Weaver & Ors v British Airways Plc (No.2)

Costs budgets must be based on sufficient evidence and must be reasonable and proportionate. Where the evidence does not permit a reliable final decision on whether claimed work is clerical or legal, the issue may be deferred to detailed assessment. A per-capita allowance is not justified merely because standard communications must be sent to numerous clients. The court must examine the actual work involved and the evidential basis for the time claimed. Earlier costs decisions do not require a different approach where their facts differ and they establish no applicable legal or procedural principle.

This was a case-management costs decision in the British Airways data breach group litigation. The court had already determined that individual costs should be budgeted and was required to assess the claimants’ proposed individual costs schedule through the liability phase.

The disputed issues included the appropriate allowances for particular case-handling steps, whether some work was clerical rather than legal, and whether the costs of sending standard update letters could be calculated by multiplying a per-letter allowance by the number of claimants.

1. Clerical and legal work. The court lacked a sound evidential basis to decide finally whether particular future tasks were clerical work or recoverable legal work. Following the approach taken in Motto v Trafigura [2011] EWHC 90201 (Costs), that issue was deferred to detailed assessment. The court nevertheless formed a provisional view that administrative data entry, creating PDFs, sending texts and accounting tasks would ordinarily fall within general overheads, while leaving those items within the budgeting process.
2. Reasonableness of individual allowances. Several claimed allowances were reduced because the evidence and the court’s assessment of the litigation did not justify the time or number of units claimed. Allowances were reduced for questionnaire review, statement-of-truth and lead-claimant work, settlement quantification, payment arrangements, client queries and update letters.
3. Round-robin letters. The generic costs already covered the legal work of drafting common letters. The remaining work was the electronic transmission of those letters to clients whose details were already stored. The claimants provided no evidential basis for assuming that sending each standard letter required one minute of chargeable time. A per-capita approach was therefore neither reasonable nor proportionate, and no sum was allowed under that head.
4. Earlier decisions. The court considered Various Claimants v Morrisons (unreported, 12 January 2017), together with Motto v Trafigura. Their facts were materially different, and neither case established a legal or procedural principle requiring the approach adopted there. The budget was determined on the evidence before this court.

This was a first-instance case-management decision. The judgment records that it followed two earlier hearings in the same costs and case-management conference, including the earlier judgment reported at [2021] EWHC 217 (QB).