“22. On my reading of the authorities (including Stone Toms) what is really being said is that the judge must do the best that he or she can, with the materials available to him or her. In Stone Toms it so happened that it was possible for the judge to make quite a detailed assessment because of the stage at which apportionment arose. The question arose at the end of a trial in relation to which one defendant had made a payment before trial. The judge had heard 67 days of evidence and delivered two judgments. He was therefore admirably placed to conduct a fairly detailed apportionment exercise. 23. But this is not like for like with the current case. Firstly it concerned an apportionment of a payment in, and therefore there was more obviously a role for the Court to play. Secondly it concerned a claim which was at an end. Indeed none of the cases to which I have been directed concerns a situation such as the present one where an apportionment is between a completed and an incomplete phase of the litigation. Here what I face is an information imbalance, in that I know a good deal about the Phase 1 issues but next to nothing about the Phase 2 issues. It seems to me that there are two possibilities open to me: to accept the Claimant’s apportionment of the monies it has already received (subject to any necessary oversight) or to make a broad brush assessment of my own.”
“26. I am not required to attempt what must necessarily be a very approximate and unreliable process of assessment myself, but am entitled to accept the Claimant’s appropriation of part of the monies to a separate claim on a pro rata basis so long as that claim is not “obviously unsustainable”
“21. … I cannot accept that what is being suggested is that in a situation such as the present I should effectively be putting this question off pending an assessment of the merits of the as yet rather undeveloped Phase 2 issues. This would be not only to encourage satellite litigation, but also satellite litigation which by its very nature would risk different conclusions to the final trial. Nor can I accept that absent full materials being tendered by the Claimant the correct approach is simply to refuse apportionment of a payment which on its face is referable to concurrent claims.”
“20. The Judge erred in law in refusing to order disclosure by FMCP of the relevant details of its recoveries from, inter alios, Mr Bessot, Ms Sjøvaag, and Mr Haggiagi, and for holding that it was for FMCP to choose how to allocate recoveries from the other defendants subject only to the threshold of the allocation not being ‘obviously unsustainable’” (CJ §§8-26), “21. The Judge erred in law in deciding that the allocation contended for by FMCP was not ‘obviously unsustainable’”
“… whether the payer is out of pocket or has recouped his outlay from other sources is entirely irrelevant. The payee has been unjustly enriched by receiving and retaining money he has received from the payer to which he has no right. He does not cease to be unjustly enriched because the claimant is not out of pocket. His obligation to return the money is not based on any loss the payer may have sustained …”
“The principle appears to be that if a plaintiff who receives payment from one tortfeasor establishes an additional separate claim against that tortfeasor, the payment is allocated first to that claim, and credit must be given in favour of the second tortfeasor only for the excess necessarily referable to the overlapping claim”
“in a case where a trial judge has sat through a trial and therefore is well placed to form a view as to whether or not particular claims would or would not have succeeded, then the judge ought to proceed on the basis of the view which he or she had of the claims”