KB 2023 004108 - [2025] EWHC 1824 (KB)

Returning to the County Court claims, those proceedings had been stayed pending determination of the appeal; at a hearing before HHJ Backhouse on 20-21 March 2023, the stay was lifted, various applications addressed, and directions given for future case management of the claims.

For the claimants, an application had been made for disclosure of the information relied on in the creation of JS1. That was refused, on the basis that the information in question was already in the possession of Ersan (JS1 having been drawn up by reference to documents previously disclosed by the claimants); it was, however, noted, that:

“49 ... the defendants have offered to provide a revised schedule containing Ersans’ reference number for each claimant; that in my judgment will assist Ersans to do [the exercise of checking JS1] if they want to.”

This pseudonymisation of the names referenced in JS1 was recorded in HHJ Backhouse’s order from the 20-21 March 2023 hearing and a further version of JS1 was served on 31 March 2023, with the name of each individual replaced by Ersan’s reference number.

Addressing the practical question of how the evidence contained in JS1 would be adduced, HHJ Backhouse observed:

“39.

... Mr Stevens, who still works as a solicitor for another firm, will need to give evidence on at least a few occasions. As [counsel for the claimants] rightly says, after a small number of occasions there are likely to be sufficient judgments to enable Mr Stevens not to be called again and one of the perhaps small elements of co-operation which has been offered is that the claimants agree, and I would like this to be recited in the order, that they will not apply in any other claim to debar Mr Stevens’ evidence. ...”

The assurance thus given to HHJ Backhouse was duly included as a recital to the order, in the following terms (“the Ersan undertaking”):

“AND UPON it being recorded that Ersan & Co have, through their Counsel, given an undertaking to the Court that they will not make further applications to debar the Defendants or other insurers represented by DWF LLP from relying on the witness statement of James Stevens dated 18 June 2021 containing similar fact evidence.”

As for where matters now stand in relation to the Ersan claims before the County Court, I am told that the particular claims that were the subject of the appeal to the High Court have since been discontinued, although contentions as to fundamental dishonesty remain to be determined. More generally, Ersan claims have now been reserved to HHJ Saunders, who, by order of 26 October 2023, directed that they are to progress via a lead claimant, with the other claims being stayed; the plea of fundamental dishonesty advanced by the insurers will thus be tried as part of that lead claim. JS1 and JS2 will be relied upon, albeit that names have been replaced by Ersan reference numbers in the dataset exhibited to JS1. Mr Stevens will attend trial for questioning and submissions as to the cogency of JS1 and its implications for the RTA claims can thus be tested as part of the lead claim.

On 29 July 2024, an application was, however, made for the lead claim to be stayed pending determination of the claimants’ claims before the High Court (the claims before me). That application was refused pursuant to an order of HHJ Bloom dated 17 October 2024. An appeal was lodged on the basis (relevantly) that HHJ Bloom had erred in law in finding the lead claimant was in any way bound or affected by the undertaking recorded in the order from the hearing on 20-21 March 2023. In refusing the application for permission to appeal, by order of 17 March 2025, Constable J reasoned as follows:

“9.

... The background to the undertaking was the application during which the claimants chose not to take any point on GDPR. The undertaking was given by the firm representing the claimants and in the context of the claimants (and other claimants’) cases being managed by the Court.

10.

It was therefore on the basis of the undertaking that the judge concluded that the central issue in the HC action was not directly relevant to these proceedings. The breadth of the undertaking ([and] its applicability) was debated during the application, and it is noted that the appeal does not allege that HHJ Bloom was wrong in her construction of the undertaking. The second ground of appeal merely asserts that it was irrelevant ....

11.

In any event, in the context of the number of related cases before the judges at Central London County Court in which the same Witness Statement was being relied upon by the Defendants, and in respect of which all the Claimants were being represented by [Ersan], HHJ Bloom was plainly correct that the undertaking extended beyond not making applications in the 5 cases that HHJ Backhouse had been considering (and in which the applications to debar had already been refused). If that was the [extent] of the undertaking, it would have been meaningless. On the (correct) assumption by HHJ Bloom, therefore, that the undertaking by [Ersan] meant that in the present case there could be no application to debar the Defendants from relying upon the Witness Statement on grounds of GDPR, this was a relevant factor which the judge was entitled to take into account. ....”

For completeness, I also note that an application was made in the County Court proceedings for HHJ Saunders to recuse himself from hearing the Ersan claims. That application was refused on 6 June 2024, and permission to appeal was refused on 16 August 2024 by Farby J, who certified the application as being totally without merit.