UT (Tax & Chancery) UT/2022/000100 and UT/2022/000107 - [2024] UKUT 00156 (TCC)

The question whether the references should be heard together is to be determined by reference to the Tribunal’s overriding objective, to deal with cases fairly and justly, with rule 5(3) expressly referring to the power to:

I agree with Mr Temple’s submission that this points to ‘common issues’ as being central to the question of consolidation: it generally will be appropriate to consolidate where there is a high degree of overlap in issues between references and will not be appropriate without such overlap.

Mr Goodchild does not oppose the references being heard together, but Mr Burdett does. He is anxious that his case he heard on its own merits. He also submits that there is only a small amount of overlap between the cases; he says the overlap is concerned solely with the nature/terms of the contract between Synergy and Westbury. His reference raises a limitation issue and part of his case relates to his role at Synergy, which is clearly quite separate from anything Mr Goodchild may raise in his reference, as Mr Goodchild was involved with a different business (Westbury). His reference also deals with the Authority’s case that he acted as a director whilst not approved to discharge that function.

I agree with Mr Temple that, whilst the two references need to be determined separately, they arise out of a common factual continuum, namely the way that Synergy clients were given a risk score and then passed to Westbury with a view to being allocated to one of Westbury’s model portfolios. Although there are clear differences in what Westbury and Synergy did (most obviously, Westbury performed its role in relation to individual clients after Synergy had handed them over), the references do relate to the same overall facts and issues (how Synergy clients came to be exposed to investments in TRG and whether those investments were suitable for them). A lot of evidence before the Tribunal will relate to issues common to both references and hearing both references together will enable the Tribunal to reach a better-informed conclusion on the overall factual matrix.

There is an issue about where, under the contract between Westbury and Synergy, responsibility for ensuring that investments were suitable lies. Clearly that issue is better determined after a hearing where the Tribunal can hear all parties. A single hearing will mean that the Tribunal has a fuller picture of the relationship between the two businesses and this will remove the risk of differently constituted tribunals reaching inconsistent conclusions. I note that the fact that defendants in a criminal trial may seek to blame each other is a factor to be considered in deciding whether to order separate trials, but it is not conclusive against a joint trial; R v Hoggins and ors, [1967] 1 WLR 1223.

The current time estimate for a substantive hearing of both references is 8 days. That is not unduly long or onerous for a financial services case in this Tribunal.

In my judgment, the interests of justice and fairness to all parties favour a single hearing of both references, where the Tribunal can come to a single, fully informed conclusion on the factual matrix to the extent it is common to both references. Clearly, it will need to take account of the separate allegations made against each of the Applicants, and there will be factual or other issues relevant only to one reference or the other, but the Tribunal is perfectly capable of keeping the two references separate when it comes to reaching its decision. The effect of hearing the two references together will not produce an unduly long or over-complicated hearing, nor is there any risk (and it was certainly not suggested to me that there is any such risk) of either Applicant being prejudiced in the eyes of the Tribunal because of his reference being heard with the other Applicant’s.

For these reasons I will direct that the two references be case managed and heard together.