Weaver & Ors v British Airways Plc

Variation of a group-litigation cut-off date is a pragmatic case-management decision guided by the overriding objective. The court must balance access to justice and proportionality against the defendant’s legitimate need for certainty about the size of the group, potential exposure, resource allocation and settlement.

Prior agreement or an existing order is relevant and a variation must be justified by a development or feature of the litigation. It does not, however, create an insuperable obstacle where variation would produce a fair outcome. Solicitors’ media advertising aimed at obtaining additional claimants is generally a business overhead and is not recoverable from an unsuccessful defendant. That is distinct from reasonable publicity required by a group litigation order.

This was a case management conference in group litigation arising from a 2018 cyber-attack affecting customer data held on the defendant’s website and mobile application. The claimants alleged breaches of data-protection, contractual and confidence obligations, causing distress, pecuniary loss and loss of control of data.

The court determined two issues: whether to extend the existing cut-off date for entry on the group register, and whether substantial media advertising costs incurred or proposed by the claimants’ solicitors were recoverable in the costs budget.

1. Cut-off date. The decision whether to impose, maintain or vary a group-litigation cut-off date is a pragmatic case-management decision. It must focus on the specific advantages and disadvantages of the proposed date and be guided by the overriding objective in CPR 1.1.
2. A party seeking to vary an existing order or agreement must identify a development or feature justifying the departure. The court must take account of the procedural history and the parties’ reliance on the existing date, but a prior agreement or order is not an insuperable hurdle where the overriding objective and fairness require variation.
3. The court balanced access to justice, proportionality and cost savings against the defendant’s need for reasonable certainty as to the size and extent of the group. That certainty affected resource allocation, assessment of exposure and settlement. Extending the date until one year after the proposed liability trial would create excessive uncertainty. A modest two-month extension, from 3 April to 3 June 2021, was appropriate. Potential claimants were not permanently excluded and could apply to join after the date, subject to the circumstances of their applications.
4. Advertising costs. The media advertising costs incurred and proposed by the claimants’ solicitors were not recoverable. The court applied the reasoning in Motto v Trafigura [2012] 1 WLR 657: expenses incurred in obtaining business are generally solicitors’ overheads rather than costs attributable to, and payable by, the ultimate client or opposing party. The costs were incurred to obtain additional claimants, not pursuant to the reasonable-publicity provision in paragraph 41 of the group litigation order. They therefore fell out of the budget.
5. The claimants’ reliance on Arif v Berkeley Burke [2017] EWHC 3108 (Comm) did not assist, since the specific issue had not been argued there and Motto v Trafigura had not been cited. The court also derived no assistance on the issue of principle from Ross v Owners of the Bowbelle 2 Lloyd’s Reports 196 (Note).

• High Court (Queen’s Bench Division): A group litigation order was made on 4 October 2019. The cut-off date was subsequently extended by consent. Following an order for a split trial at a case management conference on 25 November 2020, the court extended the cut-off date to 3 June 2021 and ruled that the disputed advertising costs were not recoverable.