Mark Allsopp v Bayerische Motoren Werke Akteingesellschaft & Ors

A Group Litigation Order may include claims acquired outside England and Wales where the claims raise common or related issues and can be managed consistently with related group litigation. The court may leave questions of applicable foreign law for directions at the first case management conference.

An unless order should not be imposed for purely administrative or housekeeping purposes without evidence of likely non-compliance or other justification. Information required from group claimants must be necessary and proportionate to formulating, valuing and selecting lead claims. The court should avoid costly information-gathering of limited practical value.

The claimants sought a Group Litigation Order concerning alleged defeat devices and emissions-related claims involving BMW diesel vehicles. The application concerned approximately 41,225 claimants on 13 claim forms, with substantially more claims expected.

The parties agreed that the litigation raised common or related issues. Disputes remained about the geographical scope of acquisition, an unless order for failure to serve schedules of information, the treatment of common costs where there were joint lead solicitors, and whether vehicle mileage should be included in those schedules.

The court therefore had to determine the appropriate terms of the proposed Group Litigation Order and the information and costs directions required for managing the litigation.

1. Group Litigation Order. The requirements of CPR 19.22 were met because the claims raised numerous common or related issues of fact and law. The President of the King’s Bench Division consented to the order.
2. Place of acquisition. The Standard Minimum Requirement was framed by reference to vehicles acquired in the United Kingdom or Channel Islands. Although the defendants’ concern about applicable foreign law had force, consistency with the related Mercedes group litigation justified adopting the broader wording. The Managing Judge could determine at the first CMC whether claims governed by non-English law should remain within the group and could give appropriate directions.
3. Unless order. The proposed automatic strike-out sanction for failure to serve a compliant schedule of information was refused. Following Marcan Shipping, a conditional strike-out order is a powerful case-management measure and requires evidence of likely non-compliance or other justification. It should not be imposed merely for housekeeping purposes.
4. Common costs. No direction was made requiring joint lead solicitors to be treated as one firm for assessment purposes. Any duplication or disproportionate expenditure could be addressed on detailed assessment under CPR 44.3. The proposed wording would serve no useful purpose and might generate further disputes.
5. Schedules of information. The court accepted the general approach in Cavallari and the observations in Alame concerning information needed to identify and select lead claims. The request for vehicle mileage was refused because it was not necessary at that stage, was of limited value given the pleaded measure of loss, and would impose unnecessary cost. The issue could be revisited before the Managing Judge.
6. The Group Litigation Order was made in the approved terms. The costs of the application were costs in the case, and the parties had permission to restore.

First-instance decision on an application for a Group Litigation Order. No prior appellate decision was stated in the judgment.