In an earlier blog I surveyed some recent developments in orders for defendant disclosure in group claims. Here I address the Courts’ recent approach to claimant disclosure and particularisation in such claims.
How particular?
The question of claimant disclosure often starts with the question of claimant particularisation. The nature of most group claims is that a large number of claimants are complaining about the same or broadly the same wrongdoing of a defendant, and that the efficiency of the group litigation rests on having common allegations set out in a group particulars of claim. This can take place within a GLO, or outside a GLO. The typical approach is for the individual claimants’ particulars to be set out at a high level in the group register, with particular facts often set out in a schedule of claimant information (or ‘SOCIs’/’SOIs’) produced in response to a court approved questionnaire. (See Practice Direction 19B paras 6.1 and 14.)
Where there are large numbers of claimants, each successive contact between the claimant lawyers with each claimant can be very expensive, often disproportionately so in consumer claims that are individually small in size. Nevertheless, there remains the need for some particularisation. As O’Farrell J noted in Alame & Others v Royal Dutch Shell Plc [2022] EWHC 989 (TCC):
“Group litigation cases may differ from other Part 7 or Part 8 claims in that the claim form and the group statement of case on common issues may plead the claim in short or general terms. However, that does not exempt each claimant from the requirement to set out in a schedule to the group statement of case, or in a questionnaire or other pleading in the group register, the facts necessary for the purpose of formulating a complete cause of action.”
Hence Senior Master Fontaine gave the following guidance in the Mercedes Diesel GLO [2023] EWHC 512 (QB) at paras 43-4:
“I agree with the approach of the Defendants that, on the whole, it is more efficient and cost effective for all information to be provided on a single occasion and in one document, rather than to have to revisit the exercise. This would no doubt also be more convenient to individual Claimants.
I recognise that is necessary to strike a proportionate balance between:
i. including what is strictly necessary in terms of specifying a complete cause of action, assisting the parties and/or the Managing Judge to identify potential lead cases, and providing the Defendants with sufficient information to obtain a reasonably informed view about the likely quantum of claims; and
ii. keeping the exercise as straightforward as possible, so that excessive and costly queries are kept to a minimum, and where possible more detailed information be provided at a later stage in proceedings, possibly by a more limited group of Claimants, when identifying an appropriate pool of Claimants from which to identify potential lead claimants.”
In that judgment the Senior Master then went on to determine which questions, in what form, should be included in the schedules of information. Similarly, more recently, in the UCL Covid-19 claim [2024] EWHC 1744 (KB) para 61, claimants were ordered to include certain information (including their country of residence) in the schedules of information, despite the cost, given the importance of the information.
In the other Diesel claims, some manufacturers agreed to defer the date for Schedules of Information given the huge cost they entail and that it may be better to do such Schedules at a later date when some issues have been resolved, or indeed never if the case can be settled without. This led to disputes as to how much the claimants should provide in the Group Register itself, in advance of the Schedules. A balance has to be reached (e.g. Issues 1, 4(1), 11(2) and 18 in the judgment).
Further detail and disclosure by claimants
The question then arises as to the degree to which claimants should otherwise progress their claims. This has reached a relatively settled position in the securities claims. The split in such claims will typically be between a first trial on defendant-sided issues (misstatements/omissions/dishonest knowledge) with claimant-sided issues (reliance, causation, quantum, limitation) put off to trial 2. See further the 3VB blog on this.
But, as noted in that blog, Falk J in G4S [2022] EWHC 1742 (Ch) required the claimants to nevertheless progress disclosure and witness statements on reliance issues from at least sample claimants, in order to strike a fair balance. This is in the context of a broadly claimant-friendly trial split, where defendants understandably feel that all the focus is on the weak points of their case and that they need to scrutinise some of the weak points of the claimants’ case if there is to be a settlement. Falk J was mindful of the need for a fair balance. Other factors relied on by Falk J included that memories will fade if witness evidence is not taken until after trial 1. That blog also recites further developments in the Standard Chartered [2024] EWHC 1108 (Ch) and (as regards the May 2024 CMC) Glencore claims.
Since then, in rejecting the representative action for a securities claim (a topic for another blog) the Court of Appeal in Wirral Council v Indivior plc [2025] EWCA Civ 40 noted (at paras 127-132) as advantages of ordinary group proceedings the importance of progressing claimant-side issues if appropriate, and in particular enabling scrutiny of particular points on which the claims may ultimately fail and so have no claim, so as to facilitate settlement.
At the November 2024 CMC in Glencore certain issues arose on particularisation by the QE (Quinn Emanuel) Claimant, which was the only claimant pursuing a s90A claim under paragraph 3 of Schedule 10A, i.e. a claim under s90A in relation to misstatements or omissions which, unlike the s90 claim or the s90A dishonest delay claim, therefore required claimants to establish reliance. Picken J ordered the QE Claimant to provide further detail of its case on reliance, including which individuals relied on each published statement. This followed a trend in which claimants have been required to provide information in relation to their reliance case. That is partly justified by the need to triage the claims into different legal categories – some claims are based only on “price/market reliance” (see the 3VB blog on Barclays and the dismissal of the price/market reliance cases there, followed by settlement), others on reliance in a more conventional or direct sense.
But, going further, the court also ordered that claimants give disclosure on reliance issues before trial 1 (listed for September 2026), even though trial 1 would not involve consideration of reliance even for test claimants and so factual evidence on reliance would not be weighed for some years. (There are no test claimants at trial 1 in most of these securities claims because there are no claimant-sided issues; Barclays would have been an exception, but settled.) Ordering disclosure is more than a matter of requiring particularisation of the detail of the case being alleged and the legal arguments it raised (to facilitate strike out etc), but the reasons given by the Court to justify it were essentially the same reasons as the further particularisation—such as the fairness of requiring claimants to engage and progress their case.
Standing is another such issue where the need for claimants to progress the issue is hard to dispute. Defendants have made the case that it is not fair or sensible for claims to progress all the way through a first trial without the defendants being able to test the claimants’ case on the question of whether they have the ability to make a claim or not. The split in securities claims typically includes standing within the first trial, and claimants give particulars or evidence on standing early on with the aim of satisfying the defendants so that the issue is agreed.
Conclusion
Ultimately, this will be a matter of case management, as the range of cases here shows. Where there are a small number of large claimants, as in the securities claims, the Courts seem to be landing on a course of requiring some claimant disclosure, although this depends upon the split, how long ago the underlying events were, and the nature of the issues. Conversely, where there are a very large number of small claimants, the economics of the litigation will mean that the Courts typically do not order the claimants to give very much information early, still less disclosure. This probably reflects the Courts’ assessment of the dynamics of likely settlement, i.e. that in volume consumer claims the settlement is likely to take place without detailed examination of the individual claims.
Disclosure: the author acts for the defendant in the UCL Covid-19 dispute and for the claimants in the Glencore and Diesel NOx emissions disputes.