[2025] EWHC 2307 (KB)

There were numerous submissions regarding the manpower involved on the claimants’ side in these proceedings. In his opening, Mr Williams described the onerous nature of this litigation on the legal teams. He contrasted the defendants’ separate teams for the 13 GLOs, supplemented by inhouse expertise and “shadow” firms whose presence materialised in their participation in the confidentiality rings. By comparison, the claimants are represented by two lead firms dealing with all of the GLOs on behalf of the claimants. Whilst we are aware of the considerable amount of work done by the parties’ lawyers in these proceedings, there does not appear to be any lack of personnel to be called upon by the lead firms acting for the claimants, judging by the budgets put forward. Indeed, in response to the suggestion that there would not be much work done on Tranche 3 by the relevant personnel until after the PDD Trial had taken place, we were told that there were, in fact, separate teams working on preparing for the Quantum Trial.

Furthermore, the frankly remarkable proposition that at least 30 fee earners would be attending the CMCs, PTR and trial for the claimants suggested no lack of resource. It will come as no surprise to any party that the budget for attendance at these hearings has been considerably reduced. Given the amount of co-ordination costs claimed within the lead firms as well as with other firms, the number of attendees who can deal with any matters arising in addition to the several counsel being instructed ought to be much more restricted.

Another repeated refrain was the challenge to the extent of time claimed by solicitors other than in the lead firms. These came in two categories. The first involved firms who, according to the specific GLO, are part of the steering committee for that GLO. This related to Mercedes, BMW and Vauxhall. The second category concerns other firms instructed by claimants whose claims have become part of the relevant GLO. This category contains firms with a modest number of clients but also some who have clients in virtually every GLO.

The amounts of time claimed by these non-lead firms was significantly reduced at the first CMH. Submissions were made to the effect that there was considerable uncertainty in such firms as to what they were and were not allowed to do (in the sense that only work allowed in the budgets might be recovered from the opponent at the end of the case).

There was a considerable difference between the parties as to how active or passive such firms should be. The claimants referred to the clients’ right to choose their firm of solicitors and the possibility that the lead firms might not have the expertise to deal with a particular client’s claim. They also argued that a non-lead solicitor had a professional obligation to keep themself abreast of developments in the litigation so as to be able to advise their client, particularly when it came to offers of settlement.

The defendants pointed to the terms of the GLOs which restrict the work to be done to the lead firm(s) (or steering committee) and maintained that, as such, no other costs ought to be recoverable. Any costs involved in advising the client about potential settlement should be claimed in the individual costs bill which would be a separate matter. As Jamie Carpenter KC on behalf of Mercedes (and speaking for the defendants generally on this point) described it, the starting point was to allow for one, adequately resourced, firm to do the work. In practice, this might be done by the two lead firms but that should not result in duplication. Work done by any other firm would need to be justified as to why they were best placed to do that work and to ensure that it was not then duplicated by others.

Whilst conceptually, Mr Carpenter’s description has some attraction, the practical application of case management decisions in the GLOs to use two lead firms and / or a steering committee will inevitably result in greater costs being incurred than one well-resourced firm. For example, unless it is going to be said that all firms in a steering committee cannot meet at any point, there are bound to be times claimed by multiple attendees of such meetings. Nevertheless, it is incumbent on such firms to keep such interaction within reasonable bounds and it is likely that the overall time claimed by steering committee firms for dealing with common costs will be compared with a notional amount of time allowed to lead firms to ensure that the additional costs of a steering committee are reasonable.

In respect of the non-lead firms, it seems to us that the common costs claimed by them should be extremely limited. The nub of the work they are asked to do is to look after their client and that work ought to be claimed within the individual costs and not the common costs. That may mean that time spent keeping abreast of developments is not recovered between the parties – much may depend on the extent of that work – but if so, it is a solicitor and client matter, in the same way as if the solicitor is charging an hourly rate which is not fully recovered from the opponent and seeks it from the client instead. This approach seems to us to be more appropriate than one where numerous firms of solicitors are claiming time for familiarising themselves with the litigation thereby incurring costs which are of no benefit to the litigation itself. The only brake upon such work is if the client is likely to pay for it.

This leaves the question of the drafting of the client’s witness statement and individual statement of case. This only applies in the few cases where a claimant has (a) been chosen as a Sample Claimant and (b) instructed a firm which is not one of the lead firms (including steering committee firms, where relevant.) The claimants say that the instructed firm should produce the statement and that the lead firm should then review it for consistency before submitting it with the other Sample Claimants’ witness statement. The same approach would be taken for the individual statement of case. The defendants say that the instructed solicitor should simply alert their client to there being contact from the lead solicitor who will take the statement etc.

We do not think we have to make a formal decision on this point. We are approving a phase total for each phase and not the constituent parts of that phase. Accordingly, either the instructed solicitor or the lead solicitor could take the statement; but the key point is that it should not involve more time than if the statement had been taken by the lead solicitor of a client who had instructed the lead solicitor’s firm. This is the reasonable and proportionate approach between the parties. We were not impressed by the assumptions document reciting numerous reviews and peer-reviews to ensure “consistency” of documents intended to be set out in the party’s own words. The reality of this litigation may be that the witness statements are all processed to the point of near homogeneity but that ought not to be the case. And it certainly should not be encouraged by the court; it is a cost that the party and their solicitor should bear.