“The court may make a GLO where there are or are likely to be a number of claims giving rise to the GLO issues. The multiple parties may be claimants or defendants. (Practice Direction 19B provides the procedure for applying for a GLO where the multiple parties are claimants.)”
“(1) a summary of the nature of the litigation; (2) the number and nature of claims already issued; (3) the number of parties likely to be involved; (4) the common issues of fact or law (the “GLO issues”) that are likely to arise in the litigation; and (5) whether there are any matters that distinguish smaller groups of claims within the wider group.”
“(1) Where a judgment or order is given or made in a claim on the group register in relation to one or more GLO issues– (a) that judgment or order is binding on the parties to all other claims that are on the group register at the time the judgment is given or the order is made unless the court orders otherwise; and (b) the court may give directions as to the extent to which that judgment or order is binding on the parties to any claim which is subsequently entered on the group register.” (a) that judgment or order is binding on the parties to all other claims that are on the group register at the time the judgment is given or the order is made unless the court orders otherwise; and (b) the court may give directions as to the extent to which that judgment or order is binding on the parties to any claim which is subsequently entered on the group register.”
“(a) contain directions about the establishment of a register (the “group register”) on which the claims managed under the GLO will be entered; (b) specify the GLO issues which will identify the claims to be managed as a group under the GLO; (c) specify the court (the “management court”) which will manage the claims on the group register; (d) be made … in the County Court with the consent of the Head of Civil Justice. Such consent will be sought by the court to which the application for the GLO is made.”
“…The adjudication of the claimants’ various claims raises the issues that it raises, not the issues that the claimants would like to say that it raises, or only the issues that they would like to have adjudicated. I must form a view of the extent to which any given issue will arise. It does not cease to arise merely because the claimants would like to run the case without it. True it is that the manner in which the claimants’ Particulars of Claim are formulated relies on the sort of common issues (basically on the bank’s side of the transaction) that I have referred to above, and that they do not go into the circumstances of individual transactions. However, that does not mean that the individual circumstances will not be an issue in these claims. It can be safely predicted, on the basis of the evidence and submissions before me, that if the claims were pleaded out the banks’ Defences would take the point that the actual circumstances rendered the relevant terms, or the relationship, fair because, for example, the claimant in question had sufficient understanding, and the transaction made personal sense for that individual. That those circumstances are capable of being relevant is, in my view, quite plain from the wording of the legislation…”
“… Fairness questions can best be tackled by taking lead cases, or test cases (depending on one’s preferred terminology). Sample cases can be taken which represent various parts of the spectrum. Technically speaking the actual findings of unfairness in those cases will not bind other litigants, whether under a GLO or not, but they will doubtless provide guidance for the disposition of a lot, if not all, the other cases…”
“2. The purpose of taking sample claimants is twofold. First, to ensure that issues that are common to all the claimants' claims can be decided in such a way as to bind them all; and, second, to decide other factual and legal issues where the decision will not necessarily bind other claimants but is likely to give a very clear indication of the way that their cases too will be decided if tried, with the expected consequence that the parties will then be able to settle the remaining claims. 3. It is not, of course, necessary to have very many sample claimants in order to decide common issues. The purpose of a broader selection of sample claimants, beyond what is needed to try the common issues, is to generate sufficiently broad guidance for the likely disposal of all the other claims, whose particular facts will vary, while at the same time not overcomplicating or encumbering or significantly adding to the cost of the trial.”
“In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).”
“…the standard of fairness in a debtor-creditor relationship is a matter for the court, on which it must make its own assessment. Most of the ICOB rules, including those relating to the disclosure of commission, impose hard-edged requirements, whereas the question of fairness involves a large element of forensic judgment. It follows that the question whether the debtor-creditor relationship is fair cannot be the same as the question whether the creditor has complied with the ICOB rules, and the facts which may be relevant to answer it are manifestly different. An altogether wider range of considerations may be relevant to the fairness of the relationship, most of which would not be relevant to the application of the rules. They include the characteristics of the borrower, her sophistication or vulnerability, the facts which she could reasonably be expected to know or assume, the range of choices available to her, and the degree to which the creditor was or should have been aware of these matters.”
“…at some point commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. At what point is difficult to say, but wherever the tipping point may lie the commissions paid in this case are a long way beyond it.”
“A third point which is apparent on the face of the provisions is the breadth and open-ended nature of the assessment required by section 140A. The court is not left entirely at large, as subsection (1) requires the court to decide whether the relationship is unfair to the debtor because of one or more of three specified matters. These three possible causes of unfairness are, however, extremely broad… It would be hard to cast the possible causes of unfairness more broadly than this. What is more, subsection (2) makes it clear that there is no restriction on the matters to which the court may have regard in deciding whether the relationship is unfair to the debtor, provided only that the court thinks them relevant. Subsection (2) also makes it clear that, if any matter is thought relevant, the court not only can but must have regard to it.”
“It follows that application of sections 140A and 140B is bound to be fact-sensitive: even in a world of widespread mis-selling and unfairness, this is not a jurisdiction where, on its proper analysis and application, a single pre-determined criterion will always determine the question of unfairness; nor will one size of remedy fit all cases where the relationship is found to be unfair. It is easy to conceive of cases where allowing a full refund of all premiums (including commissions and profit share) together with interest would be to do more than was required to remedy the causes of the identified unfairness. It is equally easy to conceive of cases where anything short of a full refund will fail to remedy them. That is why the Supreme Court in Plevin while being clear that the commissions paid in that case were a long way beyond the tipping point, were equally clear that the case had to be remitted to the County Court to decide what if any relief under section 140B should be ordered unless that could be agreed.”
“…the legislation also gives the court…the broadest possible remedial discretion in deciding what order, if any, to make under section 140B. Section 140B gives the court an extensive menu of options from which to select but says nothing at all about how this selection may or should be made. On the face of the legislation the court’s discretion is entirely unfettered…”
“The guidance to be derived from these cases includes the following: (1) Interest is awarded to compensate claimants for being kept out of money which ought to have been paid to them rather than as compensation for damage done or to deprive defendants of profit they may have made from the use of the money. (2) This is a question to be approached broadly. The court will consider the position of persons with the claimants' general attributes, but will not have regard to claimants' particular attributes or any special position in which they may have been. … (5) Many claimants will not fall clearly into a category of those who would have borrowed or those who would have put money on deposit and a fair rate for them may often fall somewhere between those two rates.”
“47. Second, although the question what reasonable diligence requires may have to be asked at two distinct stages, (1) whether there is anything to put the claimant on notice of a need to investigate and (2) what a reasonably diligent investigation would then reveal, there is a single statutory issue, which is whether the claimant could with reasonable diligence have discovered (in this case) the concealment. Although some of the cases have spoken in terms of reasonable diligence only being required once the claimant is on notice that there is something to investigate (the "trigger"), it is more accurate to say that the requirement of reasonable diligence applies throughout. At the first stage the claimant must be reasonably attentive so that he becomes aware (or is treated as becoming aware) of the things which a reasonably attentive person in his position would learn. At the second stage, he is taken to know those things which a reasonably diligent investigation would then reveal. Both questions are questions of fact and will depend on the evidence. To that extent, an element of uncertainty is inherent in the section. 48. Third, while the use of the words "could with reasonable diligence" make clear that the question is objective, in the sense that the section is concerned with what the claimant could have learned and not merely with what he did in fact learn, the question remains what the claimant (or in the terminology of the section, "the plaintiff") could have learned if he had exercised such reasonable diligence. That must refer to the actual claimant, in this case OTC, and not to some hypothetical claimant.”
“…Expressing the point quite loosely, one would have thought that the greater the preponderance of common or related issues over claimant-specific ones, the greater the chance of a GLO being made; if only because of the greater likelihood of a significant saving of court time and cost if more decisions can be made at the group level which will bind claimants across the board. Conversely, it seems to me that there will be cases where an initial attraction to a GLO, created by the presence of numerous litigants, may quickly be dispelled by the realisation that the sum of the separate parts (the individual circumstances pertaining to each litigant) far exceeds, in terms of demand upon litigation resources, the value of a decision on the points which unite them…”
“Any number of claimants or defendants may be joined as parties to a claim.”
“Right to use one claim form to start two or more claims. A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.”
“62. I have concluded, as already explained, that Abbott was wrong to suggest that 7.3 required the court to apply the real progress test, the real significance test or a requirement that the determination of common issues in a claim by multiple claimants under 19.1 would bind all parties. 63. 19.1 and 7.3 mean what they say. Any number of claimants or defendants may be joined as parties to proceedings, and claimants may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. The court will determine what is convenient according to the facts of every case. There is no test beyond the words of rule 7.3, even if it is clear that cases within the old O15 r4 and cases where common issues will bind all the claimants will obviously be capable of being conveniently disposed of in the same proceedings.”
“50. … All the individual claims demanded a separate evaluation of whether the separate relationship between the claimant and the defendant was unfair within the meaning ofsection 140A of the Consumer Credit Act 1974 . No joint remedy was sought, and each claim was legally distinct and turned on the particular facts of the case, and a finding in one case would not bind the situation in another (see [19]-[22], [36] and [42] of Judge Worster's decision). The facts are quite different here, where there are common issues as the judge found. It seems likely at least that findings on the common issues the judge identified will apply to, and depending on the precise nature of the issue and any further orders made, bind all the claimants.”
“18. First, convenience is not to be judged exclusively from the perspective of the parties. It seems to us legitimate and appropriate also to take into account the convenience and capacities of the court and the court system. This is indeed mandated by the Overriding Objective contained inCPR r.1 which states that cases are to be dealt with justly and at proportionate cost and that this, by r.1(2)(e), "includes, so far as is practicable – allotting to [each individual case] an appropriate share of the court's resources, while taking into account the need to allot resources to other cases". 19. Second, the statutory predecessor ofCPR r.7.3 was RSC O.15 r.5. That rule was phrased in these terms: "(1) If claims in respect of two or more causes of action are included by a plaintiff in the same action…, or if two or more plaintiffs…are parties to the same action, and it appears to the Court that the joinder of causes of action or of parties, as the case may be, may embarrass or delay the trial or is otherwise inconvenient, the Court may order separate trials or make such other order as may be expedient." (Our emphasis)”
“…The directions would, in substance, be identical to the GLO in the Draft Directions Order. The only difference would be that such provisions of the GLO that the Court had determined were inappropriate…would be disregarded.”