HT-2022-000304 - [2025] EWHC 1771 (TCC)

There is a large measure of agreement between the parties in principle as to the nature and scope of the Second Stage trial. It is agreed that the Second Stage trial should include the trial of a number of lead cases, to be agreed by the parties and approved or, in the event of any dispute, determined by the court at the next CMC. It is also agreed that the Second Stage trial should determine (i) issues common to all claimants or claimants within a particular cohort, which will be decided by the court in the lead cases and will be binding on the parties; and (ii) issues that are representative of the claims brought by the claimant cohorts that will be decided by the court in respect of the lead claimants to establish guidance or benchmarks for the other claims in respect of recoverable losses and quantum issues.

The claimants have produced a draft list of issues and selection criteria for the lead claimants, with a proposal that each side should exchange the names of 500 potential individual lead claimants, a questionnaire should be sent to the potential pool of 1,000 and the responses should be used to select the lead individual cases for trial. Initially, the claimants suggested that 50 lead cases could be tried at the Second Stage trial but in oral submissions it was accepted that perhaps 15-20 lead cases might be more realistic.

The defendants agree in principle with the approach but submit that it would be premature for the court to make directions at this stage regarding either the role or purpose of the lead claimants for the Second Stage trial, or the criteria and process for their selection. Their proposal is that the parties should continue to correspond and seek to agree or narrow the issues and directions for the Second Stage trial, with a view to filing agreed or competing proposals by 14 November 2025. Any disputes can then be resolved by the court at a CMC in December 2025.

The court considers that the list of issues and selection criteria can be no more than provisional at this stage, at least until the defendants have served their amended pleading. The court is also cognisant of the gaps and uncertainties in the APOCs provided by some of the claimants. However, the parties have more information than is often the case in group actions at the lead claimant selection stage and the process must start now to ensure that progress is made before the CMC in December 2025.

Accordingly, the court will order as follows:

The parties have reached agreement in principle on this application and agreed that the application should be adjourned with liberty to restore.