Mohammed Arif & Ors v Berkeley Burke SIPP Administration Limited

A court managing group litigation may require a defendant to publicise the group litigation order where its communications could discourage affected investors from joining. The direction should be confined to the class for which dilution of publicity is shown.

The court has no general jurisdiction under Part 18 or a general “cards on the table” principle to order disclosure of a defendant’s financial means or insurance. Such information may be ordered under the case-management power in CPR 3.1(2)(m) only where it could materially affect existing case-management directions. The fact that a defendant may be unable to satisfy a judgment, or may reduce the number of lead claims it can defend, is insufficient where the litigation can proceed on substantially the same directions.

The claimants and Berkeley Burke SIPP Administration Limited were parties to group litigation concerning investments in store pods. The court had previously directed publicity for the group litigation order but declined to require the defendant to contact relevant investors directly.

The claimants sought reconsideration after the defendant circulated a letter and frequently asked questions which did not mention the group litigation order. They also sought a witness statement addressing whether the defendant had insurance or other means to fund the litigation through trial and any appeal. The issues were whether further publicity was required and whether the requested financial information was relevant to case management.

1. Publicity. The letter and FAQs could potentially discourage store-pod investors from joining the group litigation because they omitted any reference to the group litigation order while stating that the defendant would provide further information if developments occurred. In accordance with the overriding objective, the defendant was therefore required in principle to notify the store-pod investors covered by the earlier communication of the group litigation order and the cut-off date for joining.
2. The evidence did not justify extending the direction to investors unconnected with store-pod investments. The further communication was confined to the same circulation list used for the letter of 8 March 2018.
3. Financial information. Part 18 and any general “cards on the table” jurisdiction did not empower the court to order disclosure of the defendant’s financial resources or insurance. The only possible basis was the permissive case-management power in CPR 3.1(2)(m).
4. The decision in XYZ v Various [2013] EWHC 3643 (QB) was materially different. There, the feared inability of a lead defendant to fund the litigation would have required substantial recasting of existing directions, including new sample cases and legal teams. Here there was only one defendant, and its inability to fund the litigation would not lead to materially different case-management directions.
5. The possibility that fewer lead claims might be defended did not justify the order. Reducing the claims below a critical mass could undermine the purpose of group litigation, and litigation costs could not be apportioned with sufficient assurance to identify an appropriate number of trial claims. The application for financial information was refused.

The judgment records an earlier group litigation order and an earlier refusal to require direct notification to investors. The court reconsidered the publicity issue and granted a confined further direction, but refused the application for financial and insurance information.