“2. These claimants and numerous others have brought claims against NGN for invasion of privacy in their private telephone messages (both left and received), with unlawful information gathering alleged to have led to the publication of articles about the claimants in the News of the World and The Sun newspapers. 3. For each individual claim relating to unlawful information gathering and articles published about an individual there is also a generic claim based on allegations of institutionalised phone hacking and unlawful information gathering followed by destruction and concealment of data in an attempt by NGN to hide the unlawful activity that had allegedly been going on. Proof of the generic claim, even if it does not relate to publications against the claimants specifically, will form the basis of a claim for higher and/or aggravated damages against NGN by each claimant. 4. There has been substantial rolling disclosure in relation to the generic claim. All the generic disclosure that has accumulated to date has been made available to each individual claimant. In the current tranche of MTVIL claims, there have been numerous applications for further generic disclosure, often based on information newly obtained by previous disclosure applications or by new witness evidence. That process is by and large completed, so far as the trial due to start in November this year is concerned.”
“4. First, as I have said, there has been a long process of generic disclosure applications, the results of which often lead to further disclosure applications, and the volume of generic disclosure already given is huge. That is not to say that it is complete and, indeed, it is part of the Claimant's case that it never will be complete, owing to the destruction of data, but a great deal of material on the basis of which the Claimants will, at trial, invite the drawing of conclusions is already available. Many claims in this and previous tranches of this litigation have settled on the basis of what has been disclosed so far. 5. The second point is that against the background of a generic case that has been evolving since at least 2012, a six-week trial of the 32 or so remaining individual claims is due to start at the beginning of November this year. A considerable amount of work remains to be done to prepare for a trial if the claims do not settle in the meantime. Trial witness statements have not, for the most part, been exchanged. Claimant-specific statements are due by the end of July, and generic witness statements by mid-September. There is also some Claimant-specific disclosure outstanding, as I have said. 6. The factual background and the facts relating to the allegations of unlawful information gathering and concealment and destruction are complex. There is very much more than enough detail in the case already to fill a very busy six weeks. Indeed, if no further claims were to be settled by November, it is most unlikely that all the claims could be tried at that time. The time remaining, both between now and November and the time available at trial, simply cannot accommodate much more in the way of applications for generic disclosure and the lengthy processes of downloading, searching and assessment of results, and volumes of further documents that arise as a consequence, if both sides are going to be able to prepare for trial and the trial will be a manageable and fair process. 7. The third point, which mitigates the second point to some extent, is that no claim in these proceedings has yet come to trial. All claims in the previous three tranches eventually settled, and many claims in this fourth tranche have already settled, as well as other claims where it has not been necessary for a claimant to issue a claim form. There is therefore a proper sense in which these proceedings are being managed for settlement, and considerations of what is likely to promote or facilitate settlement are, therefore, material considerations.”
“2. I am working on the basis that, in the context of this litigation, in view of everything that has happened in the past and the way it is being managed, it is, in my view, highly likely that at least one of those claims will have settled by the beginning of November, maybe more than one, and maybe all of them. If that is not the case and no claim has settled by, I think it is Monday, 25 October, a week before the start of the trial, then counsel and I can review at that stage whether it remains feasible for all three claims to be tried and/or whether all of the 50 selected articles relating to Mr Gascoigne's claim can and should be tried in that trial. 3. It is important, in my view, to identify the claims to be tried now as a first step in seeking carefully to manage the whole trial and the generic claim within the trial. The material in the generic claim is now vast. There can be no more than four weeks in any event, and possibly only three weeks or a little more that, that will be available at the trial for those generic claims. It is, therefore, abundantly clear that not every issue, sub-issue and factual, or even legal dispute in them, can be tried; nor can every potentially relevant witness be called by the parties. 4. It is clear that only those generic issues that are relevant to the claimant-specific claims should be tried, and within that category, only the main and most important issues can be tried within a period of three to four weeks. I will not embark at this stage on any analysis of what are the relevant and important issues, but the parties, and then ultimately the court, will do further work on that in due course. 5. It is clear that the claimants will have to cut their cloth to fit the time that is available, both in respect of the witnesses that they wish to call on the generic claim and the claimant-specific claims for that matter, and the length of their cross-examination of the defendant's witnesses. Equally, I will be astute to ensure that the defendant is given only a proportionate time to cross-examine the claimant's witnesses, not an unlimited and disproportionate time, particularly bearing in mind the extent of non-admissions rather than denials of the claimants' generic claims.”
“Each Claimant will write to the Defendant on a without prejudice basis stating the amount in pounds sterling at which the Claimant values his/her claim. Such valuations will be provided within a reasonable time of the provision of Claimant-specific standard disclosure and in any event, for claims in which up to 100 articles are relied on by the Claimant, within 5 weeks of such disclosure; and for claims on which over 100 articles are relied on by the Claimant, within 6 weeks of such disclosure.”
“6. Mr Hudson on behalf of the defendant does not oppose the production of those documents as such, and does not oppose that way of dealing with what was originally a much wider application for disclosure but he does, remarkably to my eyes, seek to carry out certain reviews of those documents before they are handed over. 7. I say remarkably, because at least one, if not two of the exercises that Mr Hudson proposes, involve his client in, in my view, completely unnecessary costs against a background in which with some justification the defendant has frequently been complaining about the large costs of this action and in particular the disclosure aspects of this action, and in a further narrow particular disclosure going to the generic case. It is to the generic case that these documents are said to go.”
“…has no intention of withdrawing its application. Our client is confident of its position and will seek full cost recovery if it succeeds in striking out your client’s claim or obtains summary judgment. This is a heavy application and, if our client succeeds, will be determinative of the proceedings with substantial costs of the proceedings to date following the event.”
“This court has recently held that, in the case of solicitors' fees, if a rate in excess of the guideline rate is to be charged to the paying party, a clear and compelling justification must be provided: Samsung Electronics Co Ltd v LG Display Co Ltd[2022] EWCA Civ 466 . No such justification has been advanced in this case.”
“It would be naïve to suppose that I am propelling cases to trial with a very good chance that at least one of them will try. I do not believe that to be the case. I believe it is more likely that I am propelling cases towards trial so they are propelled ultimately to settlement before a trial.”
“A costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement.”
“(6) The amendment made by subsection (4) does not prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a conditional fee agreement entered into before the day on which that subsection comes into force “(the commencement date”) if – (a) the agreement was entered into specifically for the purposes of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or (b) advocacy or litigation services were provided to P under the agreement in connection with that matter before the commencement day.”
“They either work… or they do not… If they do not work, the reason, as Lord Steyn pointed out… is simply that upon the true construction of the statute, the transaction which was designed to avoid the charge to tax actually comes within it. It is not that the statute has a penumbral spirit which strikes down devices or stratagems designed to avoid its terms or exploit its loopholes. There is no need for such spooky jurisprudence.”
“a. For the purpose of the recovery of any T4 Common Costs between the T4 Claimants and the Defendant: i. By a Claimant, the recoverable costs of the Claimant shall be such share of the T4 Common Costs of the T4 Claimants together as determined below; ii. By the Defendant, the recoverable costs of the Defendant against a Claimant shall be such share of the T4 Common Costs of the Defendant as determined below; and iii. No assessment of any T4 Common Costs or of any share of such T4 Common Costs shall take place until after the T4 Trial, with permission to apply if such a trial does not take place. The provisions ofCPR 44.2 (8) shall apply to enable appropriate payments on account of T4 Common Costs to be made from time to time as the Court shall direct. b. The share of T4 Common Costs referred to above will be calculated (whether for a Claimant or the Defendant) on the basis of the aggregate across all Periods for which the relevant Claimant is deemed to have been on the T4 Group Register for each Period divided by the total number of Claimants deemed to have been on the T4 Group Register for that Period. c. For the purpose of the share of T4 Common Costs: i. Any T4 Claimant on the T4 Group Register shall be deemed to have been on the said Group Register from the beginning of the First Period; save that any Claimant who by the T4 Cut-Off Date has not entered into a CSA as required by this Order shall be deemed never to have been on the T4 Group Register; ii. Any T4 Claimant who is removed from the T4 Group Register by the Lead Solicitor or by order of the Court shall be deemed to have been removed from it on the end-date of the Period which included the date of removal.” i. By a Claimant, the recoverable costs of the Claimant shall be such share of the T4 Common Costs of the T4 Claimants together as determined below; ii. By the Defendant, the recoverable costs of the Defendant against a Claimant shall be such share of the T4 Common Costs of the Defendant as determined below; and iii. No assessment of any T4 Common Costs or of any share of such T4 Common Costs shall take place until after the T4 Trial, with permission to apply if such a trial does not take place. The provisions ofCPR 44.2 (8) shall apply to enable appropriate payments on account of T4 Common Costs to be made from time to time as the Court shall direct. i. Any T4 Claimant on the T4 Group Register shall be deemed to have been on the said Group Register from the beginning of the First Period; save that any Claimant who by the T4 Cut-Off Date has not entered into a CSA as required by this Order shall be deemed never to have been on the T4 Group Register; ii. Any T4 Claimant who is removed from the T4 Group Register by the Lead Solicitor or by order of the Court shall be deemed to have been removed from it on the end-date of the Period which included the date of removal.”
“(a) the First Period shall be from26 March 2019 , namely the date of the Tranche 3 Consequentials Order…”
“(16) This agreement deals with the New Cost Sharing Claimants’ liability for their own Individual Costs and the New Cost Sharing Claimants’ Common Costs of MTVIL and binds all of the New Costs Sharing Claimants and their Solicitors and each of them with each other; (17) The intention of the parties to this New Costs Sharing Agreement is to share the liabilities for costs equitably in that each New Costs Sharing Claimant will bear his/her own costs of pursuing his/her own claim and an equal share of the New Costs Sharing Claims Common Costs of pursuing MTVIL on behalf of and for the benefit of all New Costs Sharing Claimants;”
“Counsel will each enter into Conditional Fee Agreements (which will provide for a success fee) with Hamlins for all work carried out by Counsel pursuant to this Agreement. The Parties give the Lead Solicitor and Hamlins authority to enter those Conditional Fee Agreements on their behalf.”
““the client” means each and every Claimant who is, has been, or is to be, listed from time to time on the register of Claimants held by the Lead Solicitor in the MTVIL from16 October 2018 ”
“…each and every client…who is, or is to be, listed on the said Register…”
“A party who seeks to recover an additional liability must provide information about the funding arrangement to the court and to other parties as required by a rule, practice direction or court order.”
“(a) that he has entered into a conditional fee agreement with a legal representative and during the currency of that agreement either of them enters into another such agreement with an additional legal representative:”
“This contemporaneous and detailed assessment is obviously an important piece of evidence when considering the prospects of a successful outcome of these proceedings. However, while I am not suggesting that this assessment of the risks was not honest, it does seem to me that it is at least potentially self-serving, prepared as it was by a person employed by the claimants’ solicitors, who obviously have an interest that the success fee is as high as possible, while their clients, the claimants, have no interest in keeping the success fee low, as they will never have to pay it. Indeed, given the financial interest in winning the case which the success fee gives to the claimant’s lawyers, the claimant, if anything has an interest in his solicitors charging a high success fee. My concern about the reliability of the 50% overall assessment is reinforced by the somewhat dubious precision of the figures, especially the 82.5% attributed to “forum”.”
“They will obviously want to do this as at early a stage in the proceedings as possible, since they recover no profit costs if they exercise this right. That will leave them with an enriched, or improved, basket which will again, as a matter of high probability in my judgment, include claims which will fall into a range of something like 50 to 80%, all of which will still have the 100% uplift.”
“The trigger point of the second stage of a success fee is not the principal basis for determining its reasonableness. What is material is whether the success fee is set at such a level which is reasonable in light of the risk of non-recovery of costs anticipated at the date of entry into the CFA.”
“a. The generic case carries great risks, particularly in the hotly disputed areas such as illegal information-gathering activities in the Sun and in the News of the World outside the activities of Dan Evans and the date range of January 2005 to August 2006. The Defendant has made clear on several occasions its intention to contest these areas of the generic case vigorously. b. The nature of the Defendant’s pleaded case on the disputed issues and the minimal information given makes it very difficult to assess the strength of the Defendant’s case. c. The passage of time since the events which are the subject of the pleadings means that it is difficult to adduce evidence proving the allegations being made by the Claimants against the Defendant. d. The generic case gives rise to a very wide range of issues, all of which are the subject of either non-admissions or denials by the Defendant, each giving rise to a risk of an adverse finding and costs consequences. e. The Defendant’s concealment of its wrongdoing and destruction of potentially relevance (sic) has made the task of proving illegal activities considerably more difficult. f. The Defendant has made Part 36 offers in respect of a large number of the individual claims, which has raised the risk involved in proceeding to a later stage. g. This Common Costs CFA covers a large number of cases, many of which are at a very early stage, each with its own unique combination of factors and issues, and with its own risks. This risk assessment encompasses the factors that are identified as applying in the risk assessments of each individual claim. h. The factors that apply in the risk assessments of each individual claim.”
“[106] In concluding this portion of our judgment, we wish to draw attention to an alternative type of success fee, which we consider that it is open to the solicitor and the client to agree at the outset of proceedings. We can describe this as a 'two-stage' success fee. [107] A success fee can be agreed which assumes the case will not settle, at least until after the end of the protocol period, if at all, but which is subject to a rebate if it does in fact settle before the end of that period. Thus, by way of example, the uplift might be agreed at 100%, subject to a reduction to 5% should the claim settle before the end of the protocol period. [108] The logic behind a two-stage success fee is that, in calculating the success fee, it can properly be assumed that if, notwithstanding the compliance with the protocol, the other party is not prepared to settle, or not prepared to settle upon reasonable terms, there is a serious defence. By the end of the protocol period, both parties should have decided upon their positions. If they are prepared to settle, they should make an offer setting out their position clearly and providing the level of costs protection which they determine is appropriate. [109] A further advantage of a two-stage success fee would be the knowledge that if a claim was not settled, the full success fee would be payable. This knowledge would encourage rigorous consideration of the merits of the claim during the protocol period and therefore accord with the intent of the CPR.”
“The two-step fee advocated by the court in Callery v Gray (No 1) is apt to allow a solicitor in such a case to cater for the wholly unexpected risk lurking below the limpid waters of the simplest of claims.”
“We must add that the district judge fell into error not only because he believed that the claimant's solicitor had the power and the duty to renegotiate the level of the success fee once the risks inherent in the proceedings had diminished, but also because he misunderstood what this court said about a two-stage success fee in Callery v Gray. In that case Lord Woolf CJ encouraged lawyers to take seriously the possibility of agreeing an initial success fee of, say 100%, on the basis that if the claim settled within the protocol period (or some other period identified by the parties to the CFA) a lower success fee would be recoverable under the CFA. At the assessment of costs attention would then be paid to the reasonableness of the success fee which was recoverable as things turned out, and as we have observed (see para 21 above), this type of arrangement would lead to a greater chance of establishing the reasonableness of a higher success fee given that the claim did not settle within the agreed period.”
“ii) It is open to the Claimant to choose the date of staging. Since in [U] the Court of Appeal contemplated a low success fee, "perhaps until the service of the defence" and to have the benefit of a high success fee in the cases that did not settle early, I consider there was nothing unreasonable in the Claimant choosing 28 days following service of the Defence as the date on which the 100% success fee would come into effect; a fortiori where, as here, this gave MGN an extra four weeks above and beyond the period mentioned by Brooke LJ in [U] before it would assume any potential liability for a 100% success fee. … iv) [Claimant’s counsel] is right in my view to invite the Court to draw the inference that a Defendant who denies liability and serves a defence containing multiple paragraphs justifying the offending words, must believe that it has a realistic chance of the defence succeeding at trial, as happened here. In my judgment, having not settled the matter in the protocol period and having thereafter served a Defence giving the particulars of justification in the manner that it did (see paragraph 12 ante), it is reasonable to suppose that MGN believed it had a "serious defence" in the nature contemplated by Lord Woolf in Callery v Gray.”
“A two-stage success fee may be used by a solicitor “to protect himself against the risk that the claim might go the full distance” (U v Liverpool para 21). As Master Campbell held in Matthew Peacock v MGN Ltd[2010] EWHC 90174 para 25(ii), it is open to the claimant to choose the date of staging. The claimant must be in a position to justify the percentage uplift for success fees. If, therefore, he elects an early trigger for a higher second stage success fee, he must be in a position to justify the higher risk of non-recovery of his fees at an earlier stage than if the second stage were only reached at or shortly before trial.”
“If the case goes all the way to a hearing there is a prospect of a judge finding against the claimant. On the eve of the hearing, such a risk is present, but in my view it is no more real than it would be when the case was originally being risk assessed. The possibility of a judge being unimpressed with the claimant as a witness, for example, is one about which all litigators are aware and so it can be factored in from the outset. I do not see that the case is in fact any more risky if it only settles a week before trial than if it settled a month or a year earlier. The process of quantification of a personal injury claim takes some time to crystallise and settlements regularly occur close to hearings. If the claimant has prepared for a forthcoming trial and the defendant then settles the case, the defendant will have to pay for those extra costs. It does not mean, in my view, that the case necessarily becomes riskier during that trial preparation period.”
“Insofar as it is not possible to settle claims before the provision of C-specific disclosure, the subsequent phase in which Cs provide a valuation of their claim is critical in achieving settlement of any outstanding claims. It is therefore important for the procedural timetable to build in a sufficient interval between the provision of valuations and exchange of witness statements to allow enough time for the parties to engage in settlement discussions after valuations are sent and before the highly time-consuming and costly exercise of preparing witness statements has to begin.”
“to 50% if the relevant claim concludes at least 21 days after the date by which standard disclosure was ordered to be given but no later than 35 days before the beginning of the trial window [or trial date itself] of the main trial of the [MTVIL]…”
“50% if the client’s claim concludes [after 21 days after standard disclosure] but no later than 21 days after the first exchange of witness statements of fact;”