[2025] EWHC 2307 (KB)

There are numerous criticisms made by the court of the claimants’ proposed budgets in the first CMH judgment. The claimants’ team of counsel before us strove to demonstrate that lessons had been learned as a result. It was suggested that this was reflected in two distinct ways. First, by the limitation of costs claimed by some of the non-lead solicitors and by the allocation of work to different parts of the budgets. The second was an attempt to provide further explanation of the figures put forward and to clarify the reasoning and approach of the claimants in relation to their challenges to the defendants’ budgets.

Counsel for various defendants suggested that, in fact, the claimants had learned few, if any, lessons from the first CMH and one went so far as to suggest that the sums claimed in the current budgets represented a collateral attack upon the reasoning in the first judgment.

To some extent, the dispute between the parties as to how to apply the guidance given in the first CMH judgment is linked to the next heading of this decision regarding a comparison of Tranche 2 with Tranche 3. Where, for example, the claimants had been allowed £36.2 million for the Tranche 2 budgets, they were now seeking £52.5 million for Tranche 3. In addition to their general arguments regarding the claimants’ continued “over lawyering”, the defendants queried why the overall budget should be higher for Tranche 3 than it was for Tranche 2 given the issues involved. At least part of the claimants’ response to this challenge was to suggest that the Tranche 2 figure would have been higher if Constable J had been made aware of the extent of the work required in a more detailed and helpfully explanatory fashion.

The claimants’ budget assumptions follow a standard path regardless of whether they relate to the Pan NOx level; Lead and ALGLO; or GLO specific. There is a general description of the work done which is very similar regardless of which level is involved. There is then a table setting out the expected work to be done by the lead solicitors – Pogust Goodhead and Leigh Day (or simply Pogust Goodhead where they are the only lead solicitor in certain GLOs).

For phases such as witness statements, the table sets out the number of hours estimated for each grade of fee earner. For the co-ordination work, the number of hours is set out per week for each grade of fee earner involved. Accordingly, in respect of the co-ordination phase in the Pan NOx level budget, the entry for each grade of fee earner in the Pogust Goodhead row says “1.2 hrs per week = 4.8 hrs a month for 14 months”. The Leigh Day row says that 1 hour or 1.5 hours will be spent - making a total of five hours per week when compared with Pogust Goodhead’s 4.8 hours per week.

We accept that the level of detail provided by the claimants is now of a similar nature to that of the defendants in respect of phases where specific work can be described. We also appreciate that, for the co-ordination work, it is more difficult to describe what is going to be done other than in relatively broad terms. To that extent, the claimants have clearly sought to improve the information before the court in response to the criticism of the first CMH judgment. Nevertheless, the repeated and generalised nature of the text left a gap in correlating that description of the work to be done and the specific amount of time claimed in any particular budget. Regrettably, therefore, the amplified description did not materially assist the court in the manner hoped by the claimants.

More fundamentally, in our view, the provision of further information has not justified the enormous amounts of time claimed even if it has, as Ben Williams KC for the claimants described it, demonstrated how the figures have been reached as a product of the time claimed multiplied by the various hourly rates.

Finally, in respect of lessons learned, we do not criticise the claimants for putting forward standard offers in respect of, for example, Non-ALGLO defendants for various phases. We have not, for the reasons described below, always accepted that approach, but it is a reasonable approach to take and ought not to be criticised.