By Application Notice dated 15 February 2023 (the “First Application”) the Claimants apply for permission to amend the Claim Form and Particulars of Claim to amend the names of a number of individual Claimants and, in a number of cases, to substitute new parties for existing Claimants under either CPR Part 17.4 or CPR Part 19.6. By a second Application Notice dated 9 June 2023 (the “Second Application”) the Claimants apply for permission to amend the Claim Form and Particulars of Claim to amend or substitute a number of additional Claimants.

The factual background to the applications can be briefly stated as follows. The Claimants’ case is that they are investors who acquired, continued to hold or disposed of ordinary shares in the Defendant, Barclays Bank plc (the “Bank”), which is listed on the London Stock Exchange. Some of them also claim to have acquired those shares in a rights issue in September 2013 in which the Bank raised approximately £5.8 billion as additional share capital (and they rely on a prospectus issued on 16 September 2013).

On 26 June 2014 the Bank issued an RNS stating that the Attorney General of the State of New York had filed a complaint in the New York State Courts relating to his investigation of “LX Liquidity Cross” which was the Bank’s alternative trading system (the “Complaint”). On 31 January 2016 the Bank and Barclays Capital Inc (“Barclays Capital”), one of its subsidiaries, entered into a settlement agreement with the Attorney General of New York and submitted to an order (the “SEC Order”) made by the Securities and Exchange Commission (the “SEC”).

On 28 May 2020 Financial Recovery Technologies LLC (“FRT”), which described itself as a “Leader in Securities Litigation”, published a circular on its website headed “Case Spotlight: Barclays Plc”. It identified the Bank and stated that it was organising claims relating to “Misleading or untrue statements in published information and violation of disclosure requirements”. It then stated that the limitation period expired on 25 June 2020 and that the deadline for participation in the claims was 1 June 2020 before providing the following background:

Under the heading “Eligibility & Costs” FRT continued that in order to participate in the action, investors had to have held shares at market close on 25 June 2014 or to have purchased them during the September 2013 rights issue and held some of them until 25 June 2014. FRT then set out the terms on which a funder called Woodsford was prepared to fund the litigation and then answered the question “Why is there a tight deadline?” as follows:

Finally, the circular stated that the organisers were preparing a two phase strategy which required investors to provide the following information:

On 6 June 2020 Brown Rudnick LLP (“Brown Rudnick”) served a letter of claim (the “Letter of Claim”) on the Bank addressed to its board of directors and also its Head of Investor Relations. Brown Rudnick stated that they represented the clients set out in Appendix 1 and summarised the nature of the claim as follows:

The Letter of Claim provided detailed particulars of the claims under section 90 and section 90A of FSMA based primarily upon the Complaint, the settlements between the Bank, Barclays Capital, the New York Attorney General and the SEC. In Appendix 1 Brown Rudnick identified 88 potential Claimants for whom they acted and they also invited the Bank to enter into a standstill agreement (and enclosed a draft).

By an agreement dated 25 June 2020 (the “Standstill Agreement”) and made between the parties referred to in the Schedule (who were defined as the “Proposed Claimants”) (1) and the Bank (2) the parties agreed to stop time running for limitation purposes. In clause 2 (which was headed “Agreement to suspend time”) the parties agreed as follows:

The schedule to the Standstill Agreement now identified 122 Proposed Claimants. But in Clause 1.9 the parties also agreed that any party with the right to bring the claims set out in the Letter of Claim for, or on behalf of or in the place of the Proposed Claimants, would be entitled to the benefit of the Standstill Agreement. Mr Nash and Mr Watkins both used the term the “Claimant Universe” to describe all of these potential Claimants and I adopt that term myself. Clause 1.9 provided as follows:

On 30 October 2020 Latham & Watkins served a letter of response on behalf of the Bank (the “Letter of Response”). They stated that the claim was fundamentally flawed and set out their detailed response to the allegations in the Letter of Claim. In section 8 (which was headed “Proof of Title”) they stated as follows:

On 26 November 2020 Brown Rudnick issued the Claim Form and Schedule 1 now identified 310 Claimants. On 25 March 2021 they amended and re-issued it. No amendments had been made to the brief details of the claim set out in the body of the form but a substantial number of amendments had been made to Schedule 1 and, in particular, a large number of Claimants had been deleted. In this judgment I use the term “Claim Form” to refer to the Amended Claim Form dated 25 March 2021 and the term “Claimants” to refer to the remaining Claimants named in Schedule 1 (whether their names are accurately stated or not). I also use it to refer to all of the intended Claimants who were applying to be substituted for existing Claimants named in Schedule 1. Finally, I use the term “Proposed Claimants” to refer to the Claimants identified in the Standstill Agreement (as it is used in the agreement itself).

Where I refer to individual Claimants I do so by using the prefix “C” and the number in Schedule 1 (in its proposed amended form). Thus, C1 refers to Allianz Funds Multi-Strategy Trust. Where necessary, I also refer to the description of the claim given in Schedule 1 or the capacity in which the individual Claimant is stated to have brought the claim. Thus, C1 is described as bringing the claim “on behalf of AllianzGI Best Styles Global Equity Fund” and C58 names CI Investments Inc in its capacity as trustee of a number of different funds (and amendments to three of those funds are among the first amendments which the Court has been asked to consider).

The Claimants were all represented at the hearing of the Applications by Mr Jonathan Nash KC and Mr Alex Barden instructed by Signature Litigation LLP (“Signature”). The First Application was issued by Brown Rudnick but by the time of the Second Application they had withdrawn because of a conflict of interest and had been replaced by Signature, who issued the Second Application. The Bank was represented by Mr Michael Watkins and Mr Tom Foxton instructed by Latham & Watkins. I am grateful to all counsel and their respective teams for their lucid and thoughtful submissions and the quality of the argument which was presented before me.

Before I move on to the procedural history of the action, I should deal with the numbers upon which both sides relied. It will be apparent from the detailed amendments which I summarise in Section IV (below) that it is possible to calculate the number of Claimants in different ways. In opening the Applications Mr Nash told me that there are 120 claims remaining after the amendment to the Claim Form and that their value is £225 million. He also told me that 59 were the subject matter of the Applications and that their value is £99 million. Finally, he told me that 44 claims were contested and that their value was £70 million. Mr Watkins told me that the names of 189 Claimants had been deleted from the Claim Form, 123 claims remained and that 57 were the subject matter of the Applications (of which 43 were in dispute). There were, therefore, minor differences between the parties but they were not material.

By the end of the hearing it was common ground that 40 claims were in dispute. Shortly after the hearing Mr Barden submitted an agreed table which set out the remaining amendments in dispute and I have identified the various categories and taken examples of each one from that table in Section IV (below). In his covering email Mr Barden stated that the 40 amendments included a handful of entries where two Claimants were treated together or a single Claimant divided in two. It also included two entries for C58 (above) because it fell into two different categories. He also pointed out that Mr Watkins accepted that the Claimants’ table was a correct summary of the disputed amendments but that their characterisation was not agreed in all cases and that Mr Watkins had asked me to review the specific amendments by reference to the witness statements (as I have done).

On 10 March 2021 Mann J handed down judgment in Various Claimants v G4S plc [2021] EWHC 524 (Ch) (later reported at [2021] 4 WLR 46) (“G4S”). I consider the decision in greater detail (below) but because the parties referred to the decision in correspondence and it framed their approach in correspondence to the issues which I must now decide I mention it here in the context of the procedural history.

By letter dated 30 April 2021 Latham & Watkins wrote to Brown Rudnick responding to the re-issue and service of the Claim Form. They stated that there appeared to be material differences between the Claimants identified in Schedule 1 (as amended) and the Proposed Claimants identified in the schedule to the Standstill Agreement. In schedule 1 to their own letter Latham & Watkins listed those Claimants who had not been identified in the schedule to the Standstill Agreement. Under the heading “Unidentified Claimants” they stated as follows:

On 5 May 2021 Brown Rudnick served the Particulars of Claim. Appendix A contained details of the Claimants. By letter dated 14 June 2021 Brown Rudnick replied to Latham & Watkins letter dated 30 April 2021 dealing with the Claimants in their first schedule. By letter dated 12 July 2021 they sent a further letter addressing the Claimants in their second schedule. They sent two of their own schedules the first of which was intended to capture “those alternative formulations of certain claimant names which at the outset were included out of an abundance of caution but that we now believe can be removed from the relevant schedules of claimants”. They also included some Claimants for whom further investigation was required. The second schedule was intended to provide particulars of “the nature of the relevant legal personality, and the relevant place of incorporation”. In the final paragraph Brown Rudnick stated:

By letter dated 20 July 2021 Latham & Watkins replied. They summarised the correspondence to date, set out their preliminary analysis of the extent to which the Claimants so far identified held shares in the Bank and complained about the number of duplicate Claimants. They then continued:

On 28 July 2021 the Bank served its Defence. By letter dated 12 August 2021 Brown Rudnick replied. In the first paragraph they stated that they were not addressing “your now somewhat laboured efforts at criticism” and complained that Latham & Watkins’ approach was “unhelpful” and their narrative self-serving and inaccurate. In the second and third paragraphs they continued as follows:

By letter dated 16 September 2021 Latham & Watkins wrote back setting out their substantive objections to the identification of the Claimants by Brown Rudnick. Their first objection was that most of the Claimants did not have an interest in the Bank’s shares during the Relevant Period. They stated that they had established that only two Claimants had been registered as shareholders and that only 27 of the remaining Claimants were beneficial owners. They asked Brown Rudnick to identify those Claimants who had an interest in the Bank’s shares in the Relevant Period and to provide full details. Their second objection was that many of the Claimants lacked legal personality or capacity. In particular, they stated as follows:

Latham & Watkins gave an example and requested Brown Rudnick to confirm the precise basis on which each of the Claimants had legal personality and was entitled to pursue a claim in their own name (and to provide details). Latham & Watkins’ third objection in paragraph 26 of their letter was that a number of Claimants had been improperly identified and they asked for confirmation that the Claimants in Schedule 3 existed and, if so, for full details. (They also took a number of other objections which are not directly relevant to these Applications.)

By letter dated 11 October 2021 Brown Rudnick sent a detailed letter in which they attempted to address Latham & Watkins’ objections and requests. In this letter they suggested that they intended to amend the names of certain Claimants. Under the heading “Claimant naming conventions” they dealt with the second and third objections (above) as follows:

On 29 October 2021 Brown Rudnick served the Claimants’ Reply. By letter dated 12 November 2021 Latham & Watkins wrote to them identifying a number of concerns about the amendments to the proposed list of Claimants including the failure to delete duplicate Claimants, the failure to name individual trustees and the failure to formulate the legal personality of retirement systems and funds correctly. By letter dated 19 November 2021 Brown Rudnick replied stating that if the parties could not reach agreement, it would be necessary for the Claimants to make an application to Court. In the final paragraph of that letter they stated as follows:

By letter dated 30 November 2021 Latham & Watkins noted what Brown Rudnick had stated about withdrawals, amendments and substitutions (above). They also pointed out that the Claimants were required by paragraph D3.2(a) of the Admiralty and Commercial Court Guide to take steps to fix a date for the first CMC by 11 August 2021 but had failed to do so. By letter dated 1 December 2021 Brown Rudnick wrote back accepting that it was “highly desirable” to fix a CMC. By letter dated 16 December 2021 Latham & Watkins chased for the amendments and by email dated 23 December 2021 Brown Rudnick stated that they proposed to address them in correspondence by 14 January 2022.

In the event Brown Rudnick did not comply with this deadline. However, under cover of a letter dated 11 February 2022 they sent Latham & Watkins a series of schedules. They stated that the purpose of the letter was as follows:

Brown Rudnick identified two categories of Claimant. The first category consisted of proposed withdrawals and deletions which were the subject matter of the first four schedules (including alternative formulations of the same claimant). The second category consisted of proposed amendments to the remaining Claimants in Schedule 1:

Schedule 5 to this letter contained a series of very detailed amendments. The example to which I was taken was C5. In column 1 the Claimant was identified as “Allianz Global Investors GmbH”. Column 2 contained a description of the claim: “German Limited Liability Company acting in the capacity as management company.” The third column then set out a detailed explanation for the amendment:

The final column then set out the proposed amendment. It took some time for Latham & Watkins to consider all of the proposed amendments and the individual rationale for each one. On 22 March 2022 Brown Rudnick also served the Claimants’ Amended Reply and on 11 April 2022 they wrote to Latham & Watkins again about fixing a CMC. They enclosed a draft list of issues and proposed a number of directions (including a direction for a split trial). By letter dated 22 April 2022 Latham & Watkins responded to these letters stating that the Bank was prepared to consent to some individual amendments but not to the balance of them. They explained the reasons for this position as follows:

Latham & Watkins gave as a particular example C13 which I consider in more detail below. But their criticism of the proposed amendment was that it was unclear what fund had been originally intended and what the correct name of the fund was or should be. They pointed to a number of name changes and the different approach which Brown Rudnick had taken in their letter dated 29 October 2021. In relation to the CMC they adopted the following position:

In the meantime, on 28 January 2022 Brown Rudnick had issued a second Claim Form annexing a schedule of 65 Claimants. By letter dated 4 February 2022 Latham & Watkins wrote to them asking whether there was any link between the two sets of proceedings and on 24 February 2022 they chased for a response. Under cover of a letter dated 4 March 2022 Brown Rudnick sent a copy of the second Claim Form (as amended) (the “Second Claim Form”) and in the covering letter they stated that it did not relate to any separate or standalone claim but that its subject matter was the same as the subject matter of the present proceedings. By letter dated 27 June 2022 Brown Rudnick wrote to Latham & Watkins as follows:

By October 2022 Brown Rudnick had not issued the application referred to in this letter and on 14 October 2022 Latham & Watkins served an Application Notice on Brown Rudnick in which they sought an order under CPR Part 3.1 and CPR Part 18 requiring Brown Rudnick to serve the application within two weeks of the date of the order, to answer a Request for Further Information and to provide trade data and custody statements or letters which they had promised in correspondence. By letter dated 31 October 2022 Brown Rudnick objected that this was unnecessary and proposed that the Claimants should issue the application to amend by 16 December 2022. Latham & Watkins invited them to enter into a consent order but by letter dated 9 November 2022 Brown Rudnick declined to do so on the following basis:

Brown Rudnick did not issue the First Application by 16 December 2022. However, on that date they wrote to Latham & Watkins enclosing a link to letters from custodians and intermediaries for 77 Claimants verifying the accounts in which they held the Bank’s shares. They stated that they were planning to provide the reply to the Request for Further Information and trading data by 20 December 2022 and to issue the amendment application in early January 2023. They also attached a Schedule setting out custodian statements designed to demonstrate the chain of custody of the Bank’s shares. The schedule also contained further detailed amendments, some of which were ultimately reflected in the First Application and a further commentary on the position of each Claimant.

On 21 December 2022 Brown Rudnick served their response to the Request for Further Information and on the same day they provided comprehensive trading data records for all but two of the Claimants. One of those two Claimants was C13 which was the subject matter of one of the two contested applications in relation to the jurisdiction to grant permission.

The Bank’s application for directions was listed for hearing between 7 and 9 February 2023 and on 30 January 2023 Brown Rudnick wrote to Latham & Watkins providing a draft witness statement. In the covering letter they stated as follows:

Latham & Watkins insisted again that the Claimants submit to a consent order and this time Brown Rudnick agreed. By Order dated 6 February 2023 Miles J ordered the Claimants to issue and serve their amendment application by 4 pm on 15 February 2023 and to provide “Further Particulars of Standing” by 28 April 2023. By Order dated 3 March 2023 Trower J gave directions for the service of evidence and for the First Application to be listed for hearing.

On 15 February 2023 Brown Rudnick issued the First Application. The First Application was supported by a witness statement dated 15 February 2023 (“Shrimpton 1”) and made by Mr Neill Shrimpton, a partner in Brown Rudnick. He explained the background to the changes between the Claim Form and the Particulars of Claim in the following terms:

He also explained that from April 2020 onwards Brown Rudnick began to receive instructions from the Claimants. He described this as the “Registration Phase” and he explained that between July 2020 and March 2021 his team continued to contact a number of the Claimants asking them to provide information and documents to verify their name and ownership of the Bank’s shares. He also explained that throughout the remainder of 2021 Brown Rudnick undertook a checking exercise (which he called the “Constitutional Document Review”) and that following that review they asked further questions and obtained letters from custodians confirming that individual Claimants were the beneficial owners of the relevant shares. He described this as the “Full Verification Exercise”.

By letter dated 20 February 2023 Latham & Watkins wrote to Brown Rudnick enclosing another schedule of Claimants and this time stating as follows:

By letter dated 31 March 2023 Latham & Watkins wrote to Brown Rudnick again drawing their attention to CPR Part 19.4(4) (which provides that nobody may be added or substituted as a Claimant unless they have given their consent in writing and the consent has been filed with the Court) and asking for copies of the relevant consents. By letter dated 6 April 2023 Brown Rudnick replied stating that there was no requirement that the consents be filed before any order was made adding or substituting individual Claimants and that the consents would be filed at the appropriate time. Latham & Watkins accepted that position and it was common ground before me that if I granted permission to amend, then the Claimants would file the relevant consents under CPR Part 19.4(4) when the order was made. I do not, therefore, consider compliance with this provision any further.

In a witness statement dated 17 April 2023 (“Middleton 2”) Mr Oliver Middleton, a partner in Latham & Watkins, answered Shrimpton 1. Under cover of a letter dated 26 May 2023 Signature served notice of change on Latham & Watkins and the Further Particulars of Standing. During the course of the hearing I asked for a copy of the Further Particulars of Standing and I was provided with a copy. It consists of a spreadsheet containing a significant amount of information.

In the covering letter Signature stated that they had now been instructed by the Claimants. They also stated that further amendments had been made in respect of C63, C79 and C80. By a witness statement dated 2 June 2023 (“Hogan 1”) Ms Rebecca Hogan, a partner in Signature, replied to Middleton 2. On 9 June 2023 Signature issued the Second Application and served it on Latham & Watkins together with the second witness statement of Ms Hogan (“Hogan 2”) in support of the application. In paragraph 6 she stated as follows:

By a witness statement dated 28 June 2023 Mr Middleton (“Middleton 3”) answered Hogan 2 and by a witness statement dated 4 July 2023 (“Hogan 3”) Ms Hogan replied to his evidence. Ms Hogan gave the following additional evidence about Brown Rudnick’s conflict of interest in paragraph 21:

Section 35

Section 35 of the Limitation Act 1980 (“Section 35”) is headed “New claims in pending actions: rules of court”. Section 35(1)(b) provides that a new claim made in the course of any action other than third party proceedings shall be deemed to be a separate action and to have been commenced on the same date as the original action. This is the statutory basis for the principle of “relation back” and the effect of the section is to deprive a defendant of a limitation defence if a claimant is permitted to amend to bring a new claim after the expiry of the limitation period. Section 35(3) to section 35(7) regulate the circumstances in which such an amendment may be permitted:

CPR Part 17.4

CPR Part 17.1 provides that a party may amend their statement of case (including by removing, adding or substituting a party) at any time before it is served on any other party. There is no dispute that the original amendments made by Brown Rudnick to the Claim Form before it was amended and served on 25 March 2023 were validly made under this provision. CPR Part 17.3(1) provides that the Court may give permission to a party to amend their statement of case. But CPR Part 17.2 provides that this power is subject to the special provisions of CPR Part 19.6 and CPR Part 17.4 which provides as follows:

CPR Part 19.6

CPR Part 19 was amended by the Civil Procedure (Amendment) Rules 2023 (SI 2023/105) to insert a new CPR Part 19.5 dealing with Human Rights and the existing CPR Part 19.5 was renumbered as CPR Part 19.6. Minor amendments were also made to the text of the rule. CPR Part 19.6 now contains the special provisions which were formerly in CPR Part 19.5 about adding or substituting parties after the end of a relevant limitation period (as CPR Part 17.4(4) records above). The text of the rule is now as follows:

The Sardinia Sulcis Test

In The Sardinia Sulcis [1991] 1 Lloyd’s Rep 201, proceedings were brought in the name of the Italian owners of the Sardinia Sulcis who had ceased to exist as a result of a merger with another Italian company. They applied to amend under RSC Order 20 Rule 5(3) which provided as follows:

The Court of Appeal upheld the decision of Sheen J to give leave to amend. The test which they applied was whether it was possible to identify the claimant by reference to a description which was specific to the facts of the relevant case. Lloyd LJ (with whom Stocker LJ and Sir George Waller agreed) set out this test at 207:

Stocker LJ gave a concurring judgment in which he stated that he could not improve on this test. He also provided the following commentary at 209 col 1:

RSC Order 20 Rule 5 did the work of both CPR Part 17.4 and CPR 19.6 before the introduction of the Civil Procedure Rules. But the Sardinia Sulcis test continued to be applied despite the change from one to two rules and the different language employed. In Horne-Roberts v SmithKline Beecham plc [2002] 1 WLR 1662 the claimant applied for permission to substitute one pharmaceutical company for another as the defendant in a claim for damages for personal injury after the limitation period had expired. The claimant’s advisers had identified the right batch of the rubella and measles vaccine but not the correct manufacturer. Bell J granted permission to amend at first instance: see [2002] PIQR P3. He identified the most cogent factor in his decision at [39] and [40]:

The Court of Appeal followed the Sardinia Sulcis and upheld the decision: see [2002] 1 WLR 1662 at [39] to [43]. There was no appeal against the judge’s exercise of the discretion but Keene LJ (with whom Hale LJ and Dame Elizabeth Butler-Sloss P agreed) briefly considered the exercise of discretion at [44] and [45]:

In Adelson v Associated Newspapers Ltd [2008] 1 WLR 585 an individual and the company of which he was chairman brought libel proceedings against a newspaper. They applied to amend to add third and fourth claimants which were alleged to be the company’s operating subsidiaries. Lord Phillips CJ reviewed all of the authorities under RSC Order 20 Rule 5 including the Sardinia Sulcis and summarised the test at [43]:

Lord Phillips then considered the authorities on CPR Part 17.4 and CPR Part 19.5 (as it then was) including the SmithKline case (above) before setting out his conclusions at [55] to [57]:

The application failed because the claimants failed to prove how the mistake had come to be made. Lord Phillips recorded that counsel had conceded that it was not thought to be a useful use of costs or proportionate to obtain an explanation from the claimants’ former solicitors: see [71]. He continued at [72] and [73] (in a passage upon which Mr Watkins relied):

Insight

Mr Nash placed particular reliance upon the decision of Leggatt J (as he then was) in Insight Group Ltd v Kingston Smith [2014] 1 WLR 1448 (“Insight”). In that case the claimant brought a claim for professional negligence against a limited liability partnership of accountants. Most of the relevant acts or omissions upon which it relied had been committed before the partnership had become an LLP and it applied for permission to amend to substitute the partnership as the defendant. The Master dismissed the application but Leggatt J allowed the appeal. He confirmed that it was not an element of the test that the mistake was not misleading or caused no doubt. He stated this at [37]:

Leggatt J then went on to consider the limits of the Sardinia Sulcis test. He expressed the view that it was not an easy test to apply and gave as an example the range of possible descriptions which might have been applied in the SmithKline case: see [43]. He also considered cases which fell the wrong side of the line: see [45] to [49]. He then gave the following guidance about the relevant description at [47] (upon which Mr Nash relied by analogy) at [52] and [58]:

The judge reviewed the Master’s exercise of discretion at [104] to [111] and considered that none of the factors which she had identified justified the Court’s refusal to permit substitution of the firm for the LLP. Four of those factors are directly relevant to both Applications before me. Those factors and the judge’s conclusions were as follows:

Her Honour Judge Walden-Smith (sitting as a judge of the High Court) applied Insight in American Leisure Group Ltd v Olswang LLP [2015] PNLR 456. In that case Master Bragge had also refused to permit the substitution of the claimant after the expiry of the limitation period in the exercise of his discretion. Although the judge agreed with Leggatt J in Insight that it was not for the Court to punish a party for the harmless error of its legal representatives, she declined to interfere with the exercise of discretion. However, she also distinguished Insight on the following basis at [64]:

In both American Leisure (above) and Rosgosstrakh Ltd v Yapi Kredi Finansal Kiralama AO [2017] EWHC 3377 (Comm) the Court adopted the same evidential approach as Leggatt J had done in Insight in determining the appropriate description of the claimant. In Rosgosstrakh Mr Andrew Henshaw QC (as he then was) granted permission to substitute Rosgosstrakh Insurance Company PJSC as the claimant for Rosgosstrakh Ltd on the basis that the Sardinia Sulcis test was satisfied and that the intended claimant was (or included) the current insurer under a P&I policy at the time of issue: see [75] and [76]. He exercised his discretion to permit the amendment for a number of reasons. For present purposes, it is enough to note that he rejected the contention that there was no attempt by the claimant to engage in pre-action correspondence: see [87](i). He also attached little or no weight to the fact that substitution would deprive the defendant of a limitation defence. He stated this at [87](v):

In Best Friends Group v Barclays Bank PLC [2018] EWCA Civ the Court of Appeal agreed with Leggatt J in Insight that it is not for the Court to exercise its discretion to punish a party. In that case, the application to amend was only made under CPR Part 17.4(3) and not under CPR Part 19.5. Phillips J dismissed the application because he was not satisfied that there was a genuine mistake and that, even if there was, it caused reasonable doubt as to the identity of the party in question. The Court of Appeal dismissed the appeal but also commented briefly on the judge’s exercise of discretion. Simon LJ stated this at [42]:

It is clear from the report that the conduct of the claimants (and their legal advisers) in that case was fairly extreme. Stuart-Smith J (as he then was) was equally critical of the claimants in Jalla v Royal Dutch Shell [2020] EWHC 459 (TCC). In that case the Claimants had amended the Claim Form without permission to change the name of one of the Defendants: see [5]. The Claimants subsequently applied to amend under both CPR Part 17.4 and CPR Part 19.5 and the judge commented on the peculiarity of this application at [11] to [19]. In the event he rejected the evidence of the Claimants’ solicitor that a mistake had been made and dismissed the application: see [141] to [149]. However, he also dealt with the exercise of discretion at [151]:

The final decision which I must consider before I turn to G4S is TRW Pensions Trust Ltd v Indesit Company Polska Sp Z.o.o. [2020] EWHC 1414 (TCC) in which Fraser J gave permission to one of the claimants to amend its name from “TP ICAP plc” to “TP ICAP Group Services Ltd” or to substitute the one company for the other. The claim related to a fire at business premises in Kent and the judge found that the second claimant was always intended to be the lessee of those premises. He applied Insight in deciding whether the Sardinia Sulcis test was satisfied: see [43]; he did not consider a delay of weeks to be fatal to the exercise of discretion: see [61]; and he held that there was no prejudice in being deprived of a limitation defence (relying again on Insight). He stated as follows at [64]:

Fraser J also held that the prejudice to the defendants in relation to the conduct of the trial was not a determinative factor either because they would face the same case on liability whether the application for substitution succeeded or not. Mr Nash placed strong reliance on the following passage at [66]:

G4S

The facts of G4S bear a strong resemblance to the facts of the present case. It was also a group action under section 90A of FSMA although not the subject of a GLO. On 10 July 2019 a Claim Form was issued against G4S plc claiming that investors had bought and held shares in the company which had lost value as a result of a public announcement that the company had been the subject matter of a fraud. Mann J recorded that the original number of claimants was 43 but rose to 182 before reducing to 93. He also recorded that the limitation period ran (or arguably ran) from the date of an announcement on 11 July 2013 and that the claim was not preceded by any Letter of Claim or any pre-action correspondence. Finally, he recorded that if the claimants who had joined the group after 11 July 2019 (i.e. after the limitation period had arguably expired) could not be added or substituted, the value of the claim would be reduced from £102 million by £92 million to £10 million: see [3] to [6]. Those claimants numbered 52: see [14].

G4S differs from the present case, however, because in many cases the defendant disputed the claimants’ entitlement to rely on either CPR Part 17.4 or CPR Part 19.6. In particular, it disputed whether the threshold gateways (as I will refer to them) in CPR Part 17.4(3) and CPR Part 19.6(3)(a) or (b) were satisfied. Mann J analysed the authorities in detail (as I have attempted to do) before summarising the law at [140] and considering the kind of mistake which would satisfy the Sardinia Sulcis test at [141] to [144]:

Mann J noted that it was a requirement of CPR Part 17.4 that there should be no reasonable doubt as to the identity of the party but not of CPR Part 19.6 and held that this issue falls to be determined at the date of the mistake (which will usually be the date of the Claim Form or the application to amend): see [153] to [159]. More generally, he expressed the view that the question whether there was an operative mistake which fell within either CPR Part 17.4 or CPR Part 19.6 should be tested at the same time. He stated this at [158]:

Mann J then addressed a number of sample amendments which (like this case) could be grouped into a number of different categories. The sample case in Category 2 involved an amendment to add the words “Invesco Fixed Interest Investment Series for and on behalf of” a number of OEICs. As the judge explained, these are FCA authorised collective investment schemes called “Open Ended Investment Companies” and have no capacity to sue in their own names but must sue in the name of an umbrella company. The judge described the mistake at [197] and [198]:

The judge held that the mistake made did not satisfy the threshold gateway in CPR Part 17.4(3) because the case before him was not a case where the correct entity was identified but the wrong name applied, but a case where the correct entity was not identified at all. He also held that if this was incorrect then the application fell at the hurdle of reasonable doubt. I set out part of his reasoning from [200] and [202]:

Mann J then went on to consider whether in the alternative the threshold gateway in CPR Part 19.6 was satisfied. He pointed out that the substitution of a claimant may be made under the rule even if the existing claimant does not exist (citing Rosgosstrakh (above)). He cited both The Sardinia Sulcis and Insight and directed himself that it was necessary to identify the essential description of the intended claimant before reaching the following conclusions at [205] to [208]:

Because of this finding it was unnecessary for Mann J to go on and consider the alternative threshold gateway in CPR Part 19.6(3)(b). However, he did make one particular observation about the amendments at [210] which was relevant to the amendments in the present case:

Mann J dealt with name changes at [245] to [257] which he grouped together as Category 6. One sample proposed amendment involved changes to both the name of the claimant and the fund on whose behalf the claim was made. The judge considered the evidence and concluded that a “triple mistake” had been made. He also refused permission to amend for the following reasons:

Finally, Mann J dealt with discretion. He briefly summarised the submissions of parties: the claimants relied on the prejudice of losing the ability to bring claims valued at £90 million in time. The defendants relied on a number of aspects of the claimants’ conduct (and their solicitors): see [272] to [274]. The judge cited Stuart-Smith J’s judgment in Jalla, Adelson and Best Friends Group before summarising the effect of the authorities at [281]:

The judge then stated that applying those factors and the other factors arising out of the facts of this case, he would exercise his discretion against the claimants to refuse permission to amend. He set out his reasons in detail and because they are all relevant in the present case, I must set out the relevant passage at [283] to [292] in full:

The Divisional Court (Dingemans LJ and Picken LJ) disagreed with Mann J’s construction of CPR Part 19.4(4) in Rawet v Daimler AG [2022] 1 WLR 5105. However, this point has no bearing upon the issues which I have to decide and the Court did not suggest that Mann J’s decision was wrong in any other way. As I will explain when I deal with discretion, Mr Nash invited me not to follow G4S and, if necessary, submitted that it was wrong. But he did not place significant weight on Rawet v Daimler AG (and neither do I).

Category A: Name Changes

C58: The Claimant is named as “CI Investments Inc” in the Claim Form and in the capacity as the trustee of various investment funds. The Claimants apply to amend Schedule 1 to change the names of two funds from “CI International Fund” to “CI International Value Fund” and from “Skylon Growth & Income Trust” to “CI Global Asset Allocation Private Pool”. Mr Shrimpton’s evidence is that these changes were necessary because the two funds had changed their names as a result of mergers with other funds although the mergers took place in 2017 and 2019 respectively. Nevertheless, the Claimant with capacity to sue remains CI Investments Inc. Mr Middleton accepts that the threshold gateway in CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £60,000.

C194: The Claimant was named as “OFI Asset Management SA” in the Claim Form and it brought the claims “in respect of” certain French investment funds each of which is a French “fond commun de placement” (“FCP”). The Claimants apply to amend Schedule 1 to change the name of one fund from “OFI Actions Monde” to “OFI RS ACT4 GREEN FUTURE”. Mr Shrimpton’s evidence is that this involved a change of name of the relevant FCP and not a change of legal personality and that it took effect on 8 July 2022. Again, the Claimant with the capacity to sue remains OFI Asset Management SA. Mr Middleton also accepts that the threshold gateway in CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £10,000.

Category B: Typographical or Clerical Mistakes

C58: The Claimants also apply for permission to amend Schedule 1 to change the name of a third fund listed under C58 from “CI Signature Canadian Balanced Fund” to “CI Canadian Balanced Fund”. Mr Shrimpton’s evidence is that the original name involved a typographical error which was not picked up (the inclusion of “CI” in the name) but that on 29 July 2021 the fund also changed its name (to remove the word “Signature”). Again, the Claimant remains CI Investments Inc. Mr Middleton accepts that the threshold gateway in CPR Part 17.4(2) has been met in this case. (Footnote: ¹) The value of the claim is stated to be £520,000.

C82: The Claimant is named as “Equity Trustees Limited” in the Claim Form and in the capacity as the trustee of an investment fund. The Claimants apply to amend Schedule 1 to change the name of the fund from “CMLA Indexed Global Share Fund” to “CMLA International Share Fund”. Mr Shrimpton’s evidence is that the fund was wrongly named in the Claim Form and Mr Middleton accepts that the threshold gateway in CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £90,000.

C213: The Claimant is named in the Claim Form as “Partners Healthcare Pooled Investment Accounts, LLC” and the Claimants apply for permission to amend Schedule 1 to change its name to “MGB Pooled Investments, LLC”. Mr Shrimpton’s evidence is that the Claimant was incorrectly named in the Claim Form (because the word “System” was accidentally omitted) but that in any event it changed its name with effect from 1 April 2022. Mr Middleton also accepts that the threshold gateway in CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £230,000.

C220: The Claimant is named in the Claim Form as “QIC Limited” as trustee of two funds “QIC Queensland Investment Trust No. 2” and “QIC International Equities Fund”. The Claimant applies to change the name of the first fund to “Queensland Investment Trust No. 2”. Mr Shrimpton’s evidence is that the Claimant was incorrectly named in the Claim Form (because the letters “QIC” were accidentally included in its name). Mr Middleton also accepts that the threshold under CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £1,410,000.

C294: The Claimant is named in the Claim Form as “Victorian Funds Management Corporation” and the claim is stated to be made “on behalf of VICTORIAN FUNDS MANAGEMENT CORPORATION ATF VFMC INTERNATIONAL EQUITY TRUST 1”. The Claimant applies to amend Schedule 1 by deleting the words “VICTORIAN FUNDS MANAGEMENT CORPORATION ATF”. Mr Shrimpton’s evidence is that the letters “ATF” stand for “as trustee for” and that by mistake the name of the corporate entity in whose name the claim is brought was duplicated. Mr Middleton also accepts that the threshold gateway in CPR Part 17.4(3) has been met in this case. The value of the claim is stated to be £1,220,000.

Category C: Massachusetts Business Trusts

C2: The Claimant named in the Claim Form is “Allianz Funds Multi-Strategy Trust”. The Claimants apply to amend Schedule 1 to change the name of the trust to “Virtus Strategy Trust” and to add the names of the individual trustees in their capacity as trustees of the Virtus Business Trust. It is Mr Shrimpton’s evidence that the relevant trust is a Massachusetts Business Trust (“MBT”), that during the Registration Phase the client confirmed that it had separate legal personality and was able to sue in its own name but that during the Full Verification Exercise, Brown Rudnick became aware that the title to the assets vests in the trustees themselves and that the trust had changed its name with effect from 1 February 2021 as a result of a change in management. Mr Middleton confirms that the threshold in CPR Part 19.6(3)(a) has been met in this case. The value of the claim is stated to be £20,000.

C4: The Claimant is named in the Claim Form as “Allianz Funds” and the Claimants apply to amend Schedule 1 to change its name to “Virtus Investment Trust” and to add the names of the individual trustees. Mr Shrimpton’s evidence for C4 is very similar to his evidence for C2. He states that the relevant fund is also an MBT, that during the Registration Phase the client confirmed that it had separate legal personality, that during the Full Verification Exercise Brown Rudnick became aware that the title to the assets vested in the trustees themselves and that the trust had changed its name with effect from 1 February 2021 as a result of a change in management. Mr Middleton confirms that the threshold gateway in CPR Part 19.6(3)(a) has been met in this case. The value of the claim is stated to be £10,000.

C72 C120 C149 C234: In each of these cases the Claimants apply to amend Schedule 1 to add the names of the trustees to the name of the fund on the basis that each fund is an MBT (and in the case of C234 to correct a small typo from “Fund” to “Funds” in the name of the trust). Mr Middleton confirms that the threshold in CPR Part 19.6(3)(a) has been met in each of these cases. The value of the claims are stated to be £110,000, £6,430,000, £540,000 and £840,000 respectively. The amendment in relation to C72 was first put forward in the Second Application.

Category D: Delaware Statutory Trusts

C170: The Claimant named in the Claim Form is “New York Life Investment Management LLC” and is stated to be bringing the claim “on behalf of MAINSTAY MARKETFIELD FUND and MS VP MARKETFIELD PORTFOLIO”. The Claimants now apply to amend Schedule 1 to bring two separate claims. The first application is to amend the name of C170 so that the Claimant is identified as “Total Fund Solution” and the nature of the claim is expressed to be “in respect of the Cromwell Marketfield L/S Fund (formerly the MAINSTAY MARKETFIELD FUND)”. This amendment was first put forward in the Second Application and in Hogan 2, Ms Hogan explained the basis of the amendment.

It is Ms Hogan’s evidence that during the Registration Phase New York Life Investment Management LLC (which is currently named as the Claimant) was identified as the owner of the relevant shares when it was in fact the fund manager. In about July 2021, however, Brown Rudnick became aware that the two funds identified in the Claim Form had changed their names and that they were sub-funds of trusts established under the Delaware Statutory Trust Act and I will refer to each one as a Delaware Statutory Trust or “DST”. As Mr Shrimpton explains, the Act expressly provides that a DST is a legal entity and may (but not must) sue or be sued in its own name. In October 2021 Brown Rudnick obtained copies of the trust deed and confirmed that the trust deed of the first fund required the claim to be brought in the name of the trustees. But in November 2022 Brown Rudnick discovered that the sub-fund had been renamed again (this time as the “Cromwell Marketfield L/S Fund”) and organised into a separate DST called “Total Fund Solution”. The Claimants therefore apply to bring the claim in the name of the DST and also to amend the nature of the claim to reflect the re-organisation of the fund. The value of the claim is stated to be £24,000,000.

C170A: The second application is to add a new Claimant “Mainstay VP Funds Trust” and the nature of the claim is expressed to be “in respect of The MainStay VP IQ Hedge Multi-Strategy Portfolio (formerly the MS VP MARKETFIELD PORTFOLIO)”. It is Ms Hogan’s evidence that in July 2021 Brown Rudnick discovered that the Mainstay VP Marketfield Portfolio had changed its name and in October 2021 Brown Rudnick also confirmed that its assets were vested in a DST called “Mainstay VP Funds Trust”. The Claimants therefore apply to bring a separate claim in the name of the DST (which may sue in its own name) and to amend the nature of the claim to reflect the change of name of the sub-fund. In Middleton 3, Mr Middleton accepts that the threshold gateway in CPR Part 19.6(3)(a) is met in relation to both C170 and C170A. The value of the combined claim is stated to be £24,370,000.

C277: The Claimant named in the Claim Form is “TIAA-CREF Funds” and the nature of the claim is stated to be in respect of a number of different funds or sub-funds. The Claimants now apply to amend Schedule 1 to change the name to “TIAA-CREF Life Funds” and to delete the names of the funds or sub-funds. Mr Shrimpton’s evidence is that two alternatives of the claim by TIAA-CREF Funds were included in the Claim Form as both C277 and C278 (one identifying the funds and the other not). However, as part of the Full Verification Exercise, Brown Rudnick became aware that the assets of one of the sub-funds were vested in a different DST called “TIAA-CREF Life Funds”. The Claimants therefore apply to substitute this DST as C277. Mr Middleton originally opposed this amendment in Middleton 2. But at the hearing Mr Watkins accepted that the threshold gateways in either CPR Part 17.4 or CPR Part 19.6 had been met in relation to all of the Claimants apart from C221 and C13B. The value of the claim is stated to be £110,000.

C297 C297A: The Claimant named in the Claim Form is “Virtus Investment Advisers Inc” and the claim is stated to be made in respect of three investment funds. The Claimants now apply to amend to substitute “Virtus Asset Trust” in respect of two of the funds and to bring a new claim in the name of “Virtus Alternative Solutions Trust" in respect of the other fund. Mr Shrimpton’s evidence is that between December 2020 and March 2021 Brown Rudnick discovered that the funds were related to two DSTs and that on 1 June 2022 it obtained the trust deeds and verified this information. Again, Mr Middleton originally opposed this amendment in Middleton 2. But at the hearing Mr Watkins accepted that the threshold gateways in either CPR Part 17.4 or CPR Part 19.6 had been met in relation to all of the Claimants apart from C221 and C13B. The value of the claim is stated to be £40,000.

Category E: Other Trusts

C63: The Claimant named in the Claim Form is the “Colleges of Applied Arts and Technology Pension Plan”. The Claimants apply to amend Schedule 1 to add the names of twelve individual trustees in their capacity as trustees of this plan. Mr Shrimpton’s evidence is that on 22 June 2020 the client confirmed that the pension plan itself was the owner of the relevant shares but that the trust deed (when supplied) showed that the pension plan was a trust established under the laws of Ontario and that it had no legal personality. It is also his evidence that a list of current trustees was supplied in November 2022. Mr Middleton accepts that the threshold gateway in CPR Part 19.6(3)(a) is met in this case and the value of the claim is stated to be £140,000.

C65 C79 C80 C98 C99 C101: In each of these cases the Claimants apply to amend Schedule 1 to add the names of the trustees to the name of a trust on the basis that each trust does not have separate corporate personality and that the claim must be brought by the trustees themselves. Mr Middleton confirms that the threshold in CPR Part 19.6(3)(a) has been met in each of these cases and the value of the claims are stated to be £2,000, £1,140,000 (C79 and C80), £11,840,000 (C98 and C99) and £140,000 respectively. The amendments in relation to C65, C98, C99 and C101 were first put forward in the Second Application.

Category F: Retirement Systems/Pension Trusts

C168: The Claimant is named in the Claim Form as the “New York City Teachers Retirement System”. The Claimants apply to amend Schedule 1 to add the name of the “Teacher’s Retirement Board” in its capacity as trustee of the relevant funds and to add the word “Funds” to the end of the description of the claim. Mr Shrimpton’s evidence is that the system was set up under statute and that the members of the retirement board hold the funds generated under the system. It is also his evidence that this information was confirmed in an affidavit sworn on 18 February 2022. Mr Middleton accepts that the threshold gateway in CPR Part 19.6(3)(a) is met in this case and the value of the claim is stated to be £3,350,000.

C221: The Claimant is named in the Claim Form as “QSuper Limited”. The Claimants apply to amend Schedule 1 to substitute “Australian Retirement Trust Pty Ltd” as the Claimant in its capacity as the “Trustee for Australian Retirement Trust”. Mr Shrimpton’s evidence is that Brown Rudnick originally assumed that QSuper Ltd was the correct Claimant because it held a power of attorney and entered into the retainer with the firm. However, it is also his evidence that during the Full Verification Exercise they discovered that the “QSuper Board” held the relevant shares in its capacity as the trustee of the “QSuper Fund” which was constituted by the Superannuation (State Public Sector) Deed 1990. He also stated that the Superannuation (State Public Sector) Act 1990 provided that the board was a “body corporate” and expressly empowered it to sue and be sued in its corporate name. In October 2021 Brown Rudnick proposed that Schedule 1 should be amended to state that C221 was “QSuper Board of Trustees for the QSuper Fund” and in February 2022 they refined the amendment to state that the Claimant was “QSuper Board as trustee for QSuper”.

However, it is also Mr Shrimpton’s evidence that on 4 March 2022 Brown Rudnick were informed that the QSuper Fund and the SunSuper Superannuation Fund had merged with effect from 28 February 2022 to become the Australian Retirement Trust and that its new trustee was the Australian Retirement Trust Pty Ltd. For this reason, therefore, the Claimants now apply to make a different amendment. Mr Watkins opposed that amendment on the basis that the threshold gateway in CPR Part 19.6(3) was not satisfied in this case because it failed the Sardinia Sulcis test and it was not possible to identify C221 by reference to an essential description.

C208 C217 C226 C231 C254 C272 C279 C280 C281 C285: In each of these cases the Claimants apply to amend Schedule 1 to add the names of a trustee or individual trustees to the names of institutional pension funds in a number of different jurisdictions in the USA and Quebec. It is the evidence of Mr Shrimpton and Ms Hogan that the pension funds themselves either do not have legal personality or cannot bring claims in their own names and that it is necessary for the claims to be brought by the trustees. Mr Middleton confirms that the threshold gateway in CPR Part 19.6(3)(a) has been met in each of these cases and the value of the claims are stated to be £3,640,000, £1,140,000, £3,000, £1,100,000, £2,900,000, £10,000, £380,000 (C279 and C280), £100,000 and £720,000 respectively. The amendments in relation to C208, C217, C226, C272 and C285 were first put forward in the Second Application.

Category G: Other Naming Issues

C152: The Claimant is named in the Claim Form as “Mediolanum International Funds Limited” and the nature of the claim is described as “on behalf of MEDIOLANUM SPECIALITIES SICAV – SIF Equity Income Fund. The Claimants apply to amend Schedule 1 to strike through both the name of the Claimant itself and part of the description to leave the Claimant as “MEDIOLANUM SPECIALITIES SICAV – SIF”. Mr Shrimpton’s evidence is that during the Registration Phase Brown Rudnick became aware that this was a “Société d’Investissement à Capital Variable” (“SICAV”) registered in Luxembourg but that the client gave instructions to make the claim in the name of a custodian. It is also his evidence that in July 2021 the client confirmed that the SICAV was a separate legal entity and had standing to pursue the claim in its own name. The Claimants applied to amend under CPR Part 19.6(3)(b) and Mr Middleton originally opposed this amendment in Middleton 2. But Mr Watkins did not do so at the hearing. The value of the claim is stated to be £180,000.

C154: The Claimant is named in the Claim Form as “Mercer Global Investments Europe Ltd” and the nature of the claim is described as made on behalf of “Mercer Global Investments Management Ltd” on behalf of eleven different funds. The Claimants apply to amend Schedule 1 to delete both the name of the Claimant and most of the description of the claim to leave the Claimant and description as “Mercer Global Investments Management Ltd on behalf of Mercer QIF CCF”. It is Mr Shrimpton’s evidence that during the Full Verification Exercise Brown Rudnick established that ten of the eleven funds related to other Claimants and that the eleventh was an Irish “Common Contractual Fund” and that its constitution provided for the new proposed C154 to bring the claim on its behalf. The Claimants also applied to amend under CPR Part 19.6(3)(b) and Mr Middleton originally opposed this amendment in Middleton 2. But Mr Watkins did not do so at the hearing. The value of the claim is stated to be £530,000.

C163: The Claimant is named in the Claim Form as “National Australia Bank Limited” and the nature of the claim is described as “custodian of Ausbil Investment Management Limited as responsible entity for the Candriam Sustainable Global Investment Trust and the Candriam Sustainable Global Equity Fund”. The Claimants apply to amend Schedule 1 to delete both the name of the Claimant and most of the description of the claim to leave the Claimant and description as “Ausbil Investment Management Limited as responsible entity for the the Candriam Sustainable Global Equity Fund”. Ms Hogan’s evidence is that it is now understood that the new proposed C163 is both custodian and trustee of the second fund (which has no separate legal personality) and that it was an error to include the first fund in the description of the claim. Mr Middleton accepts that the threshold gateway in CPR Part 19.6(3)(a) is met in this case and the value of the claim is stated to be £130,000. The amendment in relation to C163 was first put forward in the Second Application.

Category H: Trusts Incorrectly Named

C151: The Claimant is named in the Claim Form as “Mediolanum International Funds Limited” and the nature of the claim is described as made on behalf of three funds with “Challenge” in the name. The Claimants apply to amend Schedule 1 to strike through the names of the three funds and replace the description with “in respect of Challenge Funds”. They do not apply to amend the name of the Claimant itself. Ms Hogan’s evidence is that at some stage it came to Brown Rudnick’s attention that the three named funds were sub-funds of “Challenge Funds” an Irish unit trust created by a trust deed dated 24 February 1998. Mr Middleton accepts that the threshold gateway in CPR Part 17.4(4) is met in this case although the value of the claim is not stated. The amendment in relation to C163 was first put forward in the Second Application.

C175 C241: In both of these cases the Claimant is named in the Claim Form as the trustee of a particular fund and the Claimants apply to amend Schedule 1 to change the name of the fund or funds. In both cases Brown Rudnick discovered during the Full Verification Exercise that sub-funds of an Irish unit trust had been named rather than the trust itself and, in both cases, they apply to substitute the name of the trust. Again, they do not apply to amend the name of the Claimant itself. Mr Middleton accepts that the threshold gateway in CPR Part 17.4(4) is met in both cases and the value of the two claims are stated to be £110,000 and £1,720,000 respectively.

Category I: Wrong Capacity

C13: The Claimant is named in the Claim Form as “Amundi Luxembourg SA” and the nature of the claim is described as made in respect of nine funds most of which have “Amundi” in their titles. The Claimants now apply to amend Schedule 1 to amend the description of the claim so that it is only brought in respect of one of the nine funds, “Amundi SF”, which is an FCP under Luxembourg Law and has no legal personality of its own. Mr Middleton accepts in Middleton 3 that the threshold gateway is met in relation to this amendment. However, the Claimants also apply to name two new Claimants and to advance two new claims as I now explain.

C13A: The Claimants also apply to amend Schedule 1 to add a new Claimant “Amundi Investment Funds”. It is Ms Hogan’s evidence that during the Full Verification Exercise Brown Rudnick established that the remaining eight funds identified in the Claim Form had originally formed part of a number of FCPs but have now been merged or transferred into two SICAVs which have their own legal personality. They also established that a number of the funds had undergone other name changes and mergers or (in the case of C13A) that the claim had been brought in the wrong name in the first place. The first fund named in the Claim Form was “PI Investment Funds – European Equity” which had formed part of a SICAV called “PI Investment Funds” and had changed its name to “Amundi Investment Funds” on 21 February 2020. They, therefore, apply to amend to add a new claim C13A in the name of Amundi Investment Funds. Mr Middleton accepts in Middleton 3 that the threshold gateway in CPR Part 19.6(3)(a) is met in relation to this amendment.

C13B: The Claimants also apply to amend Schedule 1 to add a new Claimant “Amundi Funds” and a new description of the claim as “in respect of” the remaining funds or sub-funds. Ms Hogan’s evidence is that all of those funds had undergone name changes, two had merged and that all seven had been transferred into a SICAV called “Amundi Funds” between 2018 and 2021. The Claimants therefore apply to amend to add Amundi Funds as C13B and to amend the names of the six remaining funds or sub-funds in the description of the claim. Ms Hogan also accepted in Hogan 3 that there had been a typographical error in the name of one of the funds (because it had been taken from trading data). The value of all three claims is stated to be £3,700,000 and all three of the amendments were advanced for the first time in the Second Application. Mr Watkins opposed these amendments on the basis that it is not possible to identify the Claimant by reference to an essential description of the claim.

C145: The Claimant is named in the Claim Form as “Marathon Asset Management LP” and the nature of the claim is described as being on behalf of eleven different funds most of which have “Marathon” in their name. The Claimants apply to amend Schedule 1 by substituting nine of the funds themselves, the general partner of the tenth fund and the trustee of the eleventh fund as Claimants C145A to C145J. Ms Hogan’s evidence is that during the Full Verification Exercise Brown Rudnick discovered or appreciated that the eleven funds were Delaware limited partnerships, Cayman exempted companies, a Cayman exempted limited partnership and a Cayman exempted trust. In all cases, therefore, the claims should have been brought by the funds themselves or by the general partner or trustee. Mr Middleton accepts in Middleton 3 that the threshold gateway in CPR Part 19.6(3)(a) is met in relation to this amendment and the total value of the eleven claims is stated to be £12,980,000. These amendments were first advanced in the Second Application.

C221

Mr Watkins submitted that C221 was named in the Claim Form as “QSuper Limited” without any description of the claim and that there was no jurisdiction to substitute a different legal entity, the “QSuper Board of Trustees” or to add a new description of the claim “as trustees of the QSuper Fund”. He submitted that CPR Part 17.4(3) did not apply because this was not a case where the correct entity was identified and the wrong name applied but a case where the correct entity was not identified at all: see G4S at [200] (above). He also submitted that since no essential description of the claim was given in Schedule 1 CPR Part 19.6 did not apply. He placed particular reliance on G4S at [204] where Mann J appeared to accept that a description of the relevant fund for which the claimant held the shares was necessary.

Mr Nash submitted that the essential description of C221 was to be found in the Claim Form and Particulars of Claim rather than in Schedule 1 and that it was only material to identify C221 as the owner of shares in the Bank during the Relevant Period. He relied on the fact that paragraph 3 of the Claim Form identified the Claimants as “holders of interest in securities” issued by the Bank at all material times. He relied on Insight at [52] (above) and Leggatt J’s analysis of the SmithKline case. For present purposes, so he submitted, it was only material for legal purposes to plead that C221 was the owner of shares and not to identify the relevant fund or the capacity in which the Claimant held them.

If there had been only one claimant making a claim for the diminution in value of its shares in a company, I would be prepared to accept that the essential description of the claimant would be the owner of relevant shares. But I am not satisfied that that is a sufficient description where the Claim Form is issued in the name of 310 different claimants. The only way in which the Bank and its legal advisers could establish the identity of the individual Claimants was by reference to Schedule 1 (or then by reference to Appendix A to the Particulars of Claim).

But in any event, Schedule 1 (and Appendix A) formed part of the identity of the Claimants pleaded by Brown Rudnick when they issued (and then amended and re-issued) the Claim Form and served the Particulars of Claim. Brown Rudnick specifically pleaded the identity of the Claimants as follows in paragraph 1 of the Claim Form:

In my judgment, therefore, Schedule 1 formed part of the identification of the Claimants in the Claim Form. In the Particulars of Claim (where further changes had been made to the names and descriptions of the Claimants) Brown Rudnick also pleaded as follows:

Moreover, I am satisfied that it is not a sufficient description of an individual Claimant simply to plead that they held shares in the Bank. As Mr Watkins submitted, to succeed in a claim under section 90A a claimant has to prove reliance and loss. Schedule 10A, paragraph 3(4) provides as follows:

Finally, on 6 February 2023 Miles J ordered the Claimants to provide Further Particulars of Standing setting out the basis on which they assert standing and title to sue. I accept that those particulars do not form part of the essential description of the Claimants for the purpose of CPR Part 19.6. But in my judgment the Claimants had to provide sufficient information about their beneficial ownership of shares in the Bank at the relevant time to enable the Bank to understand the basis on which the claim was made and to undertake its own investigation. I, therefore, agree with Mann J in G4S at [205] that the essential description of C221 required Brown Rudnick to state the fund, pension plan or retirement system on whose behalf the claim was made.

For these reasons, therefore, I accept Mr Watkins’ submission that the amendment from “QSuper Limited” to “QSuper Board of Trustees as trustees for the QSuper Fund” does not satisfy the Sardinia Sulcis test. Brown Rudnick were seeking to substitute a body corporate created or incorporated by statute for a limited company and, in the absence of an essential description of the function or capacity of the Claimant, it is not possible in my judgment to treat the amendment as a change of name rather than as a change of identity and the threshold gateway in CPR Part 19.6 is not met.

I hold, therefore, that the threshold gateway in CPR Part 19.6(3)(a) is not satisfied for C221 and I dismiss the application for permission to make this amendment. Mr Watkins conceded that if I had found that the first proposed amendment met the threshold test, then the second substantive amendment also met that test. I agree and for the reason which he gave. The first proposed amendment was intended to introduce an essential description of the capacity in which the Claimant was intending to make the claim, namely, as the trustee for the QSuper Fund. The second amendment (ignoring a minor amendment to drop the word “Fund”) involved a change in both the name of the trustee and the name of the retirement fund. But because the first amendment fails to satisfy the threshold test, I need not consider the subsequent amendments further.

C13B

C13 was named in the Claim Form as “Amundi Luxembourg SA” and the amendment to “Amundi Funds” involves the substitution of a different legal entity as Claimant (a SICAV for a société anonyme) with a different name. The essential description of the claim has also changed. Indeed, the claim is now brought in respect of six funds all of whom have changed their names either as a result of mergers or name changes. Mr Watkins submitted, therefore, that this was an example of the kind of triple mistake identified by Mann J in his Category 6 change of name cases at [253]. The essential description of the six funds was wrongly pleaded to begin with. The description no longer applies because of name changes and mergers. Finally, the entity pleaded as the Claimant does not (or did not) hold the shares because they are now held by a SICAV which is entitled to bring a claim in its own name.

Mann J accepted that the threshold gateway would be satisfied if the relevant amendment had involved a wrong entity: see [205] to [208]. If, therefore, the amendment had involved no more than the addition or substitution of Amundi Funds as C13B I would have held that CPR Part 19.6(3)(a) was satisfied in the present case. However, Mann J distinguished his Category 2 cases because the essential description involved the wrong fund which did not own the shares: see [255]. It is possible, in my judgment, to distinguish G4S in the present case because Ms Hogan’s evidence was that the original funds owned the shares but have gone through a series of name changes as a result of mergers, name changes and then transfers to a single SICAV.

However, Mr Watkins submitted that the mere similarity between the names of the individual funds is insufficient to satisfy CPR Part 19.6(3) and that C13B named the wrong fund in circumstances where there were many similarly named funds which could potentially have been relevant. After some hesitation, I accept that submission. In my judgment, “six Amundi Funds” is not a sufficient description of the claim to save the amendment. If there had been a typographical error in the name of a single fund or a change of name in one or two funds after the Claim Form had been issued, that might have been different. But in the present case, all of the relevant changes of name, mergers and transfers to Amundi Funds had taken place well before the Claim Form was issued. I hold, therefore, that the threshold gateway in CPR Part 19.6(3)(a) is not satisfied for C13B and I dismiss the application for permission to make this amendment.

Mr Watkins submitted that the Court should refuse to exercise its discretion to permit the remaining amendments for reasons similar to those which Mann J gave for refusing to permit the amendments in G4S. He submitted that the description of the claims handling which Mann J gave in [291] (above) applied equally well to the present case for the following reasons:

Mr Nash did not really try to defend Brown Rudnick’s conduct of the claims or of the First Application although he submitted that it was nothing like as bad as the conduct of the claims in G4S. He placed significant reliance upon the fact that Brown Rudnick had served the Letter of Claim and given notice of the claims before the limitation period had expired (or arguably expired) and he distinguished G4S on that basis. But his principal argument was that the Claimants would suffer prejudice if the Court refused permission which would far outweigh any unsatisfactory conduct on the part of Brown Rudnick and the other factors upon which Mr Watkins relied and, in particular, that the Bank could be compensated in costs for any prejudice which it had suffered.

In answer to Mr Nash’s submissions Mr Watkins submitted that the same argument was advanced in G4S and even though the defendant did not rely on any prejudice, Mann J did not exercise his discretion to grant permission but described it as “less compelling than might be the case in other litigation”: see [289] (above). Mr Nash submitted that I should not follow G4S on this point and that, if necessary, the decision was wrong. He submitted that in substance Mann J’s decision was punitive and that I should follow Insight (which has been consistently followed in other cases) and grant permission. In the light of those submissions, I now turn to consider the relevant factors in the present case.

Notification

There is no dispute that the Claimants gave notice of their claims to the Bank before the limitation had expired (or arguably expired). The present case is therefore distinguishable from G4S where the defendant was not notified of the claim until three months after the limitation period had expired: see [287]. It is fair to say that the Letter of Claim was served only on 5 June 2020 and very shortly before the limitation period expired. But the letter itself was sufficiently detailed to put the Bank on notice of the specific allegations which it had to meet.

There is no doubt that the notification before the limitation period has expired is regarded as an important factor in the exercise of discretion: see, in particular, the SmithKline case at [44] and Adelson at [57](ii). In American Leisure Her Honour Judge Walden-Smith considered this to be a significant reason for distinguishing Insight: see [64]. In Jalla Stuart-Smith also considered it important that the defendant had not been notified until after the expiry of the limitation period: see [151].

There are two principal reasons why the Court attaches significance to notification before the end of the limitation period. First, it gives the defendant an opportunity to prepare for the claim (e.g. by taking advice and preserving evidence). Secondly, if the Sardinia Sulcis test is satisfied, a defendant can hardly complain that it has been deprived of a limitation defence if it is given adequate notice before the limitation period has expired that the claim will be brought together with an essential description of the claimant and the claim. If there remains a reasonable doubt about the identity of the claimants, this is a factor which the Court can take into account and reduces the weight to be attached to the notification.

It might be said that I should attach little or no weight to the Letter of Claim because it did not identify the individual Claimants sufficiently clearly and wholesale amendments have been made on a rolling basis to the list of Claimants ever since. In my judgment, the answer to this point is provided by the Standstill Agreement and the identification of the Claimant Universe in clause 1.9. The Bank was prepared to agree to suspend the limitation period for any party with the right to bring any of the claims set out in the Letter of Claim “for, or on behalf of or in place of the Proposed Claimants”. As Mr Nash submitted, this was a commercial decision for the Bank and it considered it in its interests to agree to suspend time for the entire Claimant Universe to prepare to meet the claims. It also shows that at the commencement of the claim, the Bank was less concerned to identify every member of the claims group with certainty before the limitation period expired.

There was some debate before me about the effect of the Standstill Agreement and the significance which I should attach to it given that the Bank later terminated it and it would provide no answer to a limitation defence except for the standstill period itself. The significance which I attach to it is that it provides evidence of the way in which the Bank and its advisers approached the notification of the claims before the end of the limitation period. The Bank treated the Letter of Claim as a notification by the entire Claimant Universe and agreed to suspend time accordingly.

For all of these reasons, therefore, I attribute significant weight to the Letter of Claim and the notification of the claims before the limitation period expired although this is not, in my judgment, a sufficient reason by itself for distinguishing G4S or for exercising the Court’s discretion to permit the remaining amendments by itself. I therefore move to consider the quality and justification for the errors made in identifying the individual Claimants.

The Errors

Both Mr Nash and Mr Watkins submitted that I should deal with the exercise of discretion on a global level. Mr Watkins submitted that the evidence relating to individual mistakes was “thin” in a number of cases. But given that he accepted that the threshold gateway was met for all of the relevant Claimants (apart from C221 and C13B) and the general findings which I make in this section, I do not consider that it would have affected my overall conclusions to examine the detailed explanations in each case.

Mr Shrimpton gave a number of explanations for the mistakes made by Brown Rudnick in Shrimpton 1. He explained that the Claim Form was issued between Hildyard J’s judgment in October 2019 in the Tesco litigation (later reported at [2020] Bus LR 250) and Mann J’s judgment in G4S. He stated that Brown Rudnick had taken a “pragmatic approach” to the question whether individual Claimants fell within section 90A and he then continued:

I accept Mr Watkins’ submissions that the number of errors was very large. I also accept his submission that Mr Shrimpton did not provide a fully satisfactory explanation for such a large number of errors. In particular, I am not satisfied that the limited time available to complete the process of identifying potential claimants, the time pressure under which Brown Rudnick were clearly operating and the mistakes which their clients themselves made provide a reasonable justification for the failure to identify the name of each Claimant correctly and to provide an essential description of the nature of each claim. I say this for the following reasons.

In Manning and Napier Fund Inc v Tesco plc [2017] EWHC 3296 (Ch), [29] (cited by Miles J in Allianz Global Investors GmbH v RSA Insurance Group Ltd [2021] EWHC 3091 (Ch) at [7] and [8]) Hildyard J stated this in the context of a claim under section 90A of FSMA:

It is clear that Brown Rudnick did not take any steps to assemble the claims group until April 2020 which was only two months before the limitation period was about to expire (and FRT only began to advertise for Claimants at the end of May). Moreover, it is clear from the deletion of 189 Claimants that many of the original subscribers had second thoughts about bringing a claim before the Claim Form came to be issued. Most of the errors which Brown Rudnick made in Schedule 1 can therefore be explained by the failure to carry out the “orderly and careful assessment” which Hildyard J described (above) in relation to each Claimant before the limitation period expired.

I accept that the failure to carry out such an assessment in relation to each Claimant was due to the extreme time pressure under which Brown Rudnick were operating at the time. But in my judgment, that is not a reasonable justification. I was given no explanation for the background to the FRT circular, whether it was Brown Rudnick themselves who saw the commercial opportunity and organised the claims group and, if so, and why they took no preparatory steps before April 2020. I therefore accept Mr Watkins’ submission that Mann J’s comments in G4S at [286] apply equally to the present case.

I also accept Mr Watkins’ submission that G4S did not represent a change in the law or a change in practice. It is not entirely clear to me what Mr Shrimpton meant by adopting a “pragmatic approach” before G4S. But if he meant by this that Brown Rudnick failed to establish a chain of custody, to check with clients who held each relevant parcel of shares (and in what capacity) and to establish whether they had corporate personality and the right to sue, then that is not a reasonable explanation either. As Mr Watkins submitted, an English lawyer drafting a claim form would have asked some pretty basic questions about the information which they had been given when preparing the Claim Form. Such a solicitor would have asked at the very least whether the entity identified as the Claimant had corporate personality and, if so, in what capacity it held the legal or beneficial ownership of the relevant shares.

Indeed, I would go further. As I pointed out in argument, it is necessary for a solicitor to ask questions of this nature in order to be satisfied that they have authority to issue the Claim Form and can properly sign a statement of truth. The decision which I had in mind when I made that observation was Adams v Ford [2012] 1 WLR 3211 which was concerned with the issue of a Claim Form on behalf of claims group of 273 claimants and in which the Court of Appeal set out guidance for exactly this sort of case and well before the Tesco litigation. It is sufficient for present purposes to cite the headnote:

There was no challenge to Brown Rudnick’s authority to issue the Claim Form on behalf of any of the Claimants or submission that there was an abuse of process and it was not necessary for me to consider that issue. But Adams v Ford provides strong support for Mr Watkins’ submissions (which I accept) that a solicitor should have carried out sufficient checks to establish the identity of each individual Claimant and that they had authority to issue on its behalf before doing so. It also provides support for Mr Watkins’ submission that Brown Rudnick should have known this and acted accordingly well before Mann J’s decision in G4S.

Where I part company with Mr Watkins is that the errors made by Brown Rudnick in Schedule 1 were such as to cause reasonable doubt in the minds of the Bank’s officers and their advisers as to the true identity of the Claimants. Mr Watkins submitted that the mistake in relation to C13B generated real doubt about the identity of that Claimant. I accept that submission and I would have exercised my discretion to refuse to permit the amendment to C13B even if I had been satisfied that the Claimant had passed through the threshold gateway. I would also have exercised my discretion to refuse to permit the amendment in relation to C221 for the same reason.

However, I am not satisfied that those two examples are truly representative of the remaining Claimants. The Bank accepts that the threshold gateway under CPR Part 17.4(3) is satisfied in relation to Categories A and B. It follows, therefore, that it accepts that in those cases the mistake was not one which would cause reasonable doubt as to the identity of the Claimant. The Bank also accepts that the threshold gateway under CPR Part 17.4(4) is satisfied in relation to Category H which involves a change of capacity rather than a change of name or a change of party. Again, I can see no real doubt about the identity of the Claimant in those cases.

The Bank accepts that the threshold gateway under CPR Part 19.6(3)(a) is satisfied for Categories C to E and in those categories the only real doubt was whether the trust, fund or retirement system has corporate personality and, if so, whether it can bring the claim in its own name or whether it is necessary to join the trustee or trustees. I am not satisfied that there was any real doubt caused in relation to the identity of most of the relevant funds themselves or the substance of the claim. The Bank would have known in commercial terms what investment fund was bringing the claim. I am prepared to accept that some of the amendments in Category G and Category I might have led to a reasonable doubt but I am not satisfied that the uncertainty was so great that I should exercise my discretion to refuse to permit those amendments for that reason.

Prejudice

I am satisfied that the Claimants will suffer significant prejudice if the Court refuses permission to amend. In particular, they will lose the opportunity to bring their claims within the limitation period (or arguably so) and will face a limitation defence which they would otherwise have avoided. There was no argument that this is legitimate prejudice which the Court is entitled to take into account: see, e.g., Bell J’s judgment in the SmithKline case at first instance at [40].

By contrast, I am satisfied that there is no prejudice to the Bank in being deprived of a limitation defence. This is because section 35(6) and the Civil Procedure Rules provide for the Court to permit amendments to correct the name of the Claimant or add or substitute a Claimant after the expiry of the limitation period which relate back the issue of the Claim Form. Mr Andrew Henshaw QC did not consider the loss of the potential limitation defence to be a relevant or weighty factor: see Rosgosstrakh (above) at [87](v). Leggatt J considered it to be a windfall in Insight: see [112]. Finally, Fraser J attached little weight to this “technical knockout” in TRW: see [61].

In his Skeleton Argument Mr Watkins submitted that the loss of a limitation defence was prejudicial to the Bank. He also submitted that there was a real value in reducing the number of Claimants whom the Bank had to face and the total value of the claims and that the Bank would lose that advantage if the Court granted permission. I reject those submissions. I attach little weight to the fact that the Bank will be deprived of a limitation defence and will have to face the additional claims.

I accept, however, that the Bank has suffered prejudice as a consequence of the delay in fixing the claims group and narrowing the Claimant Universe. I also accept that this prejudice cannot be measured solely in terms of costs but also in terms of stress and management time. Both the Bank itself and its witnesses (especially those individually named in the Particulars of Claim) have had, and will have, substantial claims hanging over them for longer than they should have done. Moreover, the effect of the delay whilst the Claimant group has been properly identified is to delay longer the trial of stale claims. In my judgment, this is prejudice which I should take into account.

Although I accept that the Bank has suffered prejudice to which I should give weight, I am also satisfied that the balance of prejudice comes down strongly in favour of the Claimants. As Mr Nash submitted, the action will continue whether or not the Court permits the amendments and the Bank will have to face the remaining claims in any event. It will continue to have the same evidential difficulties, it will encounter the same stress and it will have to devote the same management time to these claims. Moreover, the extent to which the Claimants are able to establish wrongdoing under section 90A will largely turn on the documents and the Bank should have taken adequate steps to preserve them long before now. I accept those submissions. In TRW Fraser J adopted the same reasoning: see [66] (above).

Delay

On 25 March 2021 Brown Rudnick re-issued and amended the Claim Form. It was then served on the Defendants. In their letter dated 30 April 2021 Latham & Watkins first raised their concerns about material differences between the Proposed Claimants named in the Standstill Agreement and the Claimants listed in Schedule 1 and on 19 November 2021 Brown Rudnick accepted that if the parties could not reach agreement, it would be necessary to issue an amendment application.

In my judgment, Latham & Watkins’ letter dated 30 April 2021 was a red flag which ought to have alerted Brown Rudnick to the need to make both Applications. If they had acted reasonably promptly, then I see no reason why they could not have issued both Applications and had them heard by the end of 2021. Moreover, they themselves had recognised the need for the Applications by November 2021. Again, if they had issued the Applications by the end of that year, they could have been heard by Easter 2022 or, at the latest, by July 2022. However, the First Application was not listed until 15 February 2023 and the Second Application on 9 June 2023 and they were not heard and determined until the end of July 2023. Taking a rough and ready approach, I consider that there was a delay of between 12 and 18 months for which the Claimants must account.

Mr Watkins submitted that this delay was fatal. He pointed out that Mann J did not consider a delay of three months to be prompt in G4S: see [288]. He also relied on Jalla where a delay in issuing the amendment application between April 2018 and June 2019 was one of the reasons why Stuart-Smith J would have refused permission: see [151]. Finally, he relied on Best Friends Group where a delay in issuing the amendment application between July 2015 and July 2016 was the principal reason why the Court of Appeal upheld the decision to refuse permission to amend.

I am satisfied that there is no reasonable justification for this delay of between 12 and 18 months in the present case. Once Latham & Watkins had raised concerns about the Claimant group on 30 April 2021, a short period of delay can be excused whilst the parties sought to limit the issues and the number of Claimants for whom an amendment application was required to be made. Nevertheless, by the end of February 2022 the battle lines had been clearly drawn and there is no reasonable justification for the delay after that date. The Claimants ought to have issued the Applications by that date (at the latest). However, they dragged their feet and the Bank had to force them to issue. It is unnecessary for me to decide whether they would have issued the First Application by 15 February 2023 if the Bank had not issued its own application for directions and forced the Claimants to agree to a hard deadline. But at the very least this demonstrates their overall reluctance to apply to court.

I am satisfied, therefore, that there is no reasonable justification for a large part of the delay of between 12 months and 18 months in this case and that this unjustified delay is a strong factor against the exercise of the discretion in the Claimants’ favour. On the other hand I am not satisfied that the delay is fatal to the Applications or that I should refuse to exercise my discretion to grant permission to amend because of this delay alone. I have reached this conclusion for the following reasons:

The Balance

Balancing these factors against each other, I have reached the conclusion that I should exercise the discretion to grant permission to amend. In my judgment, the fact that the Claimants notified the Bank before the expiry of the limitation period coupled with the prejudice which they will suffer if I refuse permission outweigh the absence of a reasonable excuse for the errors in Schedule 1 and the delay in issuing the First Application. Although the Applications have taken a very long time to resolve, I give weight to the fact that the Defendant will not be prejudiced in the future conduct of the action and to the fact that there has been no real doubt about the identity of most of the Claimants.

I add the following observations because I am conscious that I have reached a different decision from that made by Mann J in G4S. I have made it very clear that I am critical of the way in which the claims group in this action was formed by subscription and the dangers associated with a solicitor issuing a Claim Form on behalf of multiple claimants without authority. Solicitors who are forming claims groups for securities litigation would do well to remind themselves of Hildyard J’s comment in Manning and Napier Fund Inc v Tesco plc (above). Moreover, a solicitor cannot be criticised for refusing to issue a Claim Form during the limitation period where the client has failed to give adequate information or authority to enable the solicitor to sign the statement of truth. Nevertheless, given the other factors which I have considered and applying Insight, I take the view that it would be punitive to refuse permission to amend because I may disapprove of the way in which the claims group was formed shortly before the limitation period expired.

Mann J reached a different conclusion in G4S at [289]. He stated that he had not ignored the prejudice to the Claimants but that it had to be weighed up against the other relevant matters and should not be regarded as determinative. It is not possible to draw direct comparisons between the amendments which the Claimants applied to make in that case or their conduct more generally. Moreover, I am not bound by the exercise of discretion in G4S. Nevertheless, I consider that it is appropriate to give much greater weight in the present case to the prejudice to the Claimants if they are refused permission to amend than Mann J was prepared to do so in that case. I consider that this is appropriate in the present case partly because of the nature of the amendments (above) and partly because (for the most part) the Bank can be compensated for the delay in the meantime by an appropriate order for costs.

The Second Application

The Second Application was issued four months after the First Application. Ms Hogan’s evidence was that this was because of a conflict of interest. In his oral submissions Mr Nash told me that the conflict was unrelated to the claims in this action. I agree with Mr Watkins that the very limited evidence about the conflict was unsatisfactory and did not justify the additional delay. But I am not satisfied that a further delay of four months affects decisively the balance between the individual factors which I have considered in relation to the First Application. Accordingly, I will grant permission to amend in relation to the Second Application apart from C13B.

I grant permission to the Claimants to amend Schedule 1 to the Claim Form to make the amendments which I have set out in section IV (above) apart from the amendments to C221 and C13B. In relation to those amendments, I refuse permission to amend because the threshold gateways in CPR 17.4 and CPR Part 19.6 are not satisfied and because I would have exercised the Court’s discretion to refuse permission in any event. I also add that even if I had been minded to exercise the Court’s discretion to refuse permission for the remaining amendments on the basis that the present case is on all fours with G4S, I would have granted permission for the amendments in Category A, Category B and Category H. In my judgment, those amendments fall squarely within Mann J’s Category 6: see [292].

I propose to hand down judgment remotely and to adjourn the hearing of any consequential matters to a date to be fixed (including the consideration of any appropriate order for costs to compensate the Bank for the additional time and costs which it has incurred in relation to the issue of establishing the identity of the Claimants and the amendments to the Claim Form). I also invite the parties to consider whether it is appropriate to deal with the form of order for this hearing separately or whether it can be combined with the first hearing of the CMC.