Arif & Ors v Berkeley Burke Sipp Administration Ltd

A group litigation order may be desirable where numerous claims raise significant common issues, even though individual liability, causation, loss and other claimant-specific matters remain for determination. The issues should identify common elements of the litigation with sufficient clarity, but may evolve and be refined after the order is made. The court should assess the balance between common and individual issues, the potential savings in cost and court time, and the extent to which decisions on common issues may advance or dispose of claims. Transfer from a regional Business and Property Court to London requires persuasive reasons relating to factors such as complexity, value, importance, resources, fairness or convenience. Regional specialist courts should not be treated as deficient merely because litigation is substantial.

The claimants brought multiple proceedings concerning alleged mis-selling of self-invested pension plans. They applied for a group litigation order under CPR 19.10 and 19.11. The defendant opposed the order and applied to transfer the proceedings from the Bristol District Registry to the Royal Courts of Justice under CPR 30.2(4)(b).

The court considered whether the claims raised sufficiently common issues to justify group litigation, how specifically those issues needed to be formulated, whether publicity should require the defendant to contact its clients, and whether the proceedings would be more fairly and conveniently managed in London.

1. The court was minded to make a group litigation order, subject to the President of the Queen’s Bench Division’s consent. The claims involved a substantial existing and anticipated claimant group and a number of common legal and factual issues. Those issues included the regulatory activities of introducers, the application of FSMA and the Regulated Activities Order, COBS obligations, joint enterprise liability and limitation.

2. The court applied the approach in Tew & Tew and Others v BOS (Shared Application Mortgages No. 1) and Others [2010] EWHC 203 (Ch). GLO issues identify common elements of the litigation and need not determine every issue in every claim. They may be formulated at a relatively high level initially and refined as the litigation progresses. The relevant assessment is the balance between common or related issues and claimant-specific issues, including individual advice, suitability, contributory negligence, loss and any ex turpi causa defence.

3. The proposed requirement that the defendant send notices to its clients was refused. It would require the defendant to invite further claims while liability remained disputed and had not been established. Publicity through the claimants’ solicitors’ websites, the Law Society Gazette and appropriate national or regional newspapers was considered suitable.

4. The transfer application was dismissed so far as it sought transfer to the London Circuit Commercial Court. The judge expressed the view that transfer to the Commercial Court was inappropriate, although that decision was for the Judge in charge of that court. The proceedings did not present complexity, value, importance or resource demands sufficient to justify departure from the regional Business and Property Court structure. The court applied the regionalist ethos reflected in the Briggs Report and considered that the Bristol court had adequate specialist resources.

5. The parties were invited to engage over the formulation of the proposed GLO issues within 14 days of hand-down.