Various Claimants v MGN Ltd

In managed multi-claimant litigation, amendments should be controlled by proportionate case management. Material disclosed only after the original pleading may justify amendment and departure from the usual costs order, particularly where covert conduct made earlier pleading impossible. However, relevance remains fact-sensitive and claimants must identify precisely how each item will advance the case. Courts may permit amendments subject to explanatory pleading, costs reservations and later review. Newly added articles should receive a brief merits screen: plainly unsustainable material may be excluded, but the benefit of reasonable doubt should go to the claimant. Existing claims need not be retrospectively certified merely because an amendment is made, although new claims require compliance with the relevant certification order.

Twenty-nine claimants in existing phone-hacking and unlawful-information-gathering litigation applied to amend their Particulars of Claim following further disclosure, especially of private-investigator material, payment records, palm-pilot entries, contact lists and additional articles. Eight cases were selected as samples so that generic principles could be applied across the litigation.

The applications raised issues concerning out-of-period associate material, public-domain certification, additional associates and articles, the pleading of disclosed records, the costs of amendments and the retrospective performance of an asterisk exercise.

1. Out-of-period material. Permission was granted to plead invoices and contribution requests outside a defined period of association, but each item had to be accompanied by a separate explanation of its alleged relevance. Timing was not the sole touchstone; relevance could include evidence of prior interest, access to information, continuing contact or a wider pattern. The period of association had first to be properly defined. The claimants’ costs were subject to a presumption against recovery, while the defendant’s costs were reserved.
2. Certification. The earlier order requiring certification that claimants had not put pleaded private information into the public domain applied to future claims and claims added by amendment. It did not require retrospective certification of claims already pleaded before that order.
3. Costs of amendments. The usual rule that the amending party pays the costs of amendment was not inevitable. Where important new information emerged only through disclosure in covert-information-gathering litigation, the rationale for the usual rule might not apply. Costs of adding associates were reserved. Costs of pleading additional disclosed records were costs in the case. Costs of adding articles triggered by an extended disclosure period or review were payable by the claimants.
4. Article amendments. The court should conduct a proportionate, quick review rather than an exhaustive merits hearing. Articles plainly incapable of supporting a viable privacy claim could be refused, but anything less than obvious should be allowed, with the benefit of doubt going to the claimant.
5. The retrospective asterisk exercise was voluntary provision of particulars, not an amendment attracting an immediate costs order. Its costs remained part of the claimants’ costs to be assessed later. The detailed consequential arrangements were left for further directions.

This was a first-instance case-management judgment. The judgment referred to earlier orders and decisions in the litigation, including [2019] EWHC 2122 (Ch) and an order dated 31 January 2020, but no appeal was determined.