[2025] EWHC 2307 (KB)

We have decided that these two phases would be better considered for budgeting purposes at a later point in this litigation. The reasons for so doing differ between the two phases.

The question of expert evidence is to be considered at the CMC in January 2026 and it is plainly the case that there is a fundamental dispute as to whether there should be the expert evidence currently contemplated. In particular, the unusual specialism of consumer behaviour is challenged and we were not entirely clear from the explanations of counsel as to the utility of such evidence. Since the extent of the expert evidence still needs to be determined, we think it would be better to budget that phase once the court has ruled further.

In respect of the ADR / Settlement phase, the claimants have estimated £11 million to be spent between April 2026 and the end of 2026: the defendants have estimated a combined sum of £1.8m. In the first CMH judgment, the court recorded its surprise at the lack of any engagement by the defendants with the possibility of incurring costs in attempting settlement. After some judicial encouragement, sums were allowed and it is hard not to see the figures put forward for Tranche 3, and the very modest assumptions set out, as being the least the defendants considered would avoid further judicial opprobrium.

The concept of budgeting is meant to afford a measure of protection to parties to ensure that their opponents are not going to incur unreasonable and disproportionate costs. In order to achieve this, however, the parties need to coalesce around assumptions for the litigation, even if there is a range of views. Where the parties are so far apart as to what, if anything, may occur next year, we take the view that there is no sensible way of budgeting this phase at this point. If the claimants are right that work in this phase is required, it will result in more incurred than estimated costs if a CMO regarding this phase is agreed or approved at a later date. If the defendants are right that little if any negotiating will take place before the end of the Quantum Trial, then there should be no harm in this phase being left unbudgeted. But if settlements do occur, then the costs will have to be assessed without the protection of a CMO. We propose to re-consider the budgeting of this phase in January alongside the expert reports phase in the Tranche 3 budgets.