Various Claimants v Serco Group PLC

Sampling in complex multi-claimant litigation must serve the overriding objective. The court should select cases that represent common issues and capture differences capable of materially affecting the result. It need not capture every factual variation.

A previously approved sampling structure is not immutable. Material developments may justify changing it, but the court should give appropriate weight to the parties’ reliance on the existing procedural course. Expansion is unjustified where the additional evidence, disclosure and expert work would outweigh the limited benefit of resolving further claims at the sample trial.

The claimants sought compensation under section 90A and Schedule 10A to the Financial Services and Markets Act 2000 for alleged losses relating to Serco shares. The proceedings were ordered to proceed by split trial. Common issues concerning alleged fraud, published information, dishonest delay and related matters were to be tried first, while individual issues including reliance, causation, loss, quantum and limitation were to be determined later using sample claimants.

At the second case management conference the defendant sought either to include all claimants without direct reliance cases in the second trial or to expand the agreed sample. The central issue was whether the existing sampling approach remained proportionate and adequately representative.

1. Application of sampling approach. The court approved the agreed group of sample claimants under paragraph 14(1) of the first case management order. Sampling remained appropriate for both direct and indirect reliance claims.
2. Overriding objective. The court was not bound by the earlier case management decision where the shape of the case had materially developed. It nevertheless had to give appropriate weight to the parties’ having proceeded for a year on the existing course. The question was whether a departure remained justified in the current circumstances.
3. Representativeness and proportionality. A sample should capture facts capable of making a material difference and differentiating claimants in a marked way. It need not capture every individual distinction. The existing sample was appropriately balanced and covered the relevant market-reliance and dishonest-delay issues.
4. Refusal to enlarge the sample. Including all indirect-reliance claimants would add substantial claimants and funds, increase disclosure and evidence burdens, and risk detracting from a just, effective and cost-efficient resolution. Differences concerning limitation under section 32(1)(b) of the Limitation Act 1980, price reliance and quantification were not sufficiently slight to justify the proposed expansion.
5. The proposed additional claimants were not required merely because their claims were large, involved different investment strategies or managers, or might provide a separate opportunity to appeal a particular reliance issue. Those features added insufficient guidance beyond the existing sample.

The approved sample comprised MC2, MC3, MC4, MC9, MC12, MC13 and MC22-23, including the funds or accounts identified in the papers.