APK Communications & Ors v Vodafone Limited [2026] EWHC 811 (Comm)

[2026] EWHC 811 (Comm)Case No CL-2024-000663
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Venue The Rolls Building, 7 Rolls Building, Fetter Lane,Date 26 March 2026
London, EC4A 1NL
Before
The Hon Mr. Justice Bryan
Between
APK COMMUNICATIONS & ORSClaimantsVODAFONE LIMITEDDefendant
David Lewis KC, James Shaw and Martin Griffiths (instructed by Knights PLC) for First to Thirtieth Claimants (inclusive) and the Sixty-Second ClaimantDavid Lewis KC and James Shaw (instructed by Bird & Bird LLP) for Thirty-First to Sixty-First ClaimantsJasbir Dhillon KC, Tom Wood and Danielle Carrington (instructed by TLT LLP) for DefendantHearing Hearing dates: 26 March 2026
APPROVED JUDGMENT

INTRODUCTION

[1]This is the hearing of the first Case Management Conference in this case. The matters for determination at this hearing are as follows:(1) Whether all issues should be tried together or whether there should be a split trial of the claims broadly along the lines of liability (“Trial 1”) and quantum (“Trial 2”) (the “Split Trial Application”), which is supported by the Claimants and the Defendant, albeit the parties have been unable to agree the precise division of issues and the Split Trial Application is recognised as being subject to whether the Court agrees that such a course is appropriate;(2) A heavy application by the Claimants (that was only issued on 18 March 2026) that the Claimants be permitted to be represented by both Knights Professional Services Limited (“Knights”) and Bird & Bird LLP (“Bird & Bird”), with Knights representing Claimants 1 to 30 and 62, and Bird & Bird representing Claimants 31 to 46 and 48 to 61 (the “Co-Counselling Application”);(3) Case management directions to trial, including as to expert evidence and the duration of the trial (or trials).

BACKGROUND

[2]Each Claimant is a former franchisee of Vodafone, having variously entered into a franchise agreement (“the FA”, collectively “the FAs”) plus other ancillary contractual documents (“the Contractual Suite”) at various dates between 26 February 2018 and 21 July 2023. Behind each Claimant company is a person who, via that corporate vehicle, went into business with Vodafone to run one or more of its physical stores (“the Stores”) in the United Kingdom. Many of them were former employees, including store managers of Vodafone, who it is said were persuaded to take on their stores by their former employer on the basis that it was a heritage British brand that they trusted.[3]Vodafone is a wholly owned subsidiary of Vodafone Group plc, a public company listed on the London Stock Exchange and a constituent of the FTSE 100 index. It is a major distributor of mobile phone handsets in the UK and is one of the UK’s major mobile network operators.[4]Vodafone established a Franchise Programme in mid-2017, which was developed out of Vodafone’s retail estate. The Franchise Programme went live in mid-2017 with just six Stores and expanded to around 400 Stores, varying from time to time, of which the Claimants operated 183 Stores between them.[5]The Claimants’ case, as set out in the statements of case in these proceedings, is that the reality of the Claimants’ experiences as franchisees is a long way from that which they imagined when they went into business with Vodafone.[6]The Claimants’ claims total some £84,580,000. They are conveniently summarised in the Agreed Case Memorandum and are as follows:(1) The Commercial Agency Claims. The Claimants contend that they were commercial agents of Vodafone within the meaning of the Commercial Agents (Council Directive) Regulations 1993/3053 (and for those in Northern Ireland, the Commercial Agents (Council Directive) Regulations (Northern Ireland) 1993) (“the Regulations”) (“the Commercial Agency Claims”). This is denied by Vodafone, which contends the regulations are of no application. Alternatively, certain Claimants are not entitled to indemnity owing to (alleged) circumstances of their termination. The Claimants bring claims for: (i) declaratory relief as to their status as commercial agents during their FAs; and (ii) “indemnities” pursuant to Reg.17 of the Regulations. The total alleged value of the commercial agency claims is approximately £52.05 million. It will be seen, therefore, that these are by far and away the largest of the claims.(2) The Franchise Remuneration Claims. These claims all concern Vodafone’s exercise of discretions and/or powers afforded to it under the express terms of the FAs, which the Claimants contend were subject to Braganza-style implied terms and/or duties of good faith which are denied by Vodafone. The specific decisions which the Claimants impugn all concerned cuts unilaterally imposed by Vodafone to the Claimants Commission under the FAs: (i) The July 2020 Decision. The Claimants allege Vodafone unlawfully reduced Franchisee Remuneration with effect from 1 August 2020 by reducing the Commission rates on customer upgrade transactions and home broadband upgrade transactions. The total of the alleged value of the Franchisee Remuneration Claims in respect of the July 2020 decision is approximately £3.78 million. (ii) The EVO Decision. The Claimants allege that Vodafone unlawfully restructured the basis and/or calculation of Commission in a manner adverse to its franchisees and beneficial to Vodafone as part of the implementation of a proposition called “EVO”, in June 2021. The total of the alleged value of the EVO Decision Claims is approximately £11.75 million. (iii) State Relief Decisions. The Claimants allege that Vodafone unlawfully factored Government financial support provided to and intended for some franchisees into Vodafone’s Franchisee Remuneration model (including grants, bounce-back loans and rates relief), such that Vodafone’s subsequent decisions on those Claimants’ rate cards had the effect of depressing or eliminating the effective benefit those Claimants should have received from government assistance for Vodafone’s own benefit. The total of the alleged value of the Government financial support, which Vodafone is alleged to have taken into account in its modelling, is approximately £14.36 million. (iv) Miscellaneous Decisions Claims. These are Claimant-specific Store Rate Card Tier changes imposed by Vodafone. The total alleged value of these claims is approximately £910,000.(3) Underpayment Claims. Certain Claimants also bring claims for allegedly unpaid /underpaid Commission. The total alleged value of the Underpayment Claims is approximately £190,000.(4) Underlease Claims. Certain Claimants bring claims for, inter alia, breach of contract and/or mistake arising out of Vodafone’s practice of recharging rent-free periods to Claimants, i.e. taking from the Claimants money it claimed was owed to as a head-lessor as rent in circumstances where, in the relevant period, Vodafone was not in fact paying rent to that head-lessor – resulting in a windfall to Vodafone. After the commencement of the litigation, Vodafone has admitted breach of contract in respect of such matters and accordingly admits these claims in principle, but issues remain. The total value of these claims is £360,000.(5) Fines and Penalties Claims. The Claimants allege that the fines and penalties regime imposed on franchisees by Vodafone, as it was implemented and/or operated by Vodafone, was: (i) without a contractual basis; (ii) in breach of implied terms; (iii) by virtue of the rule against penalties and unenforceable penalties regime and/or purported to enable Vodafone to impose unenforceable penalties; (iv) was implemented or operated in breach of the alleged Braganza term, and/or Vodafone’s alleged duty or duties of good faith; and/or (v) was a breach of, or was otherwise incompatible with, Regulations 7, 8, 10 and/or 11, operating to the detriment of the Claimants as franchisees and is of no effect. The total value of the fines and penalties claims is approximately £1 million.(6) Notice Period Claims. Certain Claimants pursue claims related to a Rate Card change implemented by Vodafone, of which each relevant claimant alleges it was not properly notified in accordance with the contract. Total alleged value of the notice period claims is approximately £180,000.[7]In addition to defending the claims (other than the underlease claims which are admitted in principle), Vodafone has pursued set-off defences against some claimants claims in the relevant defence schedules. The Claimants allege that Vodafone has not sufficiently particularised its alleged set-off defences, and deny that Vodafone is entitled to any set off.[8]The alleged values of the claims and set-off defences are conveniently set out in a pie chart that has been prepared for the Split Trial Application, and which I will set out below: SPLIT TRIAL

C.1 Applicable Legal Principles

[9]The Court’s power to order a split trial is part of its general powers of case management set out in CPR rule 3.1. CPR rule 3.1(2) specifically provides that the Court may:
“(f) direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings ... (j) directs a separate trial of any issue; (k) decide the order in which issues are to be tried.”
[10]Whether the Court should order a split trial pursuant to its case management powers under CPR 3.1(2)(f), (j) and (k) is a pragmatic balancing exercise assessing how the case is likely to unfold according to whether or not there is a split – see Electrical Waste Recycling Group Ltd v Philips Electronics UK Ltd (“Electrical Waste Recycling”) [2012] EWHC 38 (Ch) at [5] to [7] per Hildyard J, and see also what I said in this regard in Daimler AG v Walleniusrederierna & ors (“Daimler”) [2020] EWHC 525 (Comm) at [25] to [32]. A split trial is an exception to the general rule that there will be a single trial and, as such, requires careful consideration and a very clear justification – see Bindel v PinkNews Media Group Ltd [2021] 1 WLR 597 at [33] per Nicklin J.[11]In the competition context, the leading cases are Leaflet Company Ltd v Royal Mail Group Ltd [2008] EWHC 3514 (Ch); [2009] UKCLR 323, and Electrical Waste Recycling. Whilst these are competition cases (which often give rise to issues as to whether a split trial is appropriate), the applicable principles are of general application, as I recognised in IPJSC United Company Rusal v Whiteleave Holdings Limited (“IPJSC United”) [2025] EWHC 1995 (Comm) [98].[12]In Electrical Waste Recycling, Hildyard J provided guidance in the form of a non-exhaustive list of relevant factors to be taken into account in considering whether to split the trial at [5]. The bracketed comments which follow are my own:
“5. Where the issue of case management that arises is whether to split trials the approach called for is an essentially pragmatic one, and there are various (some competing) considerations. These considerations seem to me to include: [Factor 1] whether the prospective advantage of saving the costs of an investigation of quantum if liability is not established outweighs the likelihood of increased aggregate costs if liability is established and a further trial is necessary; [Factor 2] what are likely to be the advantages and disadvantages in terms of trial preparation and management; [Factor 3] whether a split trial will impose unnecessary inconvenience and strain on witnesses who may be required in both trials; [Factor 4] whether a single trial to deal with both liability and quantum will lead to excessive complexity and diffusion of issues, or place an undue burden on the Judge hearing the case; [Factor 5] whether a split may cause particular prejudice to one or other of the parties (for example by delaying any ultimate award of compensation or damages); [Factor 6] whether there are difficulties of defining an appropriate split or whether a clean split is possible; [Factor 7] what weight is to be given to the risk of duplication, delay and the disadvantage of bifurcated appellate process; [Factor 8] generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly and efficiently as possible. “6. Other factors to be derived from the guidance given by CPR Rule 1.4, which reflect a common sense and a pragmatic approach, may include: [Factor 9] whether a split would assist or discourage mediation and/or settlement; and [Factor 10] whether an order for a split late in the day after the expenditure of time and costs might actually increase costs.”
[13]The judge must undertake a “pragmatic balancing exercise”, which requires assessing “how a case is likely to unfold according to whether or not there is a split” (see Electrical Waste Recycling at [7] and Daimler at [28]).[14]As stated in Daimler at [29] and in IJSPC United at [99]:
“If a split trial is ordered, it is important that there should be a careful demarcation of the boundary between the two in terms of the issues to be dealt with at each stage – see Electrical Waste Recycling at [9], and with regard to factor 4, one example of the “excessive complexity” that a single trial can lead to is where a large number of possible permutations of loss and damage may arise depending on the judge’s conclusions as to liability. See Leaflet Company at [7]: ‘The evidence on damage would have to cover all eventualities of the judge’s factual conclusions. Given 16 allegations of infringement, they could produce an over large number of possible permutations. It would be productive of saving of both time and money [4]. The evidence on those issues [2] be deferred until the judge’s conclusion on infringements are known.’” ‘The evidence on damage would have to cover all eventualities of the judge’s factual conclusions. Given 16 allegations of infringement, they could produce an over large number of possible permutations. It would be productive of saving of both time and money [4]. The evidence on those issues [2] be deferred until the judge’s conclusion on infringements are known.’”
[15]As also stated in Daimler at [31] to [33]:
“Further, the Court’s power under CPR Rule 3.12(i) to direct a split trial must be exercised in accordance with the overriding objective in each case. Relevant considerations under CPR Rule 1.1 include ‘ensuring that the parties are on an equal footing’, ‘saving expense’,‘ensuring that [the case] is dealt with expeditiously and fairly’, and ‘allotting to it an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases’. 32. Relevant considerations under CPR 1.4, in addition to those set out previously by Waste Recycling at [6] include giving directions to ensure that the trial of a case proceeds quickly and efficiently and the importance of the court dealing with as many aspects of the case as it can on the same occasion. 33. Factor 6 feeds into multiple other factors. If the issues cannot neatly be demarcated, this places a greater burden on witnesses in many cases where they will be required to give evidence at both trials and it is also a significant disadvantage in terms of trial preparation and management. In particular it can mean that parties are allotted more than an appropriate share of the Court’s resources.”
[16]Further to what was stated in Daimler at [32] that it is important that it is important for the Court to deal with as many aspects of the case as it can on the same occasion, I agree with what was recently stated by Michael Green J in the Commercial Court Financial List case of California State Teachers’ Retirement System v Boohoo Group Plc [2026] EWHC 335 (Comm) at [29] (endorsing a submission made by Sonia Tolaney KC on behalf of the defendant in that case), that “... the starting point should be to try as much as possible in Trial 1, and that if there is to be some split of the issues, that there needs to be a good reason for sending something off to a later trial. It is generally a better use of resources and case management to try as much as possible in one go.”[17]When considering whether some case management order other than a trial of the whole action is appropriate in the furtherance of the overriding objective, an alternative to split trials is the ordering of preliminary issues, but there is a principled and pragmatic distinction between the two, which have different functions and involve different approaches to the first trial, as was identified by Peter MacDonald Eggers KC (sitting as a Deputy Judge of the High Court) in Jinxin Inc v Aser Media PTE Ltd [2022] EWHC 2431 (Comm) at [20] (as recently endorsed by Pepperall J in Limbu v Dyson Technology Ltd [2026] EWHC 38 (KB) [25]:
“On some occasions, split trials and trials of preliminary issues are terms which are used interchangeably. This is for good reason: because they often amount to the same thing. However, the archetypical preliminary issues trial is one which requires the determination of one or a few issues (often, but not always, an issue of law) whose resolution depends on the Court drawing certain assumptions, which generally occupies the Court for a short period of time, and whose outcome has the real potential to save the parties and the Court of the need for a substantially longer trial. By comparison, a split trial may involve all of the issues being determined at two or more separate hearings, each concerned with a substantial number of issues both of law and fact, and yet the first hearing has again the real potential to avoid the need for a subsequent hearing or subsequent hearings. Very often, where trials are split, the first trial need not make any assumptions of fact. This may be where the distinction between split trials and preliminary issues trials resides. In any case, it is the potential to save the Court and the parties from having to deal, at a subsequent hearing, with issues which become irrelevant depending on the decision reached by the Court at the first trial which is common to both preliminary issues trials and split trials.”
[18]Neither party suggested that a trial of preliminary issues would be appropriate in this case. I agree.

C.2 The Split Trial Application

[19]The parties each consider that a split trial would be appropriate in the present case and, in this regard, have proposed a List of Issues Matrix indicating proposals as to the split of issues for consideration by the Court. Whilst there was much agreement as to a possible split, as at the time of exchange of skeleton arguments, there were a number of issues where the parties could not agree whether the issue should be determined at Trial 1 or Trial 2. In the context of Factor 6 (as identified in Electrical Waste Recycling), namely whether there are difficulties in defining an appropriate split or whether a clean split is possible, this might not be thought to be a particularly auspicious start to an application for a split trial.[20]However, and perhaps fortunately, the difference between the parties has subsequently narrowed considerably and before the oral hearing the only remaining dispute concerned whether the List of Issues Matrix Issues 14(a) and (b) relevant to the Commercial Agency claims should be determined in Trial 1, as the Claimants proposed, or Trial 2, as Vodafone proposed. In fact, matters developed further in very recent correspondence and in oral argument before me with a revised Issue 10(a) and a revised Issue 10(b) being proposed by the Claimants to cover the issues of principle in this area with what were Issues 14(a) and 14(b) being left over for a later stage. I address this development and the remaining issues separately in due course below, though I factor in my conclusions in this regard when considering whether a split trial order is appropriate in this case.[21]In order to consider whether a split trial order is appropriate, it is, as the authorities identify, necessary to assess how the case is likely to unfold according to whether or not there is a split trial, which in turn involves a careful consideration of the issues that arise and the application of the factors I have identified when undertaking the pragmatic balancing exercise that is to be undertaken. In this regard, it is necessary to say something more about the issues that arise on the claims that I have already identified in outline.[22]A preliminary point to note is that having regard to a sampling exercise that the parties advocate, the parties have also sought to agree a division of those issues, which are common to all Claimants (the “Common Issues”) and the issues which are specific to each Claimant (“the Claimant-specific Issues” (together, the “Issues”). There is in fact complete agreement as to the characterisation of those issues as common or Claimant specific. However, neither party contends for a trial split that corresponds entirely to the division between Common and Claimant-specific Issues.[23]It is readily apparent that by far the most substantial category of claims in terms of value are the Commercial Agency Claims, which are pursued by 59 of the Claimants. The primary issue in dispute is whether, as the Claimants contend, the Commercial Agency Regulations (The Regulations) apply to their activities for Vodafone or whether, as Vodafone contends, the Regulations do not apply. The resolution of that issue will determine whether the Claimants are entitled, potentially, to indemnities as a result of the termination of their FAs, the total alleged value of those claims, as already noted, being c.£52 million (59% of the total alleged claims value). Whether the Regulations apply turns in particular on the question of whether the Claimants’ activities in selling mobile handsets (i.e., goods) to customers on behalf of Vodafone are “secondary activities” within the meaning of the Regulations, having regard to the fact that Vodafone’s core business, including as carried on by the Claimants when they were the Vodafone franchisees, is the provision and operation of mobile network services (the Regulations and originating EU directive having no application to services).[24]Vodafone refers to this as a “complex and novel issue” involving the application of the schedule to the Regulations (which the Court of Appeal has described as “an almost impenetrable piece of drafting”) to the facts concerning Vodafone and its former franchisees’ business. The decision that Vodafone is referring to is AMB Imballaggi Plastici SRL v Pacflex Ltd [1999] 2 All ER (Comm) 249 at [254]. It is fair to say, however, that there has been at least some judicial consideration of the matters arising by Briggs J in Crane v Sky In-Home Service Ltd [2007] EWHC 66 (Ch), though it was noted that the meaning remains “somewhat elusive.” In any event, the fact that a complex and novel issue or issues is or are raised is a factor that I address in due course below.[25]The next most substantial group of claims is the Franchise Remuneration Claims, comprising four categories of claims concerning four sets of decisions by Vodafone regarding the remuneration paid to franchisees under its FAs. The combined alleged value of the franchisee remuneration claims is £30.8 million, 35% of the total alleged claims value. The Franchise Remuneration Claims are themselves characterised by Vodafone as raising “novel questions concerning the construction of Vodafone standard form FAs and the scope of implied duties and ‘relational contracts’”. On each claim, and has already noted, the relevant Claimants allege that the impugned decisions were taken by Vodafone in breach of implied Braganza terms and/or implied duties of good faith, as a result of which they allege they have suffered damage in the form of lower franchise remuneration. Save for one small category, each of the decisions was and is alleged to have been made in relation to all of the relevant Claimants and proprietary decisions is, as such, a common issue.[26]Vodafone denies that such implied duties are owed. Accordingly, all of the Franchise Remuneration Claims turn on the correct construction of the FAs, which are on materially identical terms for all Claimants. As for Vodafone’s decisions, Vodafone takes issue with the particularity of the Claimants’ cases on breach of duty (and as to how each decision is said to have been unlawful or improper), but in any event, even if such terms are applied, Vodafone stands behind each of its decisions, which Vodafone says were taken in good faith for proper purposes in the exercise of Vodafone’s contractual rights.[27]As already noted, there are a group of smaller claims, namely the Fines and Penalties Claims, the Underpayment Claims, the Underlease Claims and the Notice Period Claims, total value of which is £1.8 million, representing less than 2% of the total alleged claims value. The Fines and Penalties Claims account for approximately £1 million of this and turn upon questions of construction that are similar to those in the Franchise Remuneration Claims, as well as questions of whether penalties fell foul of the rule against penalties. As already noted, Vodafone also has set-off defences in respect of several Claimants’ claims worth a total of £4.6 million, although the Claimants join issue on such rights of set off.[28]In the circumstances where this is the course adopted by the parties, it is convenient to address the relevant considerations under the headings summarised in Jinxin at [22] (which are themselves distilled from Electrical Waste Recycling and Daimler), albeit the parties addressed them in a different order. In circumstances where that order ends with (but does not fully address) an aspect which is of some concern to me, I am content to consider the considerations in the same order. Whether there are difficulties of defining an appropriate split or whether a clean split is possible.[29]The issues in each of the main claims (the Commercial Agency, Franchisee Remuneration and final Fines and Penalties Claims, which together comprise 95% of the total alleged claim value) can be cleanly divided, I am satisfied, into:(i) issues of liability and a few issues concerning the general approach to quantum on the Commercial Agency Claims, all of which are common issues to all of the relevant Claimants; and(ii) issues of quantum which are Claimant specific. I agree that these factors all point towards a split trial. However, I do consider it important that as many of the issues concerning the Commercial Agency Claims as possible should be heard together, which is of relevance in the context of the remaining dispute in relation to the proposed expansion of Issues 10(a) and 10(b) (developing out of what were Issues 14(a) and 14(b)). I address this aspect in due course below. but it in mind when addressing the various considerations in relation to whether to order a split trial.. What are likely to be the advantages and disadvantages in terms of trial preparation and management.[30]It is said that the envisaged split in relation to the trial will have a number of advantages which are likely to be significant. First, it is said that the parties estimate that Trial 1 of their proposed trial issues will last six to eight weeks (Vodafone’s estimate) or ten weeks (the Claimants’ estimate).[31]Much of the difference between the two is largely due to additional pre-reading time for the judge and time after evidence for written closings and the judge’s consideration of the same, with an estimate per Vodafone of four weeks for Trial 2, with which the claimants do not disagree. On any view, a trial of all issues would be significantly longer, and so there would be a potential time saving in a split trial (assuming all or part of Trial 2 is not necessary).[32]Secondly, the Common Issues of liability on the Commercial Agency Claims, the Franchise Remuneration Claims and the Fines and Penalty Claims may be dispositive of those claims in their entirety, meaning that the extent that those issues are determined in Vodafone’s favour in Trial 1, the time and cost of Trial 2 of the quantum issues for those claims in relation to all 62 Claimants representing 95% of the total alleged Claimant value, may be avoided. Even if Vodafone succeeded at Trial 1 on only one set of claims (e.g., the Commercial Agency Claims), that would reduce the number in quantum of claims considerably and save significant time and costs.[33]Any such time savings would benefit not only the parties, but also the Court and other Court users in terms of tying up judicial time for a lesser period. There are also likely to be savings dependent on the outcome of Trial 1. For example, if Vodafone succeeds on all or some of the issues in Trial 1, that would be likely to avoid the disclosure evidence and trial preparation necessary for Trial 2 in relation to various quantum issues, which is itself likely to be a considerable time and cost saving. That would include in relation to expert forensic accountancy evidence were that to be required in relation to Trial 2.[34]Trial 2 will not, however, be obviated in its entirety, as it is currently the case that a Trial 2 would be required in any event on the parties’ proposals in relation to the underpayments claims and under lease claims, all of which would be subject to the Vodafone’s alleged set-off defences. However, the combined value of those claims is only approximately £555,000 and were such claims not to be narrowed or settled following Trial 1, there might be other possible modes of trial, including a transfer to the Circuit Commercial Court or the County Court as appropriate. Whether a single trial to deal with all issues will lead to excessive complexity and diffusion of issues or place an undue burden on the judge hearing the case.[35]There is certainly a risk that, in addition to a single trial being longer or more complex, it could also become unwieldly, if all possible permutations had to be addressed. There would also have to be disclosure, evidence and submissions on the numerous Claimant specific quantum issues in all of the claims, all or some of which might, in the final analysis, prove to be irrelevant depending on the outcome of Trial 1. The likelihood is that the Court would consider it necessary in a single trial to rule on all of those quantum issues, even if it found, for example, for Vodafone on liability, on the basis that all of the evidence and argument on quantum had been heard in a single trial, such that findings should be made in anticipation of any successful appeal on liability. I agree that that would significantly increase the burden on a judge trying a single trial and add to the time required for judgment. I agree it would be a paradigm example of a single trial in which there would be “a large number of possible permutations of loss and damage” arising “depending on the judge’s conclusions as to liability”, as referred to in Daimler at [29].[36]Further, it would be necessary in a single trial to try the claims on alternative bases, given that there is a dispute as to the correct approach to quantification. If, contrary to Vodafone’s case, the Regulations applied to the Claimants’ activities as franchisees, Vodafone’s case is that any goodwill generated by the Claimants’ respective sales of Vodafone’s services is irrelevant to the calculation of indemnities under Regulation 17(3)(a), on the basis that the Regulations apply only to a commercial agent’s activities in relation to goods. The parties agreed that that question should be tried as a common issue in Trial 1, List of Issues Matrix 10(a), as a question of law which can conveniently be addressed alongside the question of whether the Regulations apply at all. The resolution of that issue will determine whether any indemnities considered in Trial 2 should be quantified by reference to the goodwill from services. There are now proposed enlargements to Issues 10(a) and 10(b) that the Claimants submit can and should usefully be tried with any Trial 1.[37]Summarily, the parties have agreed that the correct method for quantifying the “substantial benefits” to Vodafone from any goodwill generated by the Claimants under Regulation 17(3)(a) should be determined in Trial 1, as to which there is a dispute between the parties: see what was List of Issues Matrix Issue 10(b). That again is a question of law which can be considered in the context of the application of the Regulations at Trial 1.[38]As foreshadowed, and as I will deal with in due course, the Claimants have proposed amendments to issues 10(a) and 10(b), which they say can, and should, be determined in Trial 1. Having such issues determined in Trial 1 will mean that if the Claimants succeed on liability on the Commercial Agency Claims, the indemnities can be quantified, according to one method, in Trial 2, as opposed to being quantified on different methods in a single trial. Again, I address the proposed revised Issues 10(a) and 10(b) separately below, but as will appear, I consider that there is much to be said for them also to be included in Trial 1, if there is to be a Trial 1. Whether a split trial will impose an unnecessary inconvenience and strain on witnesses who may be required in both trials.[39]I accept the parties’ respective submissions that this is unlikely to be a concern. For Vodafone’s part, its witness evidence for Trial 1 will primarily concern:(i) As regards the Commercial Agency Claims, the aspects of Vodafone’s business relevant to the question of whether the Regulations apply; and(ii) As regards the Franchise Remuneration Claims and Fines and Penalty Claims, the propriety of Vodafone’s decisions.[40]That witness evidence will not be required at Trial 2. Such witness evidence as may be required at Trial 2 will concern questions of quantum, which is unlikely to be provided by all of the same witnesses and who may not ultimately need to be called to give evidence at trial (to the extent that the quantum issues can be determined on documentation and data). As for the Claimants, any inconvenience or strain on them is likely to be mitigated by the parties’ proposals on sampling (addressed separately in due course below). Whether the prospective advantage of saving the costs of an investigation of the issues to be determined at the second trial, if the determination in the first trial renders it unnecessary to determine such Issues, outweighs the likelihood of increased aggregate costs if a further trial is necessary[41]On balance, and having heard the parties’ submissions on this, I consider that it does, whilst recognising that there remains a possibility that a split trial could increase overall aggregate costs depending on particular outcomes. However, the parties are alive to that risk and they each maintain that a split trial is the appropriate way forward. Whether a split may cause particular prejudice to one or more of the parties (for example, by delaying any ultimate award of compensation or damages)[42]The parties are each of the view that a split trial is appropriate, and they consider that it represents the most effective and proportionate way of trying the claims. However, as addressed below, I have a concern about delay in the context of possible appeals as a result of the bifurcated appellate process. I address this below.

Whether a split trial would assist or discourage mediation and/or settlement

[43]I tend to agree that a split trial, together with sampling, is likely to assist and encourage a settlement of this matter because of how it will streamline the proceedings (and provide guidance on as many important issues as possible). By contrast, a single trial of all liability and quantum issues across nine sets of claims for 62 Claimants would likely prove harder to settle because of the huge range of possible outcomes and the extent to which it would consume the parties’ attention and resources in preparing for it. What weight is to be given to the risk of duplication, delay and the disadvantage of a bifurcated appellate process? And generally, what is perceived to offer the best course to ensure that the whole matter is adjudicated as fairly, quickly, and efficiently as possible?[44]The parties rather run these two questions together, and it is striking (and perhaps telling) that neither of them really grappled with the former question and the potential disadvantage of a bifurcated appeal process in their skeleton arguments. As already identified, the Commercial Agency Claims represent by far the most substantial category of claims and that has been highlighted by Vodafone, in particular that they raise “complex and novel” issues in relation to the Regulation. I consider that there is every likelihood that if a party is unsuccessful in respect of particular such issues on the Commercial Agency Claims and, indeed, on certain of the other claims, they will seek to appeal the same to the Court of Appeal, which will introduce an inevitable element of delay and further delay on the assumption that Trial 2 is held up in the meantime. The consequences of this could be considerable, both in terms of time and costs.[45]I am of the view that this consideration weighs heavily in the balance and has caused me to reflect whether a split trial is, in fact, appropriate, notwithstanding the parties’ support for the same. However, I do not lose sight of the fact that the parties make the proposal they do with their eyes wide open as to this consideration, and it has not deterred either of them from advocating a split trial. Indeed, in the course of the oral hearing, it was in fact suggested that any appeals being heard at the end of determination of the issues of principle in a Trial 1 could in fact have positive benefits as an appeal at the end of a single trial could mean that the appellate findings might result in quantum aspects having been dealt with on a wrong basis, with them having to be revisited as a result of appellate findings. I can see that there is some merit in such submission.[46]Ultimately, and weighing all the factors in the balance together, I have concluded that a split trial does offer the best course to ensure that the whole matter is adjudicated as fairly, quickly, and efficiently as possible, notwithstanding my concerns that arise from a bifurcated appeal process. In reaching such conclusion, I have borne in mind (and weighed in the balance) the consideration that as much as possible should be tried in Trial 1 (as addressed above and in California State Teachers at [29], in particular in relation to the Commercial Agency Claims, as further addressed below.[47]Accordingly, I consider it is appropriate, subject to finalisation of what is to be included within Trial 1, that there be a split trial into Trials 1 and 2 in accordance with the List of Issues Matrix.

C.3 Commercial Agency: Modified Issues 10(a) and 10(b)

(a) and 10(b)

[48]Vodafone, whilst recognising that they are Issues for determination at some stage objected to Issues 14(a) and 14(b) being included in Trial 1. These Issues are:
“(1) Does the Claimant satisfy the criteria under Regulation 17(3)(a) (i.e. did it bring in new customers or significantly increase the business with existing customers)?” and “(2) Does Vodafone continue to enjoy the substantial benefit of any new business brought in by the Claimant?”
[49]It will be seen that both Issues concern the Claimants’ claims under Regulation 17. They arise if the Claimants establish their status as commercial agents and the application of the Regulations in principle (agreed Trial 1 Issues). In this regard and subject to any grounds on which the agent may be disentitled from indemnity after termination of their agency contract, the claimants are each entitled to indemnity under Regulation 17(3), if and to the extent that:(1) Each of them has: (i) “brought [Vodafone] new customers”; or (ii) “significantly increased the volume of business with existing customers”; and (iii) Vodafone “continues to derive substantial benefits from the business with” the customers referred to above, Regulation 17(3)(a). The Claimants consider this issue ought to be resolved in Trial 1, whereas Vodafone proposes to delay the resolution of this issue until Trial 2; and(2) The payment of this indemnity is “equitable having regard to all the circumstances” (in particular “the commission lost by the [Claimant] on the business transacted with such customers”), Regulation 17(3)(b). The parties agree this is a question for Trial 2 as part of the final quantification exercise, since it (may) involve upward or downward adjustments to the quantum of the indemnity.[50]The parties agree that two issues concerning Regulation 17(3)(a) should be determined in Trial 1, namely what was the existing Issues in the List of Issues Matrix Issues 10(a) and 10(b). These are the questions of whether, as a matter of the interpretation of Regulation 17(3)(a), any goodwill generated by the Claimants (i.e. new business for the purposes of Regulation 17(3)(a)) includes Vodafone’s services or not, and what is the correct method for calculating the “substantial benefits” of any new business to Vodafone. The resolution of those two issues in Trial 1 is possible and appropriate because they are Common Issues turning on the interpretation of the Regulations, which will significantly inform the evidence required for Trial 2, if the Commercial Agency Claims remain alive.[51]Vodafone’s position is that Issues 14(a) and 14(b) should be Trial 2 issues because they are (as is common ground) Claimant Specific Issues going to the quantum of any entitled Claimants’ indemnities under Regulation 17(3). Those issues will turn on the facts specific to each Claimant’s relevant Stores and will need to be considered for each entitled Claimant at Trial 2 (if the Claimants succeed in their case that the Regulations apply at Trial 1 by reference to documentation and data for each of their Stores, the scope of which will depend on the resolution of Issues 10(a) and 10(b) in Trial 1).[52]There might have been some force in Vodafone’s submissions if Issues 14(a) and (b) had been included as drafted in Trial 1 because of the inclusion of Claimant-specific Issues. However, very shortly before the hearing, the Claimants proposed reformulated Issues 10(a) and 10(b), which seek to address Vodafone’s concerns and ensure that important issues of principle are determined at Trial 1.[53]The reformulated Issues are as follows: New issue(s) replacing 10(a) and 14(a) for the purposes of Trial 1 (1). Is any goodwill generated by the claimant in respect of sales of Vodafone services (including combined handset-airtime transactions) at any of the relevant Stores relevant to the Regulation 17(3)(a) analysis; (2). What categories of business with new customers, or an increase in the volume of business with existing customers (“New Business”) are covered by Regulation 17(3)(a); (3). In what causative sense must the claimant bring in New Business? (emphasis added) New issue(s) replacing 10(b) and 14(b) for the purposes of Trial 1 (4). What is the correct method for quantifying any substantial benefits to Vodafone from new business under Regulation 17(3)(a), including what categories of substantial benefits did Vodafone derive from the new business?[54]I was addressed by both David Lewis KC, on behalf of the Claimants, and by Jasbir Dhillon KC, on behalf of Vodafone, in relation to these new proposals. In relation to the first paragraph, that in fact tracks the language of the already agreed Issue 10(a), subject to adding in the words “including combined handset-airtime transactions”. Ultimately, following discussion, and subject to having the opportunity prior to the Prder being drawn up to finalise the precise wording, Mr Dhillon KC did not object to the inclusion of those words, in which was otherwise already an agreed issue for Trial 1. I agree with their inclusion.[55]Turning to Issue 2, which it will be recalled is, “What categories of business with new customers or an increase in the volume of business with existing customers (new business) are covered by Regulation 17(3)(a)?” This was intended to capture issues of principle as identified by Mr Lewis KC which it was submitted are best determined at Trial 1, and which will best further the prospects of settlement and/or mediation at the end of those issues being determined.[56]Mr Dhillon KC initially objected to the inclusion of Issue 2 on the basis that, although the subject matter of Issue 2 is an agreed issue, which will have to be determined at some point, he did not consider that there had at this stage been sufficient pleading or particularisation of what those categories of business were said to be. There was some force in that submission but, as Mr Dhillon KC candidly acknowledged in the course of oral argument, that could be cured by a Request for Further Information along the lines of, “What categories of business with new customers, or an increase in the volume of business with existing customers (new business), are covered by Regulation 17(3)(a)?”[57]I consider that, subject to directions being given for such further information being provided by the Claimants and, if necessary, a response from the Defendant so that their position is also clear, it is appropriate to include within Trial 1 such an issue, because it is an issue of principle, which will be important in the context of the Commercial Agency Claim, which is by far the largest of the claims, and which will maximise the chance of the Court giving clarification and guidance which will further settlement and/or associated mediation.[58]Mr Dhillon KC had a residual point that he would wish to consider the precise wording of that issue and, in particular, the words “are covered by”, in circumstances where there might be alternative possible words which more accurately capture the issue to be considered in Trial 1 - for example, the words “are covered by” could be substituted for the word “within”.[59]I agree that it is sensible that the finalisation of the precise wording of the issues is a matter which can be left to the good auspices of leading counsel for the Claimants and the Defendant in advance of the drawing up of the Order itself, but, subject to that, I do consider that Issue 2 can form part of Trial 1 and should form part of Trial 1.[60]Issue 3, which it will be recalled is, “In what causative sense must the claimant bring in the new business?” Mr Dhillon KC objects to that, because he says it is not at all clear what pleaded case there is on the part of the Claimants as to causation, or indeed what is meant by the words “In what causative sense must the claimant bring in new business?” However, it was clarified by Mr Lewis KC that, in essence, what he was seeking to achieve by Issue 3 is the issue on which there has been some authority, namely, that of Moore v Piretta PTA Ltd [1999] 1 All ER 174, a decision of John Mitting QC (sitting as Deputy

Judge of the High Court), including, in particular, at page 180G, where the judge said this:

“Likewise, the next clause that appears, ‘or has significantly increased the volume of business with existing customers,’ requires no more and no less than that the agent should be instrumental in so doing. My construction of that part of reg 17 appears to accord with the view of the Commission and with their view of German law practice.”
[61]Mr Lewis KC made clear that, essentially, what he was seeking Issue 3 to deal with was that issue, which was grappled with by the judge in Moore v Piretta PTA Ltd. During the course of argument, I proposed that proposed Sub-Issue 3 could be replaced with an issue asking whether, in relation to Regulation 17(3)(a) and the words “or has significantly increased the volume of business with existing customers - what is required by that?” which would allow each of the parties to identify their case in relation to that, and which, again, could usefully be dealt with in the first Trial, maximising the issues to be determined at that stage, which will maximise the guidance given to the parties and will maximise the chances of a successful mediation and settlement. In this regard, and to the extent that the parties consider it necessary, it would be possible for each party to be directed to set out their case in that regard in a short document, so that the parameters of that dispute are clear.[62]So far as Issue 4 is concerned, which modifies Issue 10(b), the first part of Issue 4 tracks the language of 10(b), but adds in the words, “Including what categories of substantial benefits did Vodafone derive from the new business?” In that regard, an issue arose in the course of oral argument as to whether in fact that had been pleaded, or what that meant. I was taken to the Reply and Defence to Set Off, which provides, at paragraph 40.2.5, as follows:
“As to RFI Question 10.4, the substantial benefits that inured to Vodafone were (without limitation): 40.2.5.1. Increasing the revenue of Vodafone (by sales in Store and/or online); 40.2.5.2. By operating a in locations (which Vodafone chose) and/or by Webchat: 40.2.5.2.1. increasing territorial reach and broadening of customer base of Vodafone; 40.2.5.2.2. in the case of Stores facilitating customers who want or need in-person assistance and so increasing customer satisfaction and loyalty; 40.2.5.2.3. further, by reason of those factors, increasing overall positive brand value in Vodafone.”
[63]Having considered paragraph 40.2.5 during the course of oral argument, Mr Dhillon KC accepted that the Claimants have particularised the categories of substantial benefits which it says Vodafone derive from the new business in that subparagraph. I agree. I also consider that there is considerable utility in that issue being determined in Trial 1, for the same reasons that I have already identified in relation to other issues, in particular in relation to giving guidance to the parties and maximising the prospects of a successful mediation and/or settlement. To the extent that any of those issues require disclosure and even potentially expert evidence, I do not consider that such matters derogate from the utility of them being tried as part of Trial 1, and, indeed, I consider that to be a small price to be paid in order to give further guidance in relation to the general principles in relation to Regulation 17(3) to assist the parties on what is by far the largest part of the claim.[64]Accordingly, I consider that the new reformulated issues, subject to the modification to sub-Issue 3 that I have identified, should form part of Trial 1, In this regard:-(1) It is important that Trial 1 should involve the trial of as much as possible, it being a better use of Court resources and case management to try as much as possible in one go (see California State Teachers’ at [29]).(2) More specifically, the Commercial Agency Claims based on an alleged claims value of £52 million (59% of total claims) are by far and away the largest claims and, as such, as many associated issues of principle in relation to the regulation should be determined as possible in Trial 1, so that the maximum guidance is given to the parties. To defer such issues of principle would be contrary to that objective, would result in less guidance, and would reduce the possibility of settlement, which are all relevant factors as to whether to order a split trial in the first place. In this regard, any likely increase in costs and time preparing for Trial 1 (which I consider in any event to have been overstated) would be outweighed by the benefits.(3) I am satisfied that the reformulated issues can and should form part of Trial 1, subject to further information and finalisation (as indicated in the respects that can be addressed hereafter and before the Order is drawn up).(4) Perhaps most importantly of all given the quantum of the Commercial Agency Claims, having these reformulated issues determined will provide considerable steer to all Claimants and Vodafone as to the Court’s approach to such issues and the prospect of monetary recoveries for all Claimants, which is likely to be invaluable in maximising the chances of a successful mediation/settlement and minimising the possibility that Trial 2 will be necessary, thereby furthering the overriding objective and reducing costs overall.[65]Accordingly, in the above circumstances, and for the above reasons, I direct that there be a split trial, divided as per the List of Issues Matrix, as agreed, to also include the reformulated issues 10(a) and 10(b), coupled with the provision of Further Information.[66]There are certain other issues that remain the subject of correspondence and a prospective Request for Further Information, as I understand it, which I do not need to address. If necessary, the parties can seek further direction from the Court in due course should agreement not be reached.

SAMPLING

[67]The parties are agreed in principle as to the use of Sample Claimants in relation to Trial 1, albeit there was, until recently, a difference between the parties as to sample size and renomination mechanism if there were overlapping proposed Sample Claimants. The Court has an inherent power as part of its case management powers to order sampling of claimants for the purpose of taking their evidence and their participation in the first trial (as to which see the breadth of CPR 3.1(2)(p) and see McClean & Ors v Thornhill [2019] EWHC 3514 at [2]).[68]As was stated by Fancourt J sitting with Master Kerr in Lancaster & Ors v Peacock [2020] EWHC 1231 (Ch) at [2] and [3]:
“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.”
[69]The aim, then, is to produce Sample Claimants who are broad enough and sufficiently representative of the Claimants as a whole across all claims, so as to enable, firstly, the Court to fairly and efficiently determine the Common Issues on that basis and, secondly, the Non-Sampled Claimants to predict with reasonable accuracy the outcome of their cases on Claimant-specific Issues. This should dictate the number of Sample Claimants and their attributes.[70]Until very recently, the parties had not been able to reach agreement on sample sizes or renomination in case of duplication. However, I am pleased to say that by the time of the conclusion of oral submissions, the Claimants and Vodafone were in agreement that each party shall select eight Claimants to be Sample Claimants, and that in the event that the overlap between the Claimants selected by the parties pursuant to that provision is four or more, the Claimants by 4 p.m. on the date, which is seven days following the date under that provision, the Claimants (collectively) and the Defendant shall be entitled to nominate up to two additional Claimants each. There is a provision that in the event of a dispute over the selection of Claimants, including as to the quantity of Sample Claimants, either party can make an application to the Court, to be resolved on the papers unless the Court requires a hearing. I agree with that proposal in relation to sampling and with the fallback position in relation to application to Court. Any such application can be made to the paper application judge for the week when such application is made.

THE CO-COUNSELLING APPLICATION

[71]When these proceedings were commenced, all of the then Claimants were jointly represented by IBB Law (which was subsequently acquired by Knights in early 2025). A Statement of Truth was signed on behalf of all of those Claimants by IBB Law on page 3 of the original Claim Form.[72]The day after service of the proceedings, Bird & Bird came on the record for Claimants 31 to 61 (see Form N434 and Bird & Bird’s letter of 11 December 2024). No explanation was provided by Bird & Bird (or Knights) for that change in representation for half of the Claimants either when serving the Form N434 or in response to Vodafone’s immediate questions about it.[73]Vodafone pointed out to the Claimants’ firms on 11 December 2024 and 18 December 2024, that the Claimant would need to make an application to the Court in relation to such separate representation, but no application was made at that time or for that matter, in the ensuing 15 months of the litigation whilst the claims were extensively pleaded out and responded to.[74]The Claimants’ position at the time was that no Court order was required because the Court had “accepted the notice of change filed on behalf of the B&B Claimants,” and Bird & Bird were “recorded on CE-File as being on the record for the B&B Claimants.” That suggestion, which was clearly misplaced given that CE-Filing was no more than an administrative process, was not pursued on the Co-Counselling Application.[75]The position is that legally represented Co-Claimants bringing claims within one set of proceedings must be jointly represented, unless the Court makes an order authorising separate representation, which it will rarely do, and will do so as to avoid injustice (see Lewis v Daily Telegraph Limited (No.2) (“Lewis”) [1964] 2 QB 601 at [622] to [623] (per Pearson and Russell LJJ) and Ong v Ping [2015] EWHC 3258 (Ch) at [38] to [46] (per Morgan J)).[76]An example of where separate representation may be appropriate is where there is an actual or potential conflict of interest between separate claimants or groups of claimants. There is no suggestion of a conflict of interest between the two Claimant groups in the present case, and this is evidenced by the use of a common counsel team and the intended continued use of such a team to trial.[77]It is clear from the authorities that separate representation is an “irregularity” with the proceedings which co-claimants must apply to the Court to cure. As will be apparent, that was not done for a very considerable period of time in the present case. It is now acknowledged by the Claimants that the separate representation requires the Court’s approval, and that the co-counselling approach to date in that sense, is irregular (Claimants’ Skeleton Argument, para.13). The Claimants invite the Court to cure that irregularity by acceding to the Co-Counselling Application.[78]The irregularity of the Claimants’ dual representation was not merely a point of form. When the Claimant firms refused to apply for permission for both to act in December 2024, they claimed that Vodafone could not “demonstrate any prejudice.” However, that is not the relevant test, and there is certainly no burden on the other party to demonstrate prejudice.[79]However, any prejudice is undoubtedly a factor that a Court will wish to consider on any such application. It is not difficult to see the potential prejudice to arise in a given case, for example, as to duplication of costs, having to deal with more than one set of solicitors and associated delay to give but three potential examples. Similar matters were raised by Vodafone in its correspondence with the Claimants over an extended period of time, but the same did not provoke the requisite and necessary application on the Claimants’ part. There was extensive correspondence over an extended period of time, including some correspondence from Bird & Bird, including on 9 April 2025 in which various proposals were made. Nevertheless, and as Mr Griffiths ultimately candidly accepted on behalf of the Claimants, no application was ever made, whether on terms making proposals or otherwise.[80]It was only on 18 March 2026, and so very shortly before the long-scheduled hearing of the Case Management Conference, that the Claimants made the Co-Counselling Application by application notice with a four-hour estimate (and so a “heavy application” within the meaning of the Commercial Court Guide). Quite apart from the fact that the Co-Counselling Application should have been made much earlier (in reality, at the outset of the litigation), as a heavy application, it should have been made well before the date of the Case Management Conference to comply with the timetable for heavy applications, and to allow sufficient time for responsive evidence.[81]The supporting evidence was served the following day, Thursday, 19 March 2026. In point of fact, it should also have been served with the application notice, with the result that the time to respond was further shortened. The supporting evidence consists of a witness statement from Russell Ford, a partner in Knights, and a shorter witness statement from Victoria Hobbs, a partner in Bird & Bird (endorsing and supporting the points made by Mr Ford).[82]The witness statements, supported by the Claimants’ Skeleton Argument, set out the bases on which it is submitted that it is appropriate for the Co-Counselling Application to be granted. Whilst certain matters were foreshadowed in Bird & Bird’s letter of 19 April 2025, such matters were explored through considerable correspondence between the parties over an extended period of time, and now involves the proposals which are designed to meet the concerns of Vodafone, and indeed the likely concerns of the Court, to be viewed in the context of an actual application to the Court, which, as I say, was never made previously.[83]In the light of such matters, and subject to finalisation of such proposals, Vodafone now feels able to adopt a neutral approach to the application and has withdrawn its previous opposition to separate representation and the Co-Counselling Application remains. It remains, however, for the Court to be satisfied that it is appropriate to accede to the Co-Counselling Application.[84]Mr Ford’s statement explains that the co-counselling approach was put in place prior to the issue of proceedings, and that a steering committee provides instructions from the Claimants to both law firms and to counsel. Although it is accepted that two firms acting for different groups of Claimants in the same litigation could result in duplication of work and therefore costs, the Claimants’ position is that they have been conscious of this risk and mitigated against it. It is submitted that the specific approach taken by these Claimants to their representation, combined with the order that the Court is invited to make in respect of inter partes costs, as addressed below, means that the Court should permit the Claimants’ choice of representation and give permission for the co-counselling approach to continue.[85]In relation to the authorities, it is pointed out that the particular concerns expressed in Lewis (the possibility of the claimants having two opening and closing speeches, the advantage of co-claimants being permitted to cross-examine witnesses who would be substantially on the same side, and the co-claimants being permitted to cross-examine the defence witnesses separately) would not apply in the present case due to a common steering committee and the use of the same counsel. That is true, subject to any residual concern about the potential for conflicts to arise in the future. It is also pointed out that in Lewis, whilst Sellers LJ agreed that the case was irregular such that it could not be tried, and although it was not justified on the basis advanced, he did not want to prejudge the question of whether a method might be found by which separate representation might be permitted.[86]In Ong, Morgan J recorded that the parties had not suggested that the introduction of the Civil Procedure Rules had affected the relevance of the Lewis decision, and he also noted a submission that had been made that:
“If anything, the disinclination against separate representation for joint claimants should be stronger under the CPR given the elements of the overriding objective as to saving expense and dealing with cases expeditiously.”
[87]It is fair to note, however, that the CPR also heralded in an era of more active case management and associated powers to ensure that litigation is managed flexibly and to promote access to justice. This undoubtedly can include the making of orders as to co-representation in appropriate cases, as is also common in group litigation, although no Group Litigation Order has been sought in the present case. Nevertheless, due to the potential disadvantages of separate representation, separate representation (absent conflicts of interest) is very much the exception rather than the norm, is not to be encouraged and, if it is to be allowed, must be applied for, and justified, on the facts of a particular case.[88]The rationale for the co-counsel in the present case appears to be that without it the Claimants could not afford appropriate representation to trial, which it is said would be a denial of access to justice, and that economies can be achieved by using Knights for many aspects of the litigation (with considerably lower hourly rates) whilst drawing upon the expertise of Bird & Bird where necessary.[89]If one were starting with a blank canvas before litigation had commenced, I doubt whether the Court would view such a model favourably (at least without appropriate safeguards) given the risks as to duplication of costs and the like and, starting from scratch, one might envisage that one firm could properly handle the litigation and at proportionate cost.[90]However, the reality is that the action has been proceeding for a considerable period of time now and a package of measures is proposed which has assuaged Vodafone’s concerns, and which leads me to conclude that it is appropriate to accede to the Co-Counselling Application on the particular facts that have arisen, and only on appropriate terms which are designed to ameliorate any potential prejudice to Vodafone and provide for an appropriate modus operandi going forward, and which I address below.[91]As such, nothing in this judgment is intended to foreshadow that this Court will be any more willing in the future to countenance separate representation in any particular case than in the past. This case turns, as they say, on its own particular facts. In the future, and should parties be considering co-representation, they should be under no illusion that any such application should be made at the outset of proceedings, and they will face a substantial task to persuade the Court as to the appropriateness of such a course.[92]The first, and most important, order I intend to make is an order that “any order for costs in the Claimant’s favour in these proceedings will be limited to those costs which would have been incurred if the Claimants had instructed one firm of solicitors”. This should ensure that any additional costs that might be incurred as a result of the co-counselling approach should not fall at the feet of the Defendant.[93]Secondly, it is necessary that the information will be available for the time of detailed assessment to ensure that such order is implemented. It may well be, as Mr Griffiths submitted to me during the course of the argument, that this information will be available and prepared for detailed assessment in any event. Nevertheless, I make clear that each of Knights and Bird & Bird must keep records in sufficient detail to identify what fee earners in each firm have billed costs in relation to each stage of the litigation and what for. This is to ensure there is no duplication of costs and, if there is, it can be identified. Thus, it should be clear, for example, if witness statements were reviewed by a Grade B fee earner at Bird & Bird and a Grade A fee earner at Knights (or vice versa) in circumstances in which the Claimants intend to run “lean teams” so that no more fee earners will be involved on any given matter than if only one firm were instructed.[94]Thirdly, one of the Claimants’ firms shall be nominated as solicitors responsible for all case management matters and sole point of contact for all such matters up to and including trial. In the interests of saving costs, that firm shall be Knights. Bird & Bird shall simply be copied in in relation to all such correspondence for information only (and should not normally need to review the same).[95]Fourthly, the Claimants shall indicate to the Defendant on an ongoing basis which firm shall be the single point of contact in relation to each issue, responsible for each particular workstream.[96]Fifthly, the Claimants have confirmed, and will be held to such confirmation, that they will continue to instruct the same counsel team and that they will do so for the duration of the proceedings.[97]Inevitably, there will need to be liberty to apply in the case of any unforeseen events in the future, as in any litigation, but I am satisfied that these measures will ensure that the parties are placed on a level footing, and that any additional costs that might be incurred as a result of the co-counselling approach should not fall at the feet of the Defendant.[98]It is in such circumstances, and with such measures in place, that I accede to the Co-Counselling Application. The terms of the Order will be finalised with the assistance of counsel.

COSTS OF THE CO-COUNSELLING APPLICATION

[99]The Claimants realistically do not suggest that they should have the costs of the Co-Counselling Application but do say that the correct order should be costs in the case, on the basis that this was a case management matter, and that case management matters are usually costs in the case.[100]For its part, Vodafone seeks its costs of the Co-Counselling Application, submitting that the Claimants would always have had to apply to the Court to cure what the Claimants candidly accept was an irregularity, that the course the Claimants adopted of not applying to the Court over an extended period of time was wrong in principle, that it resulted in extensive correspondence in which Vodafone rightly pointed out that the Claimants should have made, and should make, an application to Court, and in which it sought to tease out why the Claimants had instigated co-representation, and why it was said that it was appropriate for the Court to make such an order.[101]It is submitted that it was only through this process, culminating in the very late application, late witness statements, and the proposals in the Claimant’s Skeleton Argument that identified a possible modus operandi, and even then, it was a matter for the Court as to whether it would countenance such an approach with the Claimants, in reality, throwing themselves at the mercy of the Court. They submit the costs are the price to pay for the Claimants obtaining relief, which was the exception rather than the norm, and that was only ever achieved by Vodafone constructively choosing to adopt a neutral stance once the overall proposal had been teased out with their assistance and the assistance of the Court.[102]In this regard, and whilst they recognise that certain of the proposals were proposed in Bird & Bird’s letter of 9 April 2025, it was not even as if Bird & Bird were suggesting that they would make an application to the Court with all of those proposals. In fact, unless Bird & Bird’s explanation was accepted, it appeared that the course that was going to be adopted, and was indeed adopted by the Claimants, was that they would carry on as before.[103]I am reminded of the warning that I made in Daimler at [23], where I said this:
“I take the opportunity to remind parties of the importance of complying with the provisions of the Commercial Court Guide in relation to heavy applications. The timescales there envisaged apply to all such hearings. In future, parties may well face adverse cost orders and may also find that it is some time before the matter can be relisted if the Guide is not complied with.”
[104]That was stated in 2020. Fortunately, we are not in that situation and it was possible – with the cooperation, I might say, of Vodafone – to deal with the issues that arise at this hearing. Nevertheless, ultimately, the Claimants had to come to this Court to regularise their own irregularity.[105]Whatever the position of Vodafone, it was always necessary to convince the Commercial Court that it was appropriate to make an order, which is far from the standard order. Even when the Claimants did apply in their application, only issued on 18 March 2026 and without supporting witness evidence on that date, the order that was sought was as bland and vanilla as “an order that the Claimants be permitted to be represented by Knights Professional Services Limited and Bird & Bird LLP” albeit with the costs proposal in the action that has found favour. The order did not address the other proposals, and it was only on the basis of such other proposals (as refined by the Court itself) that I was even prepared to accede to the Co-Counselling Application.[106]In such circumstances, I am satisfied, beyond peradventure, that the appropriate order is that the Claimants shall pay Vodafone’s costs of the Co-Counselling Application on the standard basis, and I so order.

SUMMARY ASSESSMENT

[107]The next question which arises is the summary assessment of Vodafone’s costs which, after correction to remove VAT, is claimed in a figure of £20,208. Mr Griffiths makes a number of points. The first is in relation to the rate of one of the Grade A fee earners at £410, which is above the National Band 1 at £295. By the same token though, the two other Grade A earners, are at £260, which is below the National Band. This is very high-value litigation, as is clear from my judgment, with some £85 million being claimed, and even for London Commercial Court work is heavy by those standards, and I am told that the Grade A fee-earner, Mr Fiddick, has some 26’ years experience. I bear all of that in mind in the context of the hourly rate.[108]It is said that there is duplication between the two other Grade A fee earners. In fact that is not the case. Kate Ward was working on the case and left in November 2025, and Sam Peace has taken over. It is said that there is excessive hours in terms of letters sent out, but that has got to be set against the backdrop of extensive correspondence over a one-year period involving no less than 13 letters, which has featured prominently in whether or not there should be co-counselling in this case, as will be readily apparent from my judgment. It is also said that counsel fees, which total £11,750, most of which relates to advice rather than the actual hearing, is also excessive, and it is suggested that they should effectively be halved.[109]However, I have to bear in mind that the application itself is very late and no doubt came much of the preparation work had been done for the Case Management Conference. I have no doubt that legal research was needed in relation to the applicable principles, of which there is not a great deal of authority, and important tactical decisions would have had to be made involving all members of the team, and advice given in relation to the appropriate stance of Vodafone. I have to say, the stance of Vodafone, of adopting a neutral stance, was a responsible one, which has greatly assisted the Court in order to reach such a decision, and I am in no doubt that a considerable amount of time and advice would have been needed to reach that conclusion.[110]I remind myself that on summary assessment I adopt a broad-brush approach in relation to what costs were reasonably incurred and proportionate in amount, and, doing the best I can, bearing in mind all those points and the respective submissions on them, I summarily assess the costs at £17,900.

CASE MANAGEMENT DIRECTIONS

[111]The Court then proceeded to give case management directions to trial.