[2025] EWHC 2307 (KB)

We have already made mention of the two and a half dozen fee earners budgeted to attend these hearings on behalf of the claimants. Nine were said to be the core team who would be present at court. The other twenty one would be remote but with the benefit of the real time transcription. This was said by Mr Teasdale for the claimants, with an admirably straight face, to be necessary in order to deal immediately with any matters arising. Such an approach is plainly not realistic: nine members of a team should be more than ample to deal with any points arising and the need for any “full time” remote attendance is hard to discern.

The “lived experience” of the parties in dealing with the CMCs in Tranche 2 was described by Mr Shires, one of the claimants’ counsel in the substantive proceedings, as well as by various members of the claimants’ costs counsel team. They were described as “mammoth undertakings” which involved considerable amounts of work for weeks leading up to the hearing. The complexity of the issues involved had led to comparatively simple matters, such as the agreement of the terms of the resulting order, taking several months to finalise.

The defendants’ response was that the Tranche 3 CMCs were unlikely to be any more heavyweight than the Tranche 2 CMCs and, as such, the allowance of £450,000 per CMC allowed by the first CMO ought to be sufficient here. In terms of where the budgeted sum should be allocated, it should be at the Pan NOx level for the claimants. Whilst the defendants accepted that the CMCs dealt with some GLO specific matters, it was impossible to forecast what they might be and it was therefore more appropriate to put the sum into the overarching budget. Whilst the claimants did not disagree strongly with this argument, they did make the point that to do so might well be storing up difficulties later on in dividing such costs should some GLOs settle and others not.

We take the view that the budgeted sum should be in the Pan NOx budget for the reason given by the defendants. The re-allocation of costs between the various budgets, as well as between common and individual costs, may well prove to be fertile ground for challenges in detailed assessment proceedings if the parties wish to make it so and there is nothing practical that can be done to prevent that occurring at this stage. Allocation to specific GLOs would simply mean the potential for arguments about moving costs into other budgets later where the CMC costs turned out to be not as forecast.

As was made plain during the hearing, the court has considerable sympathy with the parties in the amount of work they have had to put in to making the CMCs successful. But, equally, the court expressed some scepticism that the Tranche 3 CMCs will be as complex as Tranche 2, bearing in mind the need at that stage to deal with matters such as the confidentiality ring arrangements. Having reflected on the submissions, we have come to the conclusion that both sides’ costs in these phases are unreasonably high.

The Tranche 3 case management hearings should certainly not be longer or more complicated than the Tranche 2 ones. Tranche 2 has had a number of features which will not afflict Tranche 3. The first of those was establishing productive working relationships across the claimant and defendant teams. The early part of the case was rendered more difficult by confrontational tactics which led to delays and quite a lot of attempts to shift blame for lack of progress. That occupied much time and cost. It has however been (happily) very much ameliorated as the case has progressed.

The second is the complication of the combined Sample Vehicle and testing regimes, including the difficulties as to acquiring Sample Vehicles, agreeing testing protocols (including the technicalities of rollbacks) and making suitable arrangements for testing. While it is likely that some further testing will be needed for Tranche 3, the parties will benefit from a host of valuable lessons learned on this front in Tranche 2. This will inevitably mean that arranging for testing is, if not simple, at the very least incomparably simpler than the initial exercise.

The third factor is confidentiality. For Tranche 2 a fairly complex CRO had to be established and disputes then had to be conducted as to de-designation. A very large amount of effort was required in relation to both of these aspects. The results should render such issues of minimal impact for Tranche 3. These are not the only extra complicating factors of Tranche 2 CMCs, but they are some of the main ones.

While the claimants may be right that, as matters transpired, the budget for the CMCs probably underestimated the real (and proper) costs of the CMCs, there is currently no sign that the estimate for the Tranche 2 PTR (now just completed) is inadequate.

For the claimants, the Tranche 3 estimated costs sought are £3.3million for the two CMCs and £1.4 million for the PTR. In Tranche 2 the sums allowed were £900,000 collectively for the CMCs and £450,000 for the PTR. For the defendants, the aggregate sums claimed are £3.74 million (£3.15 million allowed for Tranche 2) excluding Mazda and £1.61 million (£1.31 million allowed for Tranche 2) excluding Mazda for the CMCs and PTR respectively.

Overall, the CMC figures and PTR figures on both sides should be slightly lower than those given for the longer and more complicated Tranche 2 trial.

For the claimants, we have allowed £850,000 for the two two-day CMCs. For the one-day PTR, we accept that a simple halving of the CMC figure probably does not provide sufficient preparation time and so we have allowed £300,000.

Comments on the sums allowed in the parties’ Tranche 3 phases are as follows: