Allianz Funds Multi-Strategy Trust & Ors v Barclays Bank Plc [2023] EWHC 2015 (Ch)

“Organizers are currently investigating a potential recovery effort for investors against Barclays plc (Barclays) claiming the firm grew market share for its dark pool securities trading facilities, called LX Liquidity Cross (LX), through misrepresentations about how, and for whose protection and benefit, they were operated. On June 25, 2014, the New York State Attorney General (AG) issued a press release about its lawsuit against Barclays and Barclays Capital Inc. (Barclays Capital), the entity through which Barclays operates in the US. In its suit, the AG claimed that contrary to Barclay’s public statements about safeguards to protect clients from predatory high frequency traders, it actually operated the dark pools for its own benefit. The press release caused the price of Barclay’s London exchange listed shares to fall £0.13 per share, wiping out more than £2.08 billion in market capital.”

“Brown Rudnick only recently brought this matter to Woodsford. The deadline is a hard one due to an expiring limitations period – the legal time limit for filing claims. UK law requires certain claims to be filed within 6 years after investors knew or reasonably should have known of the wrongdoing. The Organizers are starting the six years from the June 25, 2014 press release by the AG.”

“Phase 1: This first stage will focus on preserving claims – i.e. preventing them from expiring on June 25, 2020 – by attempting to negotiate an early, out-of-court settlement. This may involve entering into a standstill or tolling agreement with Barclays, suspending the limitations clock, or filing claims in court to ‘perfect’ them (stopping the clock) but delaying serving the complaint on Barclays. Phase 2: If the first stage fails to produce a settlement, the Organizers will file claims in court – if they have not already done so during Stage 1 – and serve the complaint on the Barclays and litigate to resolution. In Phase 1, you will need to provide trade records and proof of your legal or beneficial ownership of them. Proof of reliance may also be required for settlement negotiations. Woodsford has not set a participation on threshold for Phase 1. However, it will only proceed to Phase 2 if certain conditions are met including a group participation rate by claimants totalling 650 million eligible shares.”

“Our clients dealt in Barclays Shares in reasonable reliance on information published by Barclays and suffered loss as a result of untrue and/or misleading statements and/or omissions in such information between 1 January 2011 and 1 February 2016 (the “Relevant Period”), and/or have suffered loss as a result of Barclays’ dishonest delay in publishing such information. Accordingly, those clients have claims against Barclays pursuant to inter alia section 90A of the Financial Services and Markets Act 2000 ("FSMA"), in respect of the matters more particularly described below.”

“2.1 In consideration of the Proposed Claimants agreeing not to issue or serve proceedings in respect of the claims identified in the Letter Before Action against any current or former Barclays director, the Parties hereby agree that: (a) as regards the Proposed Claimants, for all purposes of any Limitation Defence, time will be suspended during the Period; and (b) Barclays will not raise any Limitation Defence against the Proposed Claimants or any of the Proposed Claimants that relies on time running during the Period. 2.2 The suspension of time under this agreement shall continue in force until the earlier of: (a) Four (4) weeks after service of notice by either the Proposed Claimants or Barclays, stating that the running of time is to recommence; (b) the service of legal proceedings on Barclays in connection with the Dispute (whether by way of issuing new proceedings, joinder to existing proceedings, amendments to statements of case incorporating the addition or substitution of a new cause of action or new party and/or parties, third party proceedings or otherwise); or (c) 29 January 2021.”

“This agreement shall be binding on, and enure to the benefit of, the Parties to this agreement, their respective personal representatives, successors and permitted assigns, and any party with the right to bring any of the claims set out in the Letter Before Action for, on behalf of or in place of the Proposed Claimants. References to any Party shall include that Party's personal representatives, successors or permitted assigns, and references to the Proposed Claimants shall include any party with the right to bring any of the claims set out in the Letter Before Action for, on behalf of or in place of a Proposed Claimant. Additional Proposed Claimants may become parties to this Agreement by being added to the Schedule hereto and being notified to Barclays up to and including 11:59 p.m. on 25 June 2020 (notwithstanding for this purpose the provisions in the final sentence of Clause 8.1).”

“We note that your clients include a mix of entities, including funds, trusts and nominees. Indeed, some of your clients do not appear to be legal entities at all. The basis on which they claim to be entitled to pursue the proposed proceedings is therefore unclear – as is the basis on which they say that they acquired, held or disposed of Barclays shares. Like the issues relating to reliance set out in section 4 above, this will be the subject of extensive disclosure from your clients if they decide to press ahead with the proposed claim, including as to the precise basis on which shares were acquired, held or sold; by whom; and whether as legal or beneficial owner, or both.”

“5. Furthermore, it appears that a significant number of the Claimants identified in the Amended Claim Form have been improperly or inadequately identified, and may fall into the categories of “unidentified claimants” articulated by Mr Justice Mann in G4S, including various funds and sub-funds, trusts, and foreign entities. Without further information from you, our client is unable to verify the status of these entities, including whether they have legal personality and/or have the capacity to bring proceedings in their own name. 6. These difficulties are compounded by what appear to be several incorrectly named Claimants, references to the old names of entities whose names have since changed, references to entities which appear from our searches not to exist or to be incorrectly named, and by the use of naming conventions such as “–” which appears to be an attempt to signify some unspecified relationship between two or more entities. 7. We have listed in Schedule 2 to this letter the Claimants in respect of which these concerns apply. Separately in relation to each Claimant, please provide (a) its full legal name (b) its place of incorporation or establishment, and (c) whether you contend that it has separate legal personality and if so the nature thereof. Pending your response, Barclays reserves the right to apply to strike out the claims of the Claimants listed in Schedule 2.”

“Finally, as to the outstanding points that remain, we confirm we are working to resolve these matters as soon as possible, but this inevitably requires liaison with clients and their representatives in various jurisdictions which does introduce unavoidable delays. Finalising this exercise will also then enable us to revert in respect of any specific matters that may need to be addressed in respect of the full legal names of some of the claimants pursuing claims against your client.”

“11. The situation described above was obviously a hopeless basis on which to bring these proceedings. Apart from raising serious questions about the basis on which your firm signed the statements of truth in the Amended Claim Form and the Particulars of Claim, it has real practical consequences. Amongst other things, it directly affects the directions that the Court will be asked to make in due course, in relation to disclosure amongst other things; if, as appears likely, it turns out that many of the “claimants” not only lack title to sue, but do not in fact exist as legal entities, our client risks being left without a costs remedy against them when their “claims” are, inevitably, discontinued or struck out; and without knowing which of the claimants is actually entitled to join in these proceedings it is impossible for our client even to begin to guess at the potential quantum of the claim and for the parties therefore to engage with their on-going obligation to consider alternatives to litigation. 12. Our client obviously awaits your response to the outstanding issues identified in your letter dated 12 July 2021 and the further issues identified above with considerable interest. Absent satisfactory answers and/or proposals for dealing with those “claimants” in whose name these proceedings should never have been brought, including (without limitation) those “claimants” who (a) were never shareholders in the Relevant Period, (b) have been included wrongly “out of an abundance of caution”, (c) have been wrongly identified in the List of Claimants, (d) lack legal personality, and/or (e) were not included in the List of Proposed Claimants in the Standstill Agreement and do not fall within the scope of that Agreement, our client intends to apply to strike out all those “claimants” who appear to have no proper basis for joining in these proceedings and who should therefore never have been included in the List of Claimants. That application self-evidently needs to be determined ahead of any case management conference so that the parties and the Court can make decisions about the future conduct of the proceedings on a sensible and proportionate basis.”

“2. At the risk of falling into the same trap of repetition, as should by now be well known to you and in any event has been made clear by us in correspondence, our recent effort to clarify the identification of the various claimants pursuing the Claim against your client was not the product of any deficiencies in the initial approach. It is instead a consequence of the inherent complexities of (a) the various domestic and international investment structures involved in the holdings of our various clients; and (b) the still developing area of FSMA securities litigation, including those issues recently examined, at some length, in the respective judgments of Mr. Justice Hildyard in Tesco and Mr. Justice Mann in G4S. 3. To this end, we now enclose an updated version of Schedule 2 to our letter dated 12 July 2021, which addresses most of the previously outstanding matters. While there remain a handful of matters still marked in the attached as “outstanding”, these are very much the minority and represent only one part of the overall quantum of the claimants’ claims. We hope to be able to finalise the outstanding matters shortly.”

“23. We note the purported clarification of the remaining Claimants’ legal personality and capacity to pursue their claims in these proceedings in the updated Schedule 2 to your 12 August 2021 letter, under the heading “Nature of Legal Personality/Other”

“Barclays’ Schedule 2 (para 25 of your letter – standing of various trusts) 11. In respect of those Claimants you have identified here as having the status of either Massachusetts Business Trusts or more general trusts, we intend to amend their names as currently set out in the list of claimants to the Amended Claim Form. The proposed formulations of these specific amendments are set out in Schedule 1 hereto. 12. The same conclusion has been reached in respect of claimant #63, which is also a trust. We refer you again to our Schedule 1 for the proposed amendment. 13. As to those claimants you have specifically highlighted here in respect of Retirement Systems in the United States, as already noted above with specific reference to the contradictions in your own correspondence, identifying the correct formulation of a claimant that is both compliant with the local applicable law and English law and procedure is far from a simplistic matter. We are therefore finalising our approach in this regard and will supply you with our proposals very shortly. Barclays’ Schedule 3 (para 26 of your letter – claimant names) 14. In respect of the specific queries identified at paragraph 26 and Schedule 3 of your letter: a. #13 - Amundi Funds II – Multi Asset Conservative. The position of the entities identified at claimants #13 and #14 are again one of the more complex to unravel. It is now apparent that these claimants in fact comprise three distinct groups: (i) funds most properly described as ‘fonds commun de placement’ and therefore without legal personality. Thus Amundi Luxembourg S.A. is the legal party named as responsible; (ii) Amundi Funds SICAV, a standalone legal fund with separate legal personality; and (iii) Amundi Investment Funds SICAV, another standalone legal fund with separate personality. We are presently finalising the naming conventions of these parties and will provide our proposed amendments to you shortly which will clarify the position.”

“We therefore shortly will provide you, in some cases again, with lists of the withdrawals, amendments, or substitutions we propose in this matter, together with an explanation as to the reasons such matters are deemed necessary. We will then invite your client, once again, to confirm its position on such matters i.e. whether it is willing to consent to the various matters being proposed or not. In the event consent is not forthcoming on some or all of our proposals then of course it will be for our client to make the necessary application to the court.”

“In light of how the parties’ correspondence has developed, the purpose of this letter (and its enclosures) is to set out in a consolidated fashion those amendments that our clients have proposed and do propose be made, together with sufficient background detail that should enable your client now to provide its view on, and hopefully to provide its consent to, each such proposed amendment.”

“14. We set out in Schedule 5 hereto, details of those amendments that the Claimants propose be made to the existing names set out in the List of Claimants. 15. For the avoidance of doubt, and to assist with clarity around the Claimants’ proposals, this Schedule 5 is set out in a form which (i) assumes the requested withdrawals addressed above have all been effected; and (ii) identifies all of the other amendments being proposed. 16. We invite your client’s consent to amend the List of Claimants in line with the proposals set out in Schedule 5.”

“German Limited Liability Company acting in the capacity as management company.”

“This amendment is sought to remove mention of these specific funds from the name of this claimant party. At the outset the claimant parties were invited to provide details of their holdings of shares in Barclays on the relevant dates, and to provide details of which entity held such shares. In response this claimant's representatives provided the claimant name that appeared in the schedule to the Claim Form dated November 2020. Subsequently we have been liaising with the claimant's representatives to seek assistance with, amongst other matters, obtaining trade data to help fully identify the extent and nature of the relevant funds' holdings in Barclays Plc shares, gaining a fuller understanding of the relevant investment structures that may be (or may have been) in place, and confirming the nature of the legal entity with the requisite standing to bring proceedings in respect of losses that arise in respect of relevant holdings in Barclays Plc shares. Following these discussions we have clarified that BR's initial understanding of the position of these funds i.e. that claimant No.5 had the requisite standing in respect of a list of funds that included these four subfunds, was incorrect, and that these four funds are in fact subfunds of Allianz Global Investors Fund (Claimant #10 below). The position was still being investigated at the point of issue of the Claim Form (and Amended Claim Form) and thus the course taken then was to include in the Claim Forms reasonable alternative formulations of the parties which it was reasonably suspected had the necessary legal standing to bring action in respect of the losses incurred in the identified subfunds. This approach was adopted to seek to preserve the claim arising in respect of the holdings in the identified subfunds while investigations around specific legal standing remained ongoing. The position has since been clarified and these four funds are now sought to be removed from this claimant name to avoid any confusion.”

“Our client is otherwise not prepared to consent to your clients’ proposed amendments. If your clients wish to pursue them, in whole or in part, they will need to apply for permission to amend and serve supporting evidence explaining the basis on which each amendment is sought to be made. Having regard to the limited information provided to date concerning how the alleged mistakes apparently necessitating the proposed amendments occurred, including (a) the nature of the proposed mistake/amendment; (b) who made the mistake, why and when; (c) how the mistakes were identified and why they were not identified sooner; and (d) an explanation of the general delays caused by the apparent failure on your part properly to identify the entities on whose behalf claims were being brought, our client’s position is that the proposed amendments either do not fall within the scope of CPR 17.4 or CPR 19.5 and/or that the Court should not exercise its discretion to allow them.”

“17.3 However much they may wish things were otherwise, your clients cannot simply ignore the numerous outstanding issues set out above and pretend that the parties and the Court are in a position to list a CMC and consider case management directions up to and including a trial of these proceedings. The correct order of events is as follows: 17.3.1. Your clients must (a) issue, serve and list their application for permission to amend and (b) provide the missing trade data and custody statements/letters to enable our client to identify all those Claimants whose claims are time-barred and, if so advised, apply to strike out the claims concerned. Those applications should, as you accept in relation to your clients’ application, be dealt with before the first CMC. 17.3.2. Separately, your clients should (a) provide their long overdue final response to our client’s 16 September 2021 Part 18 Request and (b) engage with our client’s outstanding 18 January 2022 draft Part 18 Request, the answers to which bear directly on the proposals in your 11 April 2022 letter. Our client cannot begin to consider those proposals in the meantime.”

“In finalising the evidence for the Claimants’ application to amend the List of Claimants in the First Claim (the “Claimants’ Application”), we have noticed some minor issues relating to the List of Claimants in the Second Claim. The proposed amendments relating to the List of Claimants in the Second Claim are set out in Schedule 1 to this letter (the “Second Claim Amendments”). In respect of all claimant names that are sought to be amended in the Second Claim Amendments, we are also seeking to amend the corresponding claimant in the First Claim. As such, the Second Claim Amendments will be dealt with most efficiently by including them in the Claimants’ Application. Our clients therefore remain willing to agree to stay the Second Claim pending the outcome of the Claimants’ Application, provided that such stay is effective for all purposes other than the Second Claim Amendments. We enclose a revised draft of the consent order which incorporates your amendments from 14 June 2022 and shows our further amendments in Tracked Changes.”

“Our clients do not agree to the consent order proposed. Your client’s proposed order is drafted in stricter terms than the order sought in the Defendant’s Application. Furthermore, in our letter dated 31 October 2022 and in previous correspondence, we explained the reasons why it is difficult for the claimants to commit to a specific timetable for the completion of the steps sought in the Defendant’s Application. We proposed 16 December 2022 as the timetable which the claimants are currently working towards as they progress the relevant matters.”

“The evidence which our clients intend to serve in support of their application is enclosed in final draft form. As you may be aware, in both the RSA and Serco litigation, issues relating to name amendment were dealt with by consent between the parties. The Claimants are confident that their application will be successful but, given the potential scope of the application, we consider that it is appropriate to provide you with the evidence in draft before issuing the application in a further attempt to narrow the issues between us, whether as to matters of principle or as to the detail of individual proposed amendments. As you will be aware, we have previously sought to do this through various rounds of information provided to you as to the amendments sought but you have been unwilling to engage with that process. Now that you can see the evidence on which the Claimants will rely we hope that your client will now engage constructively with the proposed amendments. We anticipate being in a position to issue the application within 2 weeks of your client confirming its position that it intends to contest any or all of the application.”

“Alongside the PoC a further amended version of the List of Claimants was served which identified some further existing Claimants which, since service of the Amended Claim Form on Barclays, had also given instructions to the effect that they no longer intended to pursue the Claim against the Defendant. As these proposed amendments to the List of Claimants were now being sought in a post-service context, in the covering letter serving the PoC [NS1/pages 75-76] my firm sought the Defendant’s consent to the making of such amendments to the Amended Claim Form and its List of Claimants. This consent was provided by the Defendant’s lawyers L&W in their reply correspondence dated 12 May 2021 [NS1/pages 133-134].”

“In light of the statements made by Mr Shrimpton in his witness statement, and the significant length of time your clients have had to put together the Application, we presume that it contains all amendments to the names of claimants which you and your clients consider are necessary. It is not clear on what basis each of the 25 Claimants listed in Schedule 1 consider they can proceed with their claim in light of your previous notifications that they require amendments. Please confirm the Claimants’ position as soon as possible. Our client reserves its right to apply to strike out the claim of any Claimant which lacks standing to sue.”

“Evidence in respect of the First Amendment Application has been exchanged, with evidence from the Defendant having been filed on 17 April 2023, and responsive evidence filed from the Claimants on 2 June 2023. As foreshadowed in that responsive evidence (see paragraphs 27 to 28 of my first witness statement dated 2 June 2023 (“Hogan 1”)), further amendments are sought in connection with additional Claimants, many of which were not able to be included within the First Amendment Application due to a conflict of interests on the part of the Claimants’ former solicitors, Brown Rudnick LLP.”

“Middleton 3 seeks to interrogate the change of legal representation. Without prejudice to whether the Defendant is entitled to such information which is of course subject to legal professional privilege, having only recently been instructed, I am not in a position to provide the level of detail sought in any event. I can say that the reason for the change of legal representation arises from a conflict of interest identified by Brown Rudnick which meant that it was not able to continue acting for certain claimants within the group. That conflict did not arise from Brown Rudnick’s relationship with the claimants in these proceedings, or its conduct of this proceedings, but rather to other matters unrelated to these proceedings. As regards paragraph 28 of Middleton 3, of the 29 claimants within the Second Application, 10 claimants could not be included within the First Amendment Application due to conflict issues, a further 14 were anticipated to be capable of agreement without the need to be included within the application (see my firm’s letter of 7 June 2023 at B1206 – B1210), but in light of Barclays’ position in this respect they did require to be included, and the remaining 4 arose in the course of preparing the application.”

“An amendment to correct the name of a party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued.”

“It is thus established by three or more decisions of the Court of Appeal that a name may be “corrected” within the meaning of Order 20, rule 5(3) even though it involves substituting a different name altogether, and the name of a separate legal entity, and even though it is objected (see per Donaldson L.J. in Evans v. Charrington & Co at page 822) that the effect of substituting the new name will be to substitute a new party. But the amendment will not be allowed where there is reasonable doubt as to the identity of the person intending to sue or intended to be sued. The “identity of the person intending to sue” is a concept which is not all that easy to grasp, and can be difficult to apply to the circumstances of a particular case, as is shown by the fact that in two of the cases to which I have referred there has been a dissenting judgment. In one sense a plaintiff always intends to sue the person who is liable for the wrong which he has suffered. But the test cannot be as wide as that. Otherwise there could never be any doubt as to the person intended to be sued, and leave to amend would always be given. So there must be some narrower test. In Mitchell v. Harris Engineering the identity of the person intended to be sued was the plaintiff's employers. In Evans v. Charrington it was the current landlord. In Thistle Hotels v. McAlpine the identity of the person intending to sue was the proprietor of the hotel. In The Joanna Borchard it was the cargo owner or consignee. In all these cases it was possible to identify the intending plaintiff or intended defendant by reference to a description which was more or less specific to the particular case. Thus if, in the case of an intended defendant, the plaintiff gets the right description but the wrong name, there is unlikely to be any doubt as to the identity of the person intended to be sued. But if he gets the wrong description, it will be otherwise. The point can be illustrated by the facts of Rodriguez v. R.J. Parker. In that case the identity of the intended defendant was the driver of a particular car. It was held that there was a mistake as to name. But if the plaintiffs had sued the driver of a different car, there would have been a mistake as to identity. He would have got the wrong description.”

“The difficult question in any given case is to decide whether the application to amend involves the identity of the party suing or only the name of such party. In the instant case, for the reasons I have given, no real problem arises since the identity of the party suing appears on the front of the writ. I agree with Lloyd L.J. that the distinction between the identity of a party and the name of that party may present great difficulties – the dissenting judgments in the cases cited indicate the problem. If a solution to the problem is to be stated in terms of general application I do not feel I can improve on the test suggested by Lloyd L.J. – can the intending plaintiff or defendant be identified by reference to a description which is specific to the particular case – e.g. landlord, employer, owners or shipowners? If the identification of the person intending to sue or be sued appears from such specific description any amendment is one of name, where it does not it will in many if not all cases involve the description of another party rather than simply the name. The nature of the claim will usually provide the answer to this problem.”

“39. The most cogent factor, in my view, is that for some time before this application SK had been aware of a number of very similar claims against it, and it had been preparing to defend them. It will suffer no prejudice if the order for substitution is made, beyond the susceptibility to recompense under the provisions of the 1987 Act, which would not otherwise be there, but which is a feature of all cases where a new defendant is substituted outside a limitation period. 40. On the other hand, if the application is refused the young claimant, with allegedly serious disability, will be deprived of any remedy under the 1987 Act. For the purpose of this application I must assume that he has an arguable claim under the Act, although it promises to be hotly contested. A claim for negligence or common law breach of duty, which the claimant has in any event, will be harder to pursue successfully for a variety of reasons. At the very least he will have the burden of having to take separate proceedings against his solicitors in respect of their mistake.”

“44. Instinctively one is reluctant to accept an interpretation of section 35(6) of the 1980 Act which might allow the substitution of a new defendant unconnected with the original defendant and unaware of the claim until after the expiry of the limitation period. Such a reaction initially led me to doubt the conclusion reached by Bell J. But on further consideration it seems to me that any potential injustice can be successfully avoided by the exercise of the court's discretion under section 35. It is perhaps not without significance that there is no appeal in the present case against the exercise by Bell J of his discretion against SK. 45. I conclude therefore that the claimant always intended to sue the manufacturer of the identified vaccine and that that is sufficient to give the court the power to substitute the true manufacturer under section 35 of the 1980 Act and CPR r 19.5. On this second issue also Bell J was, in my view, correct in the conclusion which he reached. It follows that I would dismiss this appeal.”

“These authorities have led us to the following conclusions about the principles applicable to Ord 20, r 5. (i) The mistake must be as to the name of the party in question and not as to the identity of that party. Such a mistake can be demonstrated where the pleading gives a description of the party that identifies the party, but gives the party the wrong name. In such circumstances a “mistake as to name” is given a generous interpretation. (ii) The mistake will be made by the person who issues the process bearing the wrong name. The person intending to sue will be the person who, or whose agent, has authorised the person issuing the process to start proceedings on his behalf. (iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used. (iv) Most if not all the cases seem to have proceeded on the basis that the effect of the amendment was to substitute a new party for the party named.”

“55. CPR r 19.5(3)(a) makes it a precondition of substituting a party on the ground of mistake that: “the new party is to be substituted for a party who was named in the claim form in mistake for the new party.”

“72. There is no reason to believe that Salans were under any misapprehension as to the true position in relation to the corporate structure of the Las Vegas Sands Group or as to the roles of the companies in the group. We have no information as to the instructions given by Salans to counsel. Only one thing is clear. Those responsible for the particulars of claim thought it appropriate to plead that the second claimant “trades and operates” without adding the words “through its operating subsidiaries”

“It could not be said, and was not suggested in the SmithKline case, that the claimant's mistake in naming Merck as defendant instead of SmithKline was not misleading or such as to cause doubt as to the identity of the party intended to be sued. It obviously was. Indeed, SmithKline did not even become aware of the claim until after the limitation period had expired. Nevertheless, as was noted in the Adelson case [2008] 1 WLR 585, para 57, the Court of Appeal still held in the SmithKline case that the Sardinia Sulcis test could be, and was, satisfied. It cannot therefore be an element of the test, at any rate as it now applies, that the mistake was not misleading or such as to cause doubt as to the identity of the person intending to sue or intended to be sued.”

“52. It is not easy to derive from these authorities any clear guidance as to where and how the line is to be drawn between those mistakes which on the Sardinia Sulcis test the court has power to correct by substitution and those which it does not. It seems to me, however, that the only way in which the Sardinia Sulcis test is workable at all is to identify the relevant description of the intended claimant or defendant by reference to what description is material from a legal point of view to the claim made. For example, in the SmithKline case [2002] 1 WLR 1662 the claim was founded on the Consumer Protection Act 1987 which gives a right to a person injured by a defective product to recover compensation from the producer of the product. It was thus material to allege that the party sued was the producer of such a product. On the other hand, the fact that the product was a vaccine and identity of the batch from which it came were not material to the existence of the cause of action and are therefore not essential facets of the description of the party whom the claimant intended to sue.” “58. To determine into which category a particular case falls, it is necessary to consider the whole of the evidence which may serve to explain why the LLP, and not the firm, was named as the defendant in the claim form. Such evidence will of course include any explanation given by the person who was responsible for preparing the claim form. But any such explanation may well not be conclusive, not least because the person responsible for the mistake may have given no proper thought to the decision to name the LLP as the defendant and may not consciously have followed either of the possible thought processes distinguished above. Any explanation given of the nature of the mistake may thus be an attempt to rationalise what was done in hindsight. For that reason other, objective evidence is likely to be just as, if not more, important. If particulars of claim were prepared when the claim was issued or at any rate before the mistake was recognised, they may be the best source for inferring what the claimant intended. It is also potentially relevant to consider what was said in any correspondence which preceded the issue of the claim form and in subsequent correspondence in so far as it sheds light on what the reason was for naming the LLP as the defendant.”

“A significant difference between the facts in Insight and in this case is that neither OLLP nor Olswang had any idea of the potential claim until months after the limitation period had expired. ALG decided, for whatever reason, not to take any steps in prosecuting a claim against their legal advisors until the very last minute: both with the issue of the claim form and the particulars of claim. That was the decision of ALG over which Olswang had no control. While a party will always lose the benefit of a limitation defence where the discretion is exercised in favour of the claimant under the provisions of CPR r.19.5 to substitute a party after expiry of the limitation period, in this case the manner in which ALG has conducted itself means that there was no intimation of a claim until four months after the expiry of the limitation period. That, as I have said, creates particular prejudice to a party who is entitled to consider that potential exposure to an action has come to an end by reason of the expiry of the limitation period.”

“I do not consider the fact that the substitution will deprive the First Defendant of a time bar defence to be a relevant, alternatively a weighty, factor in this context. That factor will by definition always exist in applications of this nature, yet the Limitation Act and Civil Procedure Rules make express provision for the substitution of parties after the expiry of a limitation period in cases falling within the rules.”

“Mr Penny submitted that the Judge's conclusion involved a penal approach to the exercise of discretion which led to a disproportionate result. He referred in this context to the decisions in Insight Group Ltd v. Kingston Smith (A Firm) [2014] 1 WLR 585; and American Leisure Group Ltd v. Olswang LLP [2105] EWHC 629 (Ch). I would accept at once that it is not for the court to exercise its discretion so as to punish a party for a harmless error by its legal representative. However, I do not consider that this is what occurred. The Judge was rightly concerned by the delay in making the application. The Claim Form has been issued at the end of (and in relation to the 2006 swap, after the expiry of) the limitation period. The claim was conducted without any of the urgency that it should have had. Even when the issue of the proper identification of the claimant was specifically raised in the Defence on 15 July 2015, nothing was done to put the matter right. Instead of a prompt application to amend the Claim Form an unwarranted allegation of deliberate concealment was made. Although there has been no waiver of privilege which might have enabled the Judge to assess it, previous counsel's characterisation of what occurred as 'sheer incompetence' was neither a sufficient explanation nor such as to come near to a justifiable excuse to what were repeated failures in the conduct of the litigation in what is a specialist court, where high standards of efficiency and expertise are expected of practitioners.”

“Had I found that I had a discretion I would not have exercised it in favour of the Claimants. Since the question is hypothetical I can give my reasons shortly. First, the Claimants have not explained why they amended the Claim Form without reference to the Court in April 2018 when they must have known that there were significant limitation issues that required them to use the procedures under CPR r. 17.4 or r. 19.5: they knew they had limitation difficulties because they had issued protective proceedings and the amendment was being made well over six years after the December 2011 Spill. Second, the effect of the amendment was that STASCO was first notified of its alleged involvement well over six years after the December 2011 Spill. Neither STASCO nor SIL, RDS or SNEPCO had any reason to investigate the facts of the Northia's involvement until the claim was in fact statute barred for many, if not all, of the Claimants. This constitutes substantial prejudice which is not eliminated if it were subsequently to be shown that some Claimants first suffered actionable damage after April 2012. Third, the mistake (if such it was) led to the naming of SIL which was misleading and such as to cause reasonable doubt as to an intention to sue STASCO. Although the Claimants purported to correct this mistake before service of proceedings, this remains a matter that may be taken into consideration when exercising the Court's discretion: see the reference to Best at [121] above. Fourth, the Claimants then delayed until June 2019 to issue the STASCO Application. Although it is true that the Defendants had not raised the issue with them, the primary responsibility for regularising the position rested with the Claimants who had inappropriately relied upon the CPR r. 17.1 procedure in the first place. Fifth, in an attempt to stave off inevitable findings to the effect that the Defendants had an accrued limitation defence for many (and possibly all) of the individual claims being brought, the Claimants raised an unwarranted deliberate concealment argument that was unjustified both on the facts and the appropriate legal principles. It may be said that this is to "double-count" because the existence of a discretion might have arisen if the deliberate concealment argument had succeeded. I therefore make clear that I would have declined to exercise my discretion in favour of the Claimants even if giving this point no weight.”

“I have also, as part of this exercise, considered prejudice to the defendants, although that is only one element of considering discretion. I can deal with this simply. In my judgment there is none to the defendants if the substitution is permitted. There is no doubt that the defendants would be in a far better position forensically were this application to fail, but that is not the correct test for prejudice. The defendants always knew, from receipt of the claim form, that the Second Claimant was intended to be the lessee of the third floor. The fact that the mistake that was made by the solicitors acting for the claimants was that they believed that the lessee was TP ICAP plc, when in fact it was TP ICAP Group, has caused the defendants no prejudice whatsoever. Failing to achieve a technical knockout cannot, in my judgment, sensibly be characterised as prejudice.”

“From these authorities I derive the following conclusions for the purposes of the points I have to decide: (i) Under both rules 17.4 and 19.5, the mistake must be as to name and not identity. (ii) Rule 19.5 refers in terms to a substitution. However, in reality rule 17.4(3) has also been interpreted so as to allow what is, in fact (and law) a substitution. (iii) That is because the concept of a mistake as to name is interpreted generously. (iv) Generosity is achieved by looking to the description of the legal requirements for qualification as the claimant or defendant (as the case may be)— Insight at para 52—usually as described in the claim form (and perhaps Particulars of Claim if served with it). (v) If a description is to be relied on as saving a misdescribed party it must be sufficiently specific to allow identification in the circumstances—“more or less specific to the particular case”, in the words of Sardinia Sulcis. A successful amendment will very often be a case where there is an intention to sue in a certain capacity (landlord, tenant, shipowner). (vi) The true identity must be apparent to the litigation counterparty, at least under rule 17.4(3) (Adelson para 43). It is not clear to me why this would be a requirement under CPR r 19.5(3)(a) when it seems to omit the reasonable doubt criterion. (vii) Under CPR r 17.4(3) it is a requirement that the mistake would not have caused reasonable doubt as to the identity of the party intending to sue. That is not a requirement under CPR r 19.5, but the point may be relevant to the court's discretion, and may be a significant factor. Mr Onslow accepted that it was capable of being relevant to discretion. I confess that it is not wholly clear to me how it is likely to play into discretion, but I suppose it is relevant to consider it as a test for whether the counterparty in reality knew in substance who the proper claimant/defendant was supposed to be. If they did then there might be more of a case for allowing the amendment, though I confess I do not find this wholly logical. 141. The level of generosity is demonstrated by a large number of the reported cases, but I can just confine myself to just one. In the TRW case (above) there was a claim by what was intended to be the tenant under a lease to one of a group of companies. After proceedings were issued, and after the limitation period had expired, the claimants discovered that the actual leaseholder was a different company from that which had originally sued. The wrong entity had been listed on the claim form because of a mistaken belief by the claimants’ solicitors as to the identity of the lessee, and the mistaken belief came from a description given by loss adjustors. Fraser J allowed substitution under CPR r 19.5 on the basis that there had been a relevant mistake. The company which was joined as claimant was the company that the mistake maker (the solicitor) intended to be joined. There was no mistake as to the identity of that company. There was no mistake as to the name of that company. His mistake was in thinking that it was the tenant company. Nonetheless this was treated as a mistake as to name within the generous test. 142. That decision, and other more historical ones which follow the Sardinia Sulcis test, are a helpful background in my considering the mistakes in this case. Unidentified claimants — the person making the mistake 143. According to Adelson, the person whose mistake is relevant has to be: “… the person responsible, directly or through an agent, for the issue of the claim form. It is also clear that he must be in a position to demonstrate that, had the mistake not been made, the new party would have been named in the pleading” (para 55). 144. One might have thought that that would mean the individual within the client who authorised the proceedings. However, that would be too narrow a view. In TRW it was, on the facts, the solicitor who was responsible for the litigation. There is no indication in that case that anyone in the client companies made a mistake at all. The source of the mistake was in the casual use of names by the loss adjuster, and a misinterpretation by the solicitor. That was sufficient for Frasier J. I would respectfully agree with that approach of allowing that mistake to count. It does not seem to me that too nice an inquiry into who made the mistake is going to matter much, because at the end of the day if there is a mistakenly joined party that will be down to the solicitor who will be mistaken as to the party who should be joined. He may have made the mistake himself without a contribution from anyone else; or he may have made it because of something he was told (as in TRW, and as in BDW Trading Ltd v AECOM Infrastructure and Environment UK Ltd (unreported) 16 October 2020. I do not see why the rule requires a particularly strict approach to this inquiry. In my view it is more important to identify the nature of the mistake, though that will of course involve identifying who made it, and obviously the mistake must have been causative of the error in question.”

“197. The mistake is said to be as to the corporate nature of the funds in question. The originally named claimant is a sub-fund within an OEIC of the nature described in the previous section of this judgment dealing with such entities. These were not sub-funds with separate legal personality. They were ring-fenced funds under an umbrella company, with the ring-fencing consequences referred to in that section. The evidence is that “the Claimants” (no particular individual identified) thought that it was unnecessary and inappropriate for the umbrella companies to be parties to the claim because each of the Investment Manager and the Investment Advisor to each of the sub-funds (unidentified to me) were party to the claim, the former body “having the authority to bring proceedings in relation to losses suffered by any of the above-funds”

“200. The next question is therefore whether it was a mistake as to name within the meaning of rule 17.4(3). I do not consider that there was. This rule applies where a party wishes “to correct a mistake as to the name of a party”

“205. The essential description “the owner of shares held by the [Invesco fund]”, which is an acceptable paraphrase which does not beg the questions which arise under this head, is a description which is sufficient to fall within Sardinia Sulcis as elaborated by Adelson. 206. I have not overlooked the fact that one of the apparent requirements of the old Ord 20 r 5, set out in para 43 of Adelson, is: “(iii) The true identity of the person intending to sue and the person intended to be sued must be apparent to the latter although the wrong name has been used.” 207. That would probably not be fulfilled in the present case. For the reasons appearing above in relation to the reasonable doubt element of the rule 17.4(3) test, the true identity of the legal owner of the Fund's shares would not have been apparent to G4S. However, I do not regard that requirement as necessarily carried over into CPR r 19.5(3)(a). The Court of Appeal did not say that it was, and I do not detect it in the later authorities. If it had been carried over it would have involved the introduction into rule 19.5(3)(a) of a requirement which would be stricter than the reasonable doubt test, which has been held not to be applicable to this provision as a matter of rule. Accordingly, I do not consider that absence of this factor stands in the way of the conclusion that I have reached. 208. I therefore consider that the mistake made in this instance was a mistake as to name and not as to identity, being appropriately generous to the claimants for these purposes. For what it is worth, I consider that the position in relation to this particular exemplar falls naturally within the wording of CPR r 19.5(3)(a), though I accept that there is little that is natural in the approach which the authorities require to be taken to this provision.”

“On the authorities, therefore, the following material points can be extracted: (a) The quality of the mistake can be relevant. An accidental slip that is easily made may be more remediable than other more serious forms of mistake. (b) The speed with which corrective action is taken is relevant. A speedy application will be looked on more favourably than a tardy one. (c) Prejudice to each party is relevant. (d) The fact that a claim will be extended to a claimant who would otherwise be time-barred is not, by itself, sufficient prejudice to justify a refusal of the exercise of discretion. That is logical—the ability to pursue a claim which could otherwise not be pursued is built into the legislation and the rules. (e) The state of knowledge of the claim on the part of the defendant is relevant. If the defendant knows of a number of similar claims already, and the amending claimant just adds one, then the prejudice to the defendant is not that great (Horne-Roberts). By contrast, if a whole batch of “new” claimants seek to come in, then that may well be different. (f) It is of assistance to a claimant that the defendant knows of the claim and of the mistake in advance of the proceedings. By contrast, it is relevant the other way if the defendant does not have that knowledge. (g) The jurisdiction is not intended to be punitive of the maker of the mistake. The court understands that honest mistakes can be made (see also Insight at para 106 and TRW). (h) It is said that a defendant who is notified of the claim after the expiry of the limitation period is in a better position than one who knows about it before the limitation period has expired. This is justifiable on the basis that in cases like Horne-Roberts and TRW the amended-against defendant is only being put in the same position as he thought he was in before the limitation period expired. The position is otherwise if the defendant knew nothing of the claimants or the claims made until after the period had expired.”

“283. This is nothing like the case of an understandable error in relation to known pre-limitation period litigation being corrected, on a one-off basis, after the limitation period. The defendant was not notified of the claim until after the expiry of the limitation period. That presents immediate difficulties to the claimants on the basis of the above factors, and is one of the indicators of the great (and unnecessary) rush in which the claimants apparently were. 284. Assuming the sample instances placed before me were typical (which was the purpose of the sampling) it is clear enough what is likely to have happened. At an extraordinarily late stage someone in the Invesco group, or perhaps an intermediary, realised there was or might be a claim. They did not realise early enough, or action it early enough, to enable an orderly marshalling of the various claims and the orderly identification of claimants, followed by a letter before action and a pre-action protocol. There was therefore a rush to get some claims issued, and then a continuing exercise in identifying claimants. Those responsible for the exercise did not carry out enough researches to understand who the claimants should be. That would, I accept, be a tiresome exercise, but it needed to be done. Instead, the identity of claimants was passed to the solicitors who themselves probably rushed through the exercise of adding batches of claimants. I say nothing about the culpability of the solicitors in failing to check (if they did—Mr Warren-Smith said they raised queries when they had any), but the fact that batches of amendments were carried out on one particular day speaks to the haste of the exercise. That haste should have been unnecessary. The source of the error may have been the lack of understanding of intermediaries, or the lack of understanding of Invesco of its own corporate structures, but either way it is not a meritorious position when it occurred on such a grand scale. 285. A large part of this exercise went on after the limitation period had (at least arguably) expired but before the claim was intimated to G4S. It was in this period that most of the mistaken identities are pleaded. It is said that the exercise was difficult because of the need to go back into a lot of records going back a number of years, and that contributed to the mistakes. That may be the case, but it ought not to have been happening when it was. If it was complex it ought to *44 have started earlier. If it had been, and mistakes had been made, there would not have been a limitation problem. 286. In practically all mistake cases within this amending jurisdiction the amending party is, of course, the author of its own misfortune, so that is not a reason for disallowing the amendments. However, in this particular instance the authorship went not merely to who made the mistakes, but also to when and in what circumstances they were made. They were made close to or (in most cases) after the end of a limitation period of which the claimants were aware—Mr Warren-Smith in substance refers to the fact that the activities were taking place close to a perceived limitation end date. That is apparently because the decision to sue was taken very late. Where that is the case, and the source of the error is a failure to carry out sufficient investigation to understand who should be a claimant, that is a strong factor against the exercise of the discretion. 287. A further factor pointing the same way is the late stage at which G4S was told of the claim—three months after the issue of proceedings and a similar period after the end of the limitation period. When it was told of the claim there were a significant number of misidentified claimants. At that point the claim can be described as being in something of a mess, with a lot of misdescribed claimants and a large number of claimants who were subsequently removed (about 90). Group claimants have a certain obligation to make their claim clear, not confused, and to do so before the claim is issued. 288. So far as the speed of correction is concerned, some mistaken references were corrected by purported amendments; others were not done until after the defendant pointed out the problem, and even then only with a degree of reluctance. In its defence, served on 13 July 2020, G4S took the unidentified claimants point, and it issued an application seeking to strike out the claims of 64 defendants as being improperly identified. It was not until 14 September that the claimants said they would, absent consent to amendment, apply to amend to correct names, and then did not make an application until 23 October. This is not a particularly prompt response to the point being taken, and if it be said that the scale of the exercise is the cause of any delay, then the riposte is that that scale was caused by the scale of the errors in the first place, and is not a particularly good justification. 289. Mr Onslow's main point, as I have said, is lack of prejudice to the defendant. Mr Rabinowitz did not particularly rely on prejudice to his client and it is true that if the amendments are not allowed then a large number of claimants owning a large part of the claim will fall away. That is prejudice. However, on the facts of this case it is less compelling than might be the case in other litigation. All applications of a limitation period cause prejudice. It is so significant in this case because of the scale of the errors that occurred. It arises not because what happened is of the kind of accident that will happen (to use a cliché), but because of a failure to address important points, and doing everything very late. I do not ignore the prejudice but it has to be weighed with the other relevant matters and is nothing like determinative. 290. So far as rule 19.5(3)(a) is concerned, there is also the factor of reasonable doubt, of lack of knowledge of the intended identity on the part of the defendant, which is capable of coming back in at this stage. There is no way the defendant can realistically have understood what was intended in relation to all these claimants. This factor weighs against the claimants when it comes to discretion. 291. Taking all the above factors into account in this case, and taking the discretion point globally, as did the parties, I consider that the correct course is to exercise my discretion against the claimants. These were multiple mistakes borne of haste, casualness and a failure to understand a group's own structures and/or entities. They were done in the course of activities conducted in full knowledge of an approaching limitation period. If the litigation (which is complex, and required proper attention) had been put in train earlier, either there would not have been so many mistakes, or there would have been time to correct them. As it is the lateness has led to the mistakes and the expiry of a limitation period. Such disorderly litigation is not to be encouraged, and is certainly not to be assisted by the exercise of the court's discretion as to the amendments sought. There is prejudice to the claimants in this conclusion, but that is what happens when the Limitation Act applies. 292. I would allow one limited exception to this. In the Allianz exemplar in category 6 I would exercise my discretion in favour of the amendment. A straight historic change of name of a corporate entity which has not been properly recorded is a straightforward matter and where there is no scope for reasonable doubt I would allow the claim to continue in the new name. The same is not the case in relation to the other exemplar, which is rather more than just an historic change of name of the entity.”

“The Claimants identified in Schedule 1 claim compensation from the Defendant a. pursuant to s. 90A (and Schedule 10A) of the Financial Services and Markets Act 2000 (‘FSMA’). And/or b. under s.90 of FSMA.”

“3. The Claimants are investors who acquired, continued to hold and/or disposed of ordinary shares issued by Barclays Plc and admitted to trading on the London Stock Exchange during the Relevant Period, and/or interests therein. For the purposes of these Particulars, references to such shares include references to interests therein. The details of the Claimants are set out in Appendix A. 4. Some of the Claimants acquired shares pursuant to a rights issue carried out in September 2013 by which Barclays Plc raised approximately £5.8 billion by way of additional share capital (“the Rights Issue”). The Rights Issue proceeded by way of prospectus dated 16 September 2013 (“the Prospectus”). 5. The Relevant Period is from 1 January 2011 to 1 February 2016. The Claimants reserve the right, pending consideration of Barclays’ disclosure and further relevant information to be obtained from third parties, to assert claims against Barclays arising earlier in time.”

“(4) A loss is not regarded as suffered as a result of the statement or omission unless the person suffering it acquired, continued to hold or disposed of the relevant securities— (a) in reliance on the information in question, and (b) at a time when, and in circumstances in which, it was reasonable for him to rely on it.”

“25. It was between the issue of the Claim Form and the Amended Claim Form, and the ongoing process of engaging with the Claimants and their representatives in the course of seeking to clarify remaining uncertainties around the name and standing of certain Claimants for which alternative formulations had been included, that the mistakes in respect of the Applicants also started to be discovered, as I explain further below. Moreover, the 10 March 2021 judgment of Mr. Justice Mann in G4S, and the guidance set out therein, provided further impetus for the by then ongoing review of the approach to the naming of claimants that had been taken in the List of Claimants. 26. I consider the causes of the mistakes to be primarily: (a) That in practice, certain Claimants have recorded their interest in shares and/or otherwise dealt with their shareholdings using names that do not correspond to the correct name for the legal entity that in law holds that interest, leading to errors being made in the information provided to my firm as a result; (b) That, as explained further in paragraph 27, certain Claimants had typically conducted securities litigation in foreign jurisdictions in a particular name which would not be the correct name under English law; (c) Certain transcription errors made by my firm when entering the names on the claim forms under the pressure of time; (d) That my firm relied on claimants’ representatives, who in many cases are experienced corporate professionals and in some cases also lawyers, to have a proper understanding of the particular legal structures used by their clients in their home jurisdictions and that the concepts of ‘legal personality’ and ‘beneficial ownership’ had the same meaning in their home jurisdictions as in English law; and (e) The limited time available to my firm and to claimants to complete the process of identifying potential claimants and to carry out verification of the names provided to us by claimants.”

“Joinder of claimants to Group actions, whether or not subject to a GLO, should not be a matter of subscription but of orderly and careful assessment in respect of each claimant that the statutory requirements to establish liability are appreciated and satisfied. I would note parenthetically, without in any way suggesting that this applies in the particular case, that there is a danger in the case of group actions that people do subscribe to the action in the expectation, or at least hope, of settlement, without at that stage giving sufficient focus to the need for its case to be tested with the same degree of particularity as would be the case if they were fewer in number.”

“While it is in general a misuse of the court process for a legal representative to issue proceedings in the name of a person who has not given authority to do so, it is not the policy of the law always to prevent that happening provided that it is openly done, and so there is no rule that the issue of proceedings without valid authority must necessarily amount to an abuse of the process of the court. Determining whether there has been an abuse of process requires sensitivity to the facts of the particular case.”