The Dekagram: 1st April 2025

This week brings a further twist in the long and winding road to group claims, the High Court seemingly favouring ‘omnibus claims’ over the more procedurally complex Group Litigation Order option; and a case on who bears responsibility for transcribing audio files which is of obvious relevance to all those who have had to grapple with how holidays are booked and what has been said at the time (albeit in our experience misrepresentation is a somewhat under-used cause of action in this context).

Angel & Others v Black Horse Limited & Others [2025] EWHC 490 (KB)

The High Court has once again turned its attention to the method by which large group claims should make their way through the courts, augmenting the already substantial body of jurisprudence available in England and Wales in this respect.

The relevant civil procedure rules state:

“7.3 A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

19.1 Any number of claimants or defendants may be joined as parties to a claim.”

This time the case concerns over 6,000 dissatisfied customers of the defendant financiers and relates to the payment of so-called ‘secret commissions’ (or as non-lawyers would describe them, bribes) to brokers. The claims were brought in the Birmingham County Court using eight separate claim forms, one for each lender, but (in generic Particulars of Claim) raising substantially the same issues around unfairness within the meaning of s.140A of the Consumer Credit Act 1974. Prior to filing or serving defences to the claims, each of the defendants submitted to the court that they should be severed, so that rather than dealing with eight claims Birmingham County Court might joyously embrace 6,202 of them. At first instance, His Honour Judge Worster acceded to their submission (not application) and ordered the claimants each to issue separate claim forms, in default of which their claims would be struck out.

The claimants appealed, and our old friend Ritchie J, sitting in the Birmingham District Registry, allowed the appeal. In doing so he provided practitioners with one of his by now familiar masterclasses in the law, setting out at paragraphs [21] to [26] of the judgment the current state of the law on consolidation and omnibus claims. In summary, authoritative guidance has been given by the Court of Appeal in Morris  v Williams & Co Solicitors [2024] EWCA Civ 376 to the effect that the courts must seek to further the overriding objective of dealing with claims justly and at proportionate cost; any further test of ‘real progress’, ‘real significance’ or ‘must bind’ (as suggested by the High Court in Abbott v Ministry of Defence [2023] EWHC 4002) has been rejected. HHJ Worster had relied on the decision in Abbott, which was binding on him at that time, but which had subsequently been superseded by the decision in Morris, and his determination therefore could not stand. Furthermore, in holding that because fairness is a matter of fact which must be ascertained in each individual case he had underestimated the persuasive power of findings which could be made in lead cases and which would identify cohorts of claimants in respect of whom the brokers’ approach had been unfair. Although such findings would not be binding in individual cases, they would plainly influence the parties towards settlement in those cases.

Exercising his discretion under CPR Parts 7.3 and 19.1 afresh, Ritchie J held that the most convenient route to disposal of the claims was the one selected by the claimants – the use of omnibus claim forms, each naming a different defendant. In doing so he identified a handy cut-out-and-keep checklist for the use of practitioners in determining whether or not to get on board an omnibus claim [33]:

1. Whether there are multiple claimants suing the same defendant or multiple defendants.
2. The number of claimants.
3. Whether the claims relate to the same matters or different matters.
4. Whether the claims involve the same causes of action.
5. Whether the issues as set out in the generic POC are likely to be common issues.
6. Whether the case specific claims and defences do or are likely to raise common issues of law or fact.
7. Whether decisions in lead or test cases will be significant for the disposal of following cases so that they will either bind the parties (issue estoppel) or be persuasive in the disposal of issues in the following cases (for example breach of regulatory guidance, agency liability, fiduciary duty, disinterested duty, interpretation of brokerage agreements, the very clear case point, or more generally: breach of duty, breach, liability, causation or quantum).
8. Whether the overriding objective is better met by route one or route two, taking into account the requirement to deal with cases justly and at proportionate cost; seeking to ensure equal footing, full participation, saving expense, proportionality to the sums involved, the complexity and the importance of the case and the financial positions of the parties; whilst allocating an appropriate share of the Court’s resources and enforcing compliance with the rules.
9. Overall, whether all or some of the claims will more conveniently be disposed of together.

Using this checklist in this particular case gave rise to the following conclusions [89]:

1. Whether there are multiple claimants suing the same Defendant or multiple Defendants. These are single Defendant claims. That weighs in favour of omnibus disposal.
2. The number of claimants. There are over 5,800, which weighs in favour of omnibus disposal.
3. Whether the claims relate to the same matters or different matters (see Adams). II consider that the pleaded claims relate to the same or similar matters. It is pleaded that each Claimant entered a consumer credit agreement on (various) standard terms from the same Defendant, for a car, at an interest rate determined by the dealer/broker, under the Defendant’s brokerage agreements (which I infer were probably on the Defendant’s standard terms), involving DC. Each claim involves common, broad allegations. Each is made under S.140A&B of the CCA. This weighs in favour of omnibus disposal.
4. Whether the claims involve the same causes of action. In these claims they all contain the same cause of action. This weighs in favour of omnibus disposal.
5. Whether the issues as set out in the generic POC are common issues. As identified above there are broad common issues and within those are likely to be many specific common issues across all the claims and some common issues specific to bundles of claims. This weighs in favour of flexible omnibus disposal.
6. Whether the case specific claims and defences raise common issues of law or fact. It is very likely that the specific claims will raise common issues relating to facts and matters and law. Some sorts of likely specific common issues were identified in the Claimants’ March 2023 sampling proposals. I have identified some above. This will probably weigh in favour of omnibus disposal.
7. Whether decisions in lead or test cases will be significant for the disposal of following cases so that they will either bind the parties (issue estoppel) or be persuasive in the disposal of issues in the following cases (for example breach of regulatory guidance, agency liability, interpretation of brokerage agreements, the very clear case point, or more generally: breach of duty, breach, liability, causation or quantum). I consider that omnibus disposal will assist in the appropriate choice of lead cases to determine the common broad and specific issues (to be determined later). Separate claims would make choosing lead cases less likely (or not likely at all as the Judge envisaged it) and so random early trials would occur instead of lead case early trials. The significance of the lead case decisions would at least be persuasive. Choice of lead cases would lead to a greater likelihood of solving the main issues early and so settling following cases than random determination of early cases. Omnibus case management would be capable of enforcing issue estoppel on the parties for specific common issues which would be significant. This weighs in favour of flexible omnibus disposal.
8. Whether the overriding objective is better met by route one or route two, taking into account the requirement to deal with cases justly and at proportionate cost; seeking to ensure equal footing, full participation, saving expense, proportionality to the sums involved, the complexity the importance of the case and the financial positions of the parties; whilst allocating an appropriate share of the Court’s resources and enforcing compliance with the rules.

• The omnibus route would favour access to justice for those Claimants with Small Claims Track and Fast Track claims. There is an imbalance of financial power between individual Claimants and the Defendants.
• The omnibus process will disadvantage the Defendants on Claimant legal costs because, by the separate route, many claims will be on the Small Claims Track so that they would pay no Claimant’s legal costs (I assume they would send advocates and pay lawyers to defend each case so would incur their own legal costs), but may save costs overall due to the increased prospects of settling following cases once lead cases are tried. Fewer CMCs would be required by taking the omnibus route, but those which are held would cost much more. The redress sums involved are likely to be small in some cases but I have no evidence of how large or small overall the range will be and redress may be more than just the DC paid.
• Disclosure will be more focussed with the omnibus route and far better timed. Very early disclosure of the brokerage agreements, any accompanying leaflets and the credit agreements should probably be ordered either with the generic defence or soon after, in any event before specific POCs are pleaded. Otherwise amended pleadings will be needed after these documents are disclosed which would increase the costs substantially. In separate claims, disclosure would occur after the pleadings close, which would lead to amended pleadings and more cost. In any event, disclosure would be more limited with individual small claims. This factor weighs in favour of omnibus disposal.
• Court fees will be lost to the Courts by the omnibus route but the Lord Chancellors’ Department or Government has the power to set and choose the level of the fees for omnibus claim forms if that is what they choose. Fee income concern is not a matter for me as a Judge. This is neutral.
• CEFile issues, as highlighted in Adams, are a concern but can be resolved early on by allocating individual case numbers to individual claims once lead cases are to be pleaded specifically, perhaps after early disclosure and questionnaires have been filled by both parties for each claim. This is neutral.
• It is likely that fewer judge hours will be required for the omnibus route in both trials and CMCs than for the separate claim route. Appeals of CMC orders may delay all the claims if they are given permission. However, predicting appeal numbers and times is fruitless. This factor favours omnibus disposal.
• If expert evidence is required to show lending rates at the time for similar car finance, or for credit status, expert evidence in the omnibus claims would be common whereas in separate claims it might not be allowed in small claims and could be disproportionately expensive in a single Fast Track claim. This weighs in favour of omnibus disposal.
• Separate disposal would lead to conflicting decisions.
• Overall, in my judgment, the balance of the overriding objective factors favours the omnibus route.
• Whether all or some of the claims will more conveniently be disposed of together.

         At this early stage I am firmly of the view that omnibus case management is the more convenient route to dispose of these claims and so the Judge was wrong to separate the claims. I do not take this decision just as a difference of view.

With respect, it seems to the author that this decision must be right. Quite how the already overstretched court service and judiciary in Birmingham County Court could have dealt with over 6,000 claimants attempting to issue claims and then progress them through to individual trials, all at the same time, boggles the imagination. Further, the disclosure exercise involved and satellite litigation bound to eventuate would keep a District Judge fully occupied for years before any trials could even commence. The sheer logistical challenge attendant upon the defendants’ submissions, had they been successful, might lead the cynical to conclude that their objective was to discourage the claims, or at least some of them, from being made at all – but that would of course amount to an attempt to prevent the claimants from accessing justice, and this author at least is sure that that would have been the last thing the lenders would wish to achieve.

Clarke v Guardian News & Media Limited [2025] EWHC 550 (KB)

The underlying claim in this case concerns the defamation proceedings currently underway brought by Noel Clarke (who is apparently a ‘celebrity’) against the Guardian newspaper group. Just over a week before the trial on liability the claimant applied for disclosure of transcripts of recordings of various telephone conversations with journalists at the paper. The application was heard by Steyn J on the second day of the trial. The paper resisted it on the basis that the transcripts, as distinct from the recordings of the conversations, were privileged, having been prepared for the purposes of the litigation, and because of the delay in making the application, which was likely to lead to disruption to and distraction from the trial process if it were granted.

The defendant’s standard disclosure list served on 3^rd October 2024 had included 142 audio files (such as recordings of telephone calls). 60 of those audio files were provided to the claimant for inspection and 82 of the recordings were withheld pursuant to section 10 of the Contempt of Court Act 1981. In respect of 77 of the audio files, the defendant had produced its own contemporaneous transcripts, prepared for journalistic purposes, not for the purpose of litigation. The 77 contemporaneous transcripts were disclosed and were provided for inspection, subject to redactions, but were in parts so inaccurate as to be unintelligible. As an unfortunate example, Mr Clarke’s first name was often interpreted by the AI which transcribed them as ‘no’. The defendant’s solicitors therefore decided to obtain professional transcripts of the conversations, and suggested to the claimant’s solicitors that they share the cost of doing so; the claimant’s solicitors refused this offer, so the defendant paid for and obtained its own transcripts. Against this background, the claimant applied for disclosure of all of the certified transcripts of all 142 of the conversations.

Steyn J rejected the defendant’s argument that the transcripts were privileged; but accepted the submission that they should not be disclosed because the application amounted to too little, too late. She held (perhaps obviously) that because the transcripts had not existed at the time the defendant made standard disclosure, they had not been disclosable at that time. Nor was there any duty to obtain professional transcripts (cf the comments made in the White Book, para.31.15.7). Once they came into existence, however, the court had jurisdiction and the discretion to order their disclosure pursuant to CPR Part 31.12.1. They were not privileged, notwithstanding that they had been prepared for the purposes of the litigation, because the underlying conversations they recorded were not privileged (cf in this regard the decision in Property Alliance Group Ltd v RBS (No 3) [2015] EWHC 3341 (Ch)).

Nevertheless, the judge refused to order their disclosure. The application had been made very late in the day; ordering disclosure after the commencement of the trial would inevitably have a disruptive effect on its orderly conduct; and the claimant had not adequately explained why he needed them. He already had nearly half of the files in the form of audio recordings, and almost half of these had been transcribed contemporaneously by the dreaded AI. The approach taken by the paper’s journalists to its investigations into him was already amply evidenced, therefore, and there was no reason to believe that the remaining transcripts would show anything different. Furthermore, the claimant’s solicitors had known of the shortcomings in the AI transcriptions for some time prior to making the application, but had not explained why it had only been made at such a late stage so close to trial as to be potentially highly disruptive. This delay in itself suggested that the transcripts were not considered to be, and were not, of crucial importance evidentially. The claimant had not explained the relevance of the documents, let alone why they might be necessary to assist in the fair disposal of the claim. As the judge noted (at [30] and [31]):

“the Claimant is seeking a mass of material. The audio recordings in respect of which inspection was given amount to about 27 hours of recordings, and that is less than half the number of such recordings. Transcriptions of 142 audio files is therefore likely to be a large number of pages of documents. I accept Ms. Fuhrmann’s evidence that the certified transcripts are not in final form. They would have to be redacted and that work has not been done. An order requiring the Defendant to disclose all 142 certified transcripts would impose an onerous task on the Defendant at a time when it is heavily engaged in the work required for the trial which has begun.

The parties have prepared for the liability trial on the basis of the material that has been disclosed and is in the trial bundles. Requiring such a large amount of material to be disclosed now, when the court is imminently going to hear opening submissions and evidence, would be disruptive.”

In conclusion, at [36]:

“If a narrower more focused application had been made, backed up by a compelling explanation as to why this material is necessary for the fair disposal of the liability trial, the lateness of the application would not have been decisive. But no such application, even in the alternative, has been made.”

The outcome of the claimant’s application is a further reminder that disclosure applications, like most other applications, follow the Shakespearian rule: if it were done when tis done, then twere well it were done quickly. Or, in other words, it’s better to get it over with sooner rather than later, and (as Shakespeare unaccountably didn’t go on to say) you’d better have a darn good reason for it.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, and Tom Yarrow, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.