costs would not unduly prejudice Vincents’ insurer, which is said to be vastly better-resourced than the remaining claimants.
The remaining claimants’ primary position, however, is that Vincents should pay their costs because it was unsuccessful in its strike-out application.