[2025] EWHC 2972 (Comm)

Given the total number of claimants, a proportionate approach must be taken to the issue of the date by which individual or groups of claimants had sufficient knowledge to make their claims. It is submitted by Mr Howe KC for the claimants that it would be sensible for the court to include an order regarding sampling, which I agree should be done.

It was thought that there might be a dispute between the parties as to the principle on which sampling should be carried out for the purpose of the preliminary issue. In fact, the issue between the parties is very narrow indeed.

The first issue concerns the size of the sample group. The claimants suggest that 10 claimants should be used by way of sampling; those individuals should be required to give disclosure in relation to the information they had, on the basis of which they knew, or should have known, that they had a worthwhile claim so as to give them sufficient confidence to justify embarking on the preliminaries to issuing the claim. The defendants suggest that a wider sample pool should be taken of 20.

The second issue is the basis on which the sample would be used by the court to determine the preliminary issue. The claimants suggest that it should be illustrative, i.e. not automatically binding. The defendants submit that it should be representative, rather than simply illustrative; the claimants should not be permitted to have a second bite at the cherry if the preliminary issue did not go their way.

The court considers that the appropriate size of the sample should be 20. The samples should be representative, so that the findings of the court will apply to all of the claimants, but that the decision will not be automatically binding in the sense of being automatically extrapolated to every single claimant.

The court proposes that, following the judgment on the 20 sample cases, the parties would be invited to provide written and oral submissions as to the mechanism of extrapolation and whether or not any different findings should be required in relation to any particular claimant group. The purpose of the exercise is to provide a final decision by the court as to the date by which the claimants had actual or constructive knowledge for the purposes of section 32. However, the court could find that certain categories of claimant, or claimants in particular circumstances, had relevant knowledge by different dates. Therefore, it leaves open the possibility that the decision by the court on this issue might not automatically result in all claimants being within time or statute-barred.

In my view, the best way of dealing with it is to make an order that there be a representative sample of 20 claimants for the purposes of disclosure and for the purposes of the preliminary issue. But, once the court has decided on the legal and factual analysis following the preliminary issue hearing, the parties will have a further opportunity to address the court before any order is made in relation to the preliminary issue.

My reasons for selecting 20 rather than 10 sample claimants are as follows. Firstly, we are dealing with a cohort of over 13,000 claimants. Therefore, a sample of 20 does not seem to be excessive. It is acknowledged that the more samples that are selected, the greater the workload, the increased possibly of duplication and the increased cost load on the claimants in particular. However, that has to be judged against the overall value of the claim, which is substantial on any view.

Secondly, it may be that some of the claimants who were selected no longer have their documents. They may think that they have them but, when they go to look for them, they cannot find them. It may be that when some individual claimants are asked to provide documents, they get cold feet and decide to withdraw from the case. It may be that they discontinue from the case for other reasons. I accept that it is statistically unlikely that the full cohort might disappear. Nonetheless, a claimant who has agreed to sign up to a class action is not the same as a claimant who is then prepared, when asked, to produce all relevant documentation and, potentially give evidence in court. Therefore, it may well be that some of the claimants decide they no longer wish to participate, at least, as sample claimants.

In those circumstances, it would be unfortunate if we had an initial sample of 10 and that rather rapidly dwindled to five or six. I consider that the additional cost and work burden is more than compensated for by the security of having a sensible spread of claimants at the outset.

So, for all those reasons, I will order the preliminary issue as set out in the draft order, with an estimate of five days. The sampling group will be a representative sample of 20 claimants, to be selected as to 10 by the claimants and 10 by the defendants.