CHRISTOPHER BERNARD UPHAM & ORS v HSBC UK BANK PLC

Where separately constituted claims are case-managed and tried together, that arrangement does not by itself make the claimants participants in a common venture or require them to share adverse costs. The court retains discretion to determine, after the facts and outcome are known, which costs are common, which claimants benefited from them, and whether apportionment is fair. A provisional order is inappropriate where it would provide no practical assistance with time recording, security for costs or assessment of individual liability, and might constrain the court’s later discretion.

Two groups of claimants brought separate claims against HSBC concerning a film finance scheme. The claims involved different causes of action but shared issues and were being case-managed and tried together. The parties had agreed that claimants within each cohort would bear their own costs, that adverse costs liability would be several, and that individual liability would generally be apportioned by reference to investment.

The Stewarts Claimants sought an order that common costs incurred by HSBC across the cohorts should be recoverable from liable claimants on a pro rata basis. The Edwin Coe Claimants opposed a present order. The issue was whether the court should determine the recoverability and apportionment of such costs before trial.

1. Application refused. The court declined to make an order at that stage concerning recovery of HSBC’s common costs from claimants across the two cohorts.
2. The court had a discretion as to the appropriate costs order after trial. It would then determine whether costs were common, which claimants were interested in the relevant issue, and whether costs should be borne across the cohorts. A common issue did not necessarily mean that all claimants would be liable for costs relating to it, since the factual matters relied on by each cohort might be cohort-specific.
3. Joint case management and a single trial did not establish that the cohorts had agreed to share the risks and rewards of their claims. The claims remained separate and arose from different causes of action. Cooperation between representatives might, in some circumstances, make cross-cohort apportionment fair, but there was no universal rule requiring it.
4. The authorities relied on by the parties did not require a present order. Rowe v Ingenious Media Holdings plc was concerned with a different setting in which claimants embarked on a common venture, while Greenwood v RBS involved a Group Litigation Order. Neither authority constituted binding dicta requiring pro rata sharing in these proceedings.
5. A provisional order would not materially assist time recording, security for costs or individual assessment. The relevant common costs and liable claimants could only be identified properly once the proceedings had developed and the court knew the facts and circumstances. Refusing an order then did not prevent a later order after trial.

First instance decision. No appellate history was stated in the judgment.