McClean & Ors v Thornhill

Where numerous claims raise substantially common issues, the court may direct a sample-claimant trial under its case-management powers and the overriding objective. Common issues may be determined conclusively for all claimants, while findings on individual issues provide non-binding guidance. The selection should include sufficient factual variation to illuminate the issues, but should remain proportionate and manageable. Variations relevant only to individual guidance do not justify multiplying every possible combination of facts, schemes and advisers. The court must balance the utility of wider disclosure and factual coverage against the burden imposed on claimants and the need for an efficient trial.

The claimants, numbering 110, brought claims involving substantially common issues concerning investment schemes and alleged duties of care owed by the defendant. The parties agreed that the first full trial should concern sample claimants, but disputed the number of sample claimants, the size of the selection pool, the characteristics to be represented, and the scope of documents to be produced.

The court was asked to give case-management directions, including directions concerning reliance, independent advice, limitation issues and communications with advisers.

1. The court had broad case-management powers, exercised in furtherance of the overriding objective. The procedure had to remain fair to the defendant, but the defendant was not entitled to preference merely because a full trial of all 110 claims was the default position.
2. The principal purpose of sample claims was to determine common issues. The court’s determination of those issues would bind all claimants. Findings on individual issues would not bind other claimants, but should provide useful guidance. If the reasonableness of each claimant’s reliance were legally relevant to the existence of a duty, that aspect would cease to be wholly common. The court declined to decide that legal question at this interlocutory stage.
3. Selection had to balance the benefit of obtaining guidance across varied factual patterns against the need for a manageable trial. The court preferred coverage of the three schemes, the three agreed reliance categories and the three principal IFAs, with representation of claimants who had and had not obtained independent advice. It directed ten sample claimants.
4. Disclosure for the selection pool had to be proportionate. Communications with IFAs or other advisers before investment could be required because they might illuminate reliance and imposed a relatively limited burden. Wider disclosure concerning limitation was refused. In relation to Limitation Act 1980, section 14 A, advice actually received and correspondence concerning HMRC enquiries were more likely to assist than broad communications with advisers or general scheme correspondence.
5. The court directed a pool of 30 claimants, with each side selecting 15, and five sample claimants. The court retained power to adjust the number of sample claimants upwards or downwards at a later stage. Preferences for claimants invested in more than one scheme or with larger investments were not included.