Various Claimants v MGN Ltd

In managed multi-party litigation, a previously permitted pleading should not be struck out as an afterthought without a material change in circumstances. Further amendments must be considered on their merits; an earlier test-case intention does not freeze the case. The court may exclude issues or allegations where the litigation burden is disproportionate to the likely benefit, but inferential concealment cases require realism because direct evidence may be unavailable. Legal professional privilege protects communications, not the fact of a solicitor’s knowledge. Knowledge may be proved by non-privileged evidence, subject to safeguards at trial. The court may trim repetitive instances, require disclosure, and direct an election of the allegations to be tried.

This first-instance case-management decision concerned a large group litigation against MGN Ltd. The defendant sought to strike out parts of existing pleadings alleging board and Legal Department knowledge of unlawful information gathering, and opposed a proposed generic pleading containing common factual and concealment allegations. The claimants sought permission to adopt the generic pleading. The principal issues were whether the expanded pleadings were abusive or disproportionate, whether privilege prevented allegations about the Legal Department’s knowledge, and how the case should be confined for trial.

1. Disposition. The applications to strike out were largely refused. The proposed generic pleading could be used, subject to clarification of the Legal Department allegations, exclusion of the Milly Dowler example, and limits on the number of concealment incidents taken to trial.
2. Earlier and expanded pleadings. The previously permitted board-knowledge pleading should not be revisited absent a material change in circumstances. The subsequent pleadings did not establish such a change. The intention that Houghton and Leslie would operate as test cases did not prevent later amendments. There was no rule in Henderson v Henderson requiring a party to advance only one version of its case before trial. Amendments in managed litigation remained subject to the usual merits and fairness considerations.
3. Proportionality. The court treated CPR 3.1(2)(k) and CPR 3.4(2)(b) as conferring jurisdiction to exclude issues or strike out pleading material obstructing the just disposal of proceedings. Jameel v Dow Jones [2005] QB 946 supported a proportionality assessment by reference to litigation resources and likely benefit. The generic case was not extravagant merely because it required an inferential case based on accumulated material and imposed substantial work on the defendant. However, trying every similar incident would be disproportionate. Disclosure was therefore to be given on all proposed incidents, after which the claimants were to elect their best five within six weeks. The class of additional incidents was treated as closed.
4. Privilege and the Legal Department. Privilege protects communications and documents, but does not create a general prohibition on investigating what a solicitor knew. The claimants could seek to prove knowledge through other evidence, with the ultimate success of the inference left for trial. The iniquity principle was not decided; its application would require identification of the alleged acts and further evidence. Markings on the Brown witness statement, even if initially capable of being privileged, lost that protection when the document was inspected without an obscuring mechanism.
5. Scope of the pleading. Legal Department knowledge was relevant principally as a possible route to knowledge reaching the Board. The claimants were required to clarify whether particular allegations concerned that route or alleged independent misconduct by the Legal Department. The limitation argument and detailed particularisation objections were left for trial or a request for further information. Existing claimants received permission to adopt the generic pleading, while future claimants could not add material to it without consent or a further court order.