Arif & Ors v Berkeley Burke Sipp Administration Ltd

This is my judgment on two applications which were argued before me on 15 November 2017 through oral submissions made by Mr John Virgo on behalf of the Claimants and by Mr Jonathan Kirk QC (on the GLO issue) and Mr Thomas Samuels (on the transfer issue) on behalf of the Defendant. Their respective submissions were outlined in their Skeleton Arguments filed before the hearing. The hearing of the two applications was listed for one day but, in the event and as a result of at least one of the three developments during the hearing mentioned below, there was insufficient time for Mr Samuels to complete his submissions on the transfer issue and, so it followed, Mr Virgo had no opportunity for an oral reply on either that or the GLO issue. After the hearing, therefore, the parties filed further submissions (the Defendant’s on the transfer issue, to complete their submissions, and the Claimants’ replying on both aspects) and this written judgment takes the place of any shorter ex tempore judgment that might have been given at the end of the hearing, had time permitted.

As this judgment is written in those circumstances, I do not intend to analyse at too great a length the nature of the Claims, nor to elaborate or the issues between the parties which find expression in their statements of case beyond the point required for a proper determination of the two applications.

There are two Applications before the court raised in the context of 8 issued Claims. Some of the eight involve claims by individual claimants whereas others involve claimants grouped together (the maximum cluster is 30). The largest group Claim (and another one involving 8 claimants) has yet to be served on the Defendant. In all, and as things presently stand, Mr Virgo represents 77 Claimants and does so upon the instructions of two firms of instructing solicitors, Wixted & Co Limited and Hugh James LLP. Claims by other potential claimants, raising the same fundamental allegations against the Defendant, are said to be in the pipeline.

The Applications are:

In order to put the GLO Application and the Transfer Application in context, it is necessary to outline in basic terms the allegations made by the Claimants against the Defendant.

They arise out of the alleged “mis-selling” of self-invested pension plans (“SIPPs”) by the Defendant to existing pension holders who each transferred the value of their existing plans into such a SIPP having been introduced to the Defendant by one of nine “Relevant Introducers”. I should note here that, at the hearing, the Claimants referred to the SIPPs as being “single asset SIPP’s”, on the basis that most of the investor’s money apart from a sum set aside for operator’s fees was used to make an onward investment in a single underlying asset. Although the Defendant took no particular exception to the use of that description for the purposes of argument, it is important to record that the Defendant does not accept that every SIPP was indeed single-asset in nature. In any event, the Claimants say the SIPP investments were made in circumstances which (as the Relevant Introducers were not themselves authorised to carry on a regulated activity for the purposes of section 19 of the Financial Services and Markets Act 2000 (“FSMA”)) trigger three distinct bases of liability or accountability. Those are as follows:

Each of these suggested bases of liability is rejected by the Defendant. Without attempting to do full justice to the Defendant’s pleaded case, it is a fundamental plank of its Defence that it did not “mis-sell” anything and that each SIPP was established by it on an execution-only basis. Therefore, in very broad terms, the Defendant says the COBS rules upon which the Claimants rely (and what is suggested by the Claimants to be Guidance informing the standard of care required of the Defendant) either had no application in the circumstances of these investments, or, alternatively, that the requirements of the pleaded Rules and what I might describe as the desiderata contained within any such “Guidance” were satisfied by it, and by the terms of its documentation, in that execution-only context. Indeed, so far as COBS is concerned, the Defendant says the execution-only context in which it operated meant that there was no obligation to assess suitability (COBS 9) or appropriateness (COBS 10) and that the provisions of COBS 11.2.19R were such that it was required to act in accordance with a specific instruction by the client to invest.

So far as the claims under section 27 are concerned, the Defendant says that these same factors may feed into the question, should it even arise, as to whether it is just and equitable to refuse relief by reference to section 28(3). On the anterior question of whether or not section 27 is triggered (and here I clarified with Mr Kirk QC how paragraph 10 of the Master Defence was to be read for the purposes of the argument before me) the Defendant does not admit that any Relevant Introducer, in relation to any particular claimant, did in fact transgress the “General Prohibition” (section 19 of FMSA) by the activity, whilst not authorised, of either arranging the investment (article 25 of the Regulated Activities Order (“RAO”)) or giving advice upon the merits of doing so (article 53 of the RAO). Even if such advice or arrangement was present in any particular case, then, as developed by Mr Kirk in his submissions, it was not advice or arrangement in relation to the SIPP, which the claimants say falls within the scope of articles 25 and 53 as “a security” as defined by articles 3(1) and 82 of the RAO, because the “real investment” (my colloquialism) was not the SIPP itself but the underlying investment vehicle or venture into which the SIPP investment was ploughed. As Mr Kirk QC explained, those underlying investments were diverse in nature, ranging from ventures such as forestry in Australia or Fiji to a residential property in Arkansas and a holiday apartment in Grenada and, more importantly he submits, none of the nine different types of investment was a regulated investment (though the claimants say this is to miss the point that emerges from the distinction between the investment in the SIPP and the investments made by the SIPP trustees). I should also add that within the Defendant’s position on the issue, should it come to that, as to whether section 28(3) applies, is its reliance upon the doctrine of ex turpi causa against some of the Claimants – those who are suggested to have received monies or benefits out of or in connection with their SIPP investments which were not compatible with their fiscal status as pension investments – which, where applicable and made good, ought to feed into the section 28 “defence”.

The above is my broad summary, for the purpose of deciding the two applications, of the issues which emerge from the Master Particulars of Claim (to which the 77 Claimants either have subscribed or intend to), the Master Defence served in response to them and the Claimants’ Master Reply. In addition, the parties have engaged on the Claimants’ Schedule of Particulars and the Defendant’s Response to that Schedule (each served pursuant to the Order of HHJ Matthews dated 27 May 2017) which summarises in tabular form the particular matters relied upon in relation to individual Claimant.

In addition to the Claims issued on behalf of the existing 77 claims, more are said to be in the pipeline. The prospect of further claimants subscribing to the Master Particulars of Claim and having their individual circumstances brought into the Schedule of Particulars was highlighted by the terms of the letter dated 15 November 2017 from High Street Solicitors, Liverpool, to the court. Since that letter was written, and following receipt of the parties’ written submissions made after the hearing, Wixted & Co Limited have notified the court of the existence of two further claimants (whose claims have been recently issued for limitation reasons) who intend to join in the allegations made by the others.

I have mentioned at the beginning of this judgment how there proved to be insufficient time to dispose of the applications at the hearing, or to complete the parties’ submissions.

There were three developments during the hearing, the last of which took the form of two security alerts within the court building towards the end of the court day (and the second of which sounded the death-knell for any notion that arguments, at least, might be completed within an extended court sitting). The other two developments related to the GLO Application. The first was Mr Virgo’s enumeration, during the course of his oral submissions, of 10 potential issues, said to be common to all Claimants, which might serve as “GLO issues” within the meaning of CPR 19.10. I think it is fair to describe this as a development as one of the Defendant’s objections to the making of a GLO was (to quote from paragraph 14 of its Skeleton Argument) that, as worded in the Schedule to the GLO Application, “the Claimants’ proposed list of GLO issues consists of broad questions which, effectively, re-word the causes of action…… . It appears that no proper thought has been given to their effectiveness.” As I myself had thought might be the case when reflecting upon that criticism, Mr Virgo and his team appear to have concluded that the application might benefit from further thought being applied to just what kind of specific legal and factual issues are worthy of being categorised as GLO issues.

The second development during the course of Mr Virgo’s submissions was the receipt of the letter from High Street Solicitors mentioned above. This letter (written at the invitation of Hugh James LLP) was written in support of the GLO Application and stated:

During the course of his submissions Mr Kirk QC also informed me that his client had received pre-action protocol letters on behalf of a further 66 investors. The prospect of a doubling of the number of claimants with claims resting upon allegations which are the same as or related to those summarised by me above is clearly a relevant matter when considering how the claims can best be case managed. By his summary reasons in support of his Order dated 10 April 2017 in this case HH Judge Havelock-Allan QC stated that, in considering whether a GLO is appropriate, much will depend upon the number of likely additional claimants as well as the identification of generic and specific issues. The GLO Application and the Transfer Application are both case management applications, raising for consideration the most rudimentary case management questions as to which court should continue to have the management of them and later try them and how, if at all, the numerous claimants and/or issues should be marshalled for any such trial.

At the outset of the hearing I raised with counsel the question of whether or not the Transfer Application should be heard and decided before the GLO Application. Although the Defendant’s Skeleton Argument (proposing transfer to London) had addressed both aspects, I could see grounds for the Defendant (certainly) adopting the position that, if I was to accede to the Transfer Application, then I should leave the decision as to whether or not to make a GLO for the judge in the transferee court. Indeed, I could foresee grounds for potential complaint by either party if I decided in favour of a transfer and then proceeded to determine the GLO Application (when the complainant might have hoped the judge in London would have come to the opposite conclusion on it). However, both parties were content for me to hear oral argument on both applications and to decide each of them, and submissions (completed in writing) have been made on that basis.

It therefore seems to me to be appropriate to decide the GLO application first, not simply because it was made first in time but also because the decision upon it could have an impact upon the Transfer Application having regard to the way the Defendant puts its case on the latter.

In accordance with the requirement of the Part 19 Practice Direction, the GLO Application was made to Dingemans J as the Queen’s Bench Presiding Judge of the Circuit who then referred the matter to me on 10 November 2017. The first point to make about the GLO Application is that it is not within my sole power to make a GLO. The making of a GLO in this case is subject to the consent of the President of the Queen’s Bench Division and the most the applicant Claimants can hope from me at this stage, if I view their application favourably, is that I say I am “minded to make the GLO”: see CPR PD 19B paras. 3.3 and 3.4.

At the start of Mr Virgo’s submissions on the GLO Application I indicated that I would welcome the parties’ submissions, at the level of principle applicable in any suggested GLO context, on what I described as, first, the specificity and, secondly, the conclusiveness of suggested GLO issues. Although a draft of the proposed GLO is not one of the documents to be sent to the President with any commendation in support from me, the application notice and supporting evidence are two such documents and it is clear that “the GLO issues” – meaning the common issues of fact or law that are likely to arise in in the litigation (CPR 19.10 and PD 19B para. 3.2) – should be identified by those. As I explain below, the suggested GLO issues have evolved during and following the hearing, no doubt in part because of my question about specificity.

My question about the degree of specificity required in the identification of GLO issues was prompted not only by the Defendant’s criticism of the vagueness of the Claimants’ suggested GLO issues but also by reference to the examples of “Defining Issues” published on the GLO Register (on which the subject matter and party information under existing GLO’s are recorded) and upon which the Claimants relied in submitting that, at this early stage, the “GLO issues” can be defined at a higher level of generality than would be appropriate when settling the kind of list of issues which is commonplace in commercial litigation. The Defining Issues on the GLO Register are indeed cast in very general terms and, so it seemed to me in many instances, terms that would embrace issues of fact or quantum peculiar to individual claimants. Therefore, to the extent that claimant-specific issues were or might well be included within their general scope they did not, to my mind, obviously qualify as “GLO issues” (as defined in CPR 19.10) no matter how valuable the identifying hallmarks and width of them might be for the purposes of advertising the particular GLO to any prospective claimants consulting the Register.

The provisions of CPR 19.11(2)(b) says the GLO issues must be identified in the GLO, once made, even though they may later be varied (CPR 19.13(d)). The Claimants rely upon the decision of Mann J in Tew & Tew and Others v BOS (Shared Application Mortgages No. 1) and Others [2010] EWHC 203 (Ch) in support of their submission that, at the outset of GLO litigation, the GLO issues can be defined at a fairly high level and thereafter refined, as the litigation progresses, for the purposes of identifying particular issues and possibly test cases or lead cases to take those issues forward. Tew was a Chancery Division case where the Chief Master had made a GLO in litigation over “shared appreciation mortgages” (the order having been made in the 100 or so actions which had been commenced with the prospect of that number perhaps tripling) and one of the defendant banks appealed against it. At the appeal before Mann J, therefore, there already existed the platform of an existing GLO but the grounds of the bank’s challenge to it resonate with those relied upon by the Defendant in this case. The appellant bank contended (in the context of relevant legislative provisions which hinged upon the alleged unfairness of the mortgage contract which in turn required consideration of all the circumstances attending to the conclusion of it) that a GLO was inappropriate when, and here I summarise, so much would still remain to be determined in the overall litigation by reference to the individual circumstances of each mortgagor. The bank’s position was that the litigation should proceed instead through test cases on the common issue arising under the legislation, with the doctrine of precedent operating to bind others on that aspect.

Amongst other paragraphs, including paragraphs 33 to 37 where one sees the judge’s reasoning in support of maintaining a GLO by reference to common or related issues to be further identified with less complexity, Mr Virgo drew my attention to paragraph 16 of the judgment in Tew in response to my question about specificity. There Mann J said:

“In deciding the terms of the GLO it is important not to confuse the GLO issues with the formulation of the issues which will ultimately have to be determined in order to decide the litigation. I say that because it seemed to me that from time to time the claimant and possibly others, confused those two concepts. GLO issues define common elements in the litigation by reference to the scope of the litigation in a number of ways – the trial of preliminary issues, the trial of test cases, the trial of lead cases, and so on. At that stage, it might make the sort of orders proposed by the formulation in Appendix 2 (though hopefully without the complexity)”

This observation by Mann J does appear to be reflected in the type of generic statements or questions which appear under the rubric of “Defining Issues” which appear in the publication of other GLO’s in the GLO Register. However, it seems to be reasonably plain to me that the high level nature of those defining features, in any one claim, is such that they are most probably not intended to serve as the list of issues (i.e. “GLO issues” as that term is defined in CPR 19.10) that will fall to be determined so as to bind the group in that claim. It seems to me that the thrust of the quoted passage is clearly to the effect that if the common “elements” of the litigation can be satisfactorily identified for the purposes of making a GLO then the “GLO issues” (properly so labelled because they are so defined) may, once the order has been made, evolve and be refined before the claim, or test cases within it, come to be tried.

As begins to appear from the quoted passage, the problem in Tew was (in the judge’s view) the opposite of what the Defendant contends in the present case: the drafting of the GLO issues was too complex (and Mann J also had concerns about how the claimants’ formulation and subsequent re-formulation of them masked an assumption that they would also effectively operate as a platform for disposing of genuine claimant-specific issues which ought properly to be decided on their own merits). Mann J was therefore considering the position where a GLO had been made and, in the light of the defendant bank’s challenge to it, the focus of his judgment was upon what I might describe as the “over-engineering” of the GLO issues and a concern that they were being proposed with a view to a de facto disposal of other genuine, non-GLO issues. In the present litigation, by contrast, no GLO has been directed (or received the necessary initial commendation from the court) and the Defendant’s opposition to one being made is that the suggested GLO issues are too vague and (see next) if ordered will decide too little in the grand scheme of the litigation, rather than too much.

My linked question about the degree of conclusiveness to be provided through a determination of the GLO issues did not reflect any assumption that a case can only qualify for a GLO if the answers to the GLO issues will determine all the issues in the claims, including claimant-specific ones. I recognise that the type of issues which serve as an appropriate prop for a GLO – perhaps taking the group claimants or the defendant only so far in the litigation but not necessarily all the way to ultimate success - is something quite different from the “same interest” which might justify the court making a representation order under CPR 19.6. The decision in Tew itself highlights the point that there are likely to be individual circumstances which fall to be tried separately and, to the extent that they are deserving of a judicial decision, cannot be obliterated by the common or related issues. But my question was directed to eliciting the kind of “balance” that might be required between the suggested GLO issues proper and the claimant-specific ones, at least in a case such as this, if the former are to hold sway in the judge’s mind for the purpose of supporting the making of a GLO. Expressing the point quite loosely, one would have thought that the greater the preponderance of common or related issues over claimant-specific ones, the greater the chance of a GLO being made; if only because of the greater likelihood of a significant saving of court time and cost if more decisions can be made at the group level which will bind claimants across the board. Conversely, it seems to me that there will be cases where an initial attraction to a GLO, created by the presence of numerous litigants, may quickly be dispelled by the realisation that the sum of the separate parts (the individual circumstances pertaining to each litigant) far exceeds, in terms of demand upon litigation resources, the value of a decision on the points which unite them. In this case, and reading from its Skeleton Argument, “the Defendant’s fundamental objection to a GLO for claims based upon the MPOC is that there are unlikely to be sufficiently common issues of fact or law for the purposes of CPR 19.10”.

In the context of this balancing exercise, Mr Kirk did not seek to contest the point that the Claims of the 77 Claimants did raise some common or related issues. Instead, I would summarise his contention as being that the weight of them, as against claimant-specific issues which would still fall to be decided, was not sufficient to justify a GLO. Of course, “preponderance” and “weight” are potentially dangerous concepts to adopt in this context: a couple of common issues, defined relatively succinctly amongst a mass (perhaps morass) of others which need to be decided in order to conclude the litigation, may save many weeks of court time if they can be tried for the benefit of all. Conversely, an impressively long list of suggested GLO issues might in another case still leave too much to be contested between the defendant and particular claimants to justify making a GLO.

As I have mentioned above, during the course of his oral submissions Mr Virgo identified ten issues of law or fact which he submitted could serve as GLO issues. I will not dwell upon those because he has reformulated the candidate issues in his written responsive submissions. I did observe that at least three of them might be reduced to one single issue along the lines of: “Did the Relevant Introducer carry on the regulated activity of arranging investments within the meaning of article 25 of the RAO or was any such activity excepted from the scope of article 25 by reason of the provisions of either article 29 or 33 of the RAO (including consideration of any “exception to the exception” within them)?”.

Mr Kirk had responded to those suggested ten issues by saying that only three of them could properly be categorised as worthy GLO issues and two of those (the consideration of articles 29 and 33 were pretty peripheral to the main issues in the proceedings). The Defendant’s position, not having had much opportunity to consider Mr Virgo’s ten expounded on the day, was that only the first was a worthy GLO issue: “Does the “order” referred to in COBS 11.2.19R relate to the SIPP or the underlying investment?”

I have not dwelt upon each of the ten issues identified by the Claimants at the hearing because their written submissions filed since the hearing now propose the following 8 as alternative GLO issues. These are:

I am conscious that the Defendant has had no opportunity to respond to this second re-formulation of the proposed GLO issues. However, whilst that is not ideal, I do bear in mind that the Defendant has had the opportunity to make its over-arching point that, no matter how the Claimants might identify those issues which are recognised to be common to the claims, the fact remains that individual liability and quantum have to be proved in each case. In this regard, the Defendant refers to the note at para. 19.10.1 of the 2017 White Book to the effect that it is unlikely a GLO will be appropriate where there are many claims which are similar, and even against the same defendant arising out of the same circumstances, but where each of them is in law a separate claim in which individual liability and quantum will have to be proved and there is no common issue which will be binding on all. The Defendant’s submission does not go so far as to suggest that there are no common issues amongst the present claims but is instead that, to the extent that there are some common issues in the litigation, these would be better dealt with by way of lead claimants representing a cross-section of Relevant Introducers and underlying investments. A draft Order directed to achieving that objective is attached to the Defendant’s Skeleton Argument. The Defendant has also expressed doubt over the likely number of further claimants contemplated by the Claimants’ Skeleton Argument (which suggests that over a 6 year period as many as 6,000 investors may have been introduced to the Defendant’s SIPPs through Relevant Introducers) though I do now have the letter from High Street Solicitors and must also recognise that publication of any GLO may well produce more claimants.

I am also conscious that, of the eight reformulated issues, Nos. 1, 2(a), 3, 5, 6 and 7 reflect, now through the use of more refined wording, what I had identified at a canter during the course of Mr Kirk’s submissions as potentially worthy common issues for a GLO. I had also contemplated that No 5 might (despite the authority relied upon the Claimants) also include the question as to whether or not joint tortious liability would flow from any such joint enterprise and also that the subject of No. 6 might generate a separate contractual estoppel issue (given the Defendant’s reliance upon the terms of the Relevant Introducers’ Non-regulated Introducer Agreement and/or Asset Purchase Form (Master Defence para. 13) and/or the Defendant’s own written warnings and cautions (Master Defence paras. 15 and 21)).

When considering the Defendant’s lack of opportunity to respond to the latest re-formulation I am also mindful of the point made in Tew about the likely evolution of any GLO issues, after the making of the GLO, and their variation is expressly contemplated by CPR 19.13(a). To the extent it is an iterative process then fairness obviously requires that the Defendant should participate in it before any of the issues become settled. On this point, Mr Virgo’s responsive written submissions criticise the Defendant for not in the past engaging with the identification of the potential issues even though it accepts that some exist. In my judgment that expects too much from a party who is not joining in or supporting the application for a GLO. I can see that a party in that position would have grounds for concern that by positively engaging with the drafting process, even expressly without prejudice to its opposition to a GLO, it risks enhancing the judge’s appetite for making one. It is for the applicant to establish the case for a GLO at the hearing of the application, with or without support from the other parties. For that reason, as I indicated to the parties at the hearing, it did not seem to me to be of any real significance that the parties’ own appetites for a GLO had arguably grown (in the case of the Claimants) or diminished (in the case of the Defendant) since the Defendant’s solicitors first mentioned the possibility of one in March 2017, and neither counsel sought to press the point in their oral submissions.

Even though the Defendant has not had the opportunity to comment on the Claimants’ further reformulation of the issues, I am satisfied that it has through counsel’s written and oral submissions had adequate opportunity to address me on the anterior question of principle – the desirability or otherwise of making a GLO – which falls to be addressed before the process of settling GLO issues is firmly embarked upon. The Defendant has had the opportunity to address me upon what I have loosely described as the “conclusiveness” or “preponderance” question and has made the point that, whatever the terms in which they might be identified, the common or related issues do not justify the making of a GLO.

Having considered the parties’ rival submissions on that aspect, in my judgment the nature of the issues raised by the existing claims and the real prospect of the claimant numbers being further significantly enhanced are such as to support the conclusion that a GLO should be made. I am therefore minded to make the GLO and propose to seek the President’s Consent to one being made.

Any application for the President’s consent to a GLO requires me to state in writing why I consider a GLO to be desirable and (for the purposes of that requirement of the Practice Direction and in the context of this judgment on both applications) I would identify the following as my reasons, to be read against the background set out above:

The making of a GLO is a clear illustration of active case management. In my judgment, most of the above reasons chime with certain key elements of the overriding objective – notably the saving of expense and the concept of proportionality to the amounts at stake, the financial position of individual investors and the issues involved - and with the discharge of the court’s duty to actively manage the claims in furtherance of the objective.

On the assumption that I might favour the making of a GLO, the parties addressed me on one particular aspect of the Claimants’ draft GLO which relates to the manner in which it should be publicised, if made. The draft not only contains a provision which reflects the terms of CPR PD 19B para. 11 (for notifying the Senior Master and the Law Society) and that the Claimants’ solicitors shall advertise its existence on their websites and the Law Society Gazette, by a notice in an approved form, but also that the Defendant will also be required to advertise it within 21 days of the Order by “sending a notice [in that form] to each individual that has held or currently holds a SIPP that was or is currently administered by the Defendant.” For the sake of clarity, I should say that the Claimants’ Skeleton Argument proposed a refinement of that wording so that it refers to a single-asset SIPP and the letter is only sent to those investors concerned with one of the specified single assets in question.

CPR 19.11(3)(c) recognises that a GLO may but need not contain directions for it to be publicised. Although the White Book commentary on that provision observes that there is no guidance upon the form that such publicity might take, or as to the costs burden in relation to it, the proposal that the GLO should be advertised on the Claimants’ solicitors’ websites is in my judgment sensible and appropriate. However, the proposal that the Defendant should write to its own clients in terms that invite further claims against it is, unsurprisingly, one to which the Defendant takes strong objection.

That is a proposal which the Claimants make having clearly in mind the likely cost of any newspaper or other hard copy advertisement to be funded (at least initially) by them. Mr Virgo mentioned that his instructing solicitors’ experience in another GLO context was that such an exercise might cost in the region of £100,000 or more. He also observed that the Claimants had proposed this form of client contact by the Defendant with a view to lessening the risk of reputational harm to the Defendant from that likely to be created by an advert in a national newspaper. But this suggested hand of beneficence is not one that the Defendant wishes to shake and its position is that a requirement for individual client notification by it would have a devastating effect on its business, and perhaps for other companies within its group, and that significant reputational damage would probably be suffered irrespective of the final outcome on the claims. Further, Mr Kirk submits that if such a draconian step was thought to be appropriate then one would expect to see it expressly contemplated by the CPR.

I am not persuaded that it would be right to order the Defendant to contact its clients as the Claimants propose. The Claimants point to the power of the Financial Conduct Authority, in an appropriate case, to require a firm suspected of mis-selling to engage in a customer contact exercise. However, that is the case of the regulator exercising its powers in the pursuit of the broad regulatory objectives of FSMA and doing so within the procedure for issuing Final Notices. Those objectives do of course involve the protection of consumers (of which their access to the courts to redress any wrongdoing may be said to be a part) but it is clear from the provisions of the FCA’s Enforcement Guide to which my attention has been drawn (EG 6.1.1 and 10.2.2(4)) that: (1) the FCA itself will only publicise the fact of a pending investigation, prior to making any findings or conclusions, in “exceptional circumstances”; and (2) requiring a firm to write to clients is identified as a potentially more effective way of remedying a contravention than an application by the FCA for injunctive relief under section 380 of FSMA. I accept the submissions of Mr Kirk to the effect that these provisions militate against the court in this case requiring a defendant to contact further potential claimants when, as the debate over the scope of the GLO issues and claimant-specific issues shows, the present ones are, procedurally speaking, a long way away from establishing that the Defendant has fallen foul of the relevant regulatory provisions or standards. On that point, I also suggested to Mr Virgo that this particular form of proposed publicity would seem to be at odds with the general recognition, in the limitation context, of the point that a defendant is entitled to “let sleeping dogs lie”. The form of notice from the Defendant to further potential claimants would, by contrast, invite them to wake from their slumbers and apply to be joined to the register before a particular cut-off date. In my judgment, it is one thing for the court to make directions which enable the Claimants’ legal team to stir further interest in the claim but quite another to require the Defendant to do so against its own interests as a litigant over disputed claims.

In his responsive written submissions Mr Virgo has indicated, in the light of the Defendant’s rejection of the mailshot proposal, that it will be necessary to advertise the GLO not only on the Claimants’ solicitors’ websites and in the Law Society Gazette but also “in national and regional papers as agreed between the parties or otherwise determined by the court, the costs of which shall follow the event”. In my judgment, this is an appropriate provision to include in the GLO.

In relation to publicity, I should note that since the hearing I have seen an exchange of correspondence between Wixted & Co Limited and Spearing Waite as to whether or not the former (perhaps under a different trading style) has already been “aggressively advertising for claimants on the internet”, as the Defendant submitted during the course of the hearing. The Claimants dispute that this is the case, saying that a Google search of “Berkeley Burke” will reveal the presence of a claims management company but not that of the solicitors, though it is accepted by both of the Claimants’ solicitors that they have from time to time paid for Google “pay per click” adverts. I am not expected to make any decision on this satellite dispute but the existence of it does, in my view, reinforce the point that the sooner the provisions for publicising the GLO (if made) are settled, the better for all concerned.

Lastly in relation to the GLO Application, the Claimants urge, if a GLO is made, that I should be the managing judge. That is a matter for the President and no doubt one to be considered in the light of any prospect that may remain of the case might being transferred away from Bristol after my own decision on the Transfer Application, which I now address.

I have already explained that the Transfer Application was issued on 1 November 2017 seeking a transfer “to the Royal Courts of Justice pursuant to CPR 30.2(4)(b) on the basis that the matter can be most fairly and expeditiously dealt with in London.” Neither the Application Notice nor the supporting evidence was specific as to whether the proposed transfer should be to the Commercial Court or to the London Circuit Commercial Court (though the application was sought to be made returnable in the Commercial Court before a Commercial Court judge) but the Defendant’s Skeleton Argument contended that either court was a more appropriate venue than Bristol for “a nationwide claim” such as this.

The Defendant originally made the Transfer Application to the Commercial Court in the RCJ saying it had done so in accordance with the provisions of paragraph 3.17 of the (former) Mercantile Court Guide: see now the equivalent provision in the Circuit Commercial Court Guide. By so doing the Defendant was also observing the language of PD 58 para. 4.4 (see also para. B13.1 of the Commercial Court Guide).

With the provisions relating to transfer in the Part 58 Practice Direction no doubt well in mind, the Application Notice stated that my views on the proposed transfer had been sought in correspondence by letters dated 20 and 31 October 2017 but “to date no response had been received”. At the outset of the hearing I explained that the basic reason for the lack of any response was that I had not seen the correspondence mentioned until the day before the hearing. This may in part have been because the two letters mentioned were in fact addressed to the “Administrative Court” in Bristol but I suspect that it was also because the GLO Application (to which the Transfer Application made reference) was to be heard by Dingemans J until he referred the matter to me on 10 November 2017. It is probably that second reason which accounted for the fact that I also did not read until the day before the hearing a letter dated 26 October 2017 from the Claimants’ solicitors (Wixted & Co.) urging me not to express an opinion until the Claimants had taken the opportunity to file evidence in support of the claims remaining in the Bristol District Registry. As I explained to the parties, my failure to express a view on the proposed transfer did not therefore reflect any application of thought to either request, as opposed to my unawareness that they had been made.

In the event, the Defendant’s Skeleton informed me of its understanding that:

“…. the Transfer Application was subsequently returned to the Bristol District Registry by a court officer at the RCJ. Accordingly, insofar as this court is satisfied it has jurisdiction to make such an order, the Defendant is content to proceed accordingly.”

On the Transfer Application, I did raise with Mr Virgo and Mr Samuels (for the Defendant on this aspect) my impression, from reading the competing evidence and skeleton arguments, that the focus of the argument was upon which of Bristol and London offered the more convenient venue for the hearings in the matter up to and including the trial. The evidence has explored in some detail the likely travel times to and hotel costs at Bristol and London respectively and, in support of its application, the Defendant’s Skeleton Argument focused upon the factor of fairness and convenience in relation to the venue for hearings and trial amongst the others enumerated within CPR 30.3. I did so because I was conscious that there are some “Bristol cases” that come to be tried in London when that suits the convenience of the parties; and the thought had occurred to me that a decision on the question of hearing venue (and especially trial venue) might be premature when the class of claimants might not even be closed. I do not know, for example, how the geographical distribution of High Street Solicitors’ hoped-for clients, by reference to their places of residence, might look if revealed by pins on a map nor what the wishes of that contemplated new class of claimants might be in relation to trial venue. For example, one of the newest claimants mentioned in paragraph 10 above lives in Oldham.

Mr Virgo had placed much reliance upon then Lord Justice Briggs’ Final Report (July 2016) on the “Civil Courts Structure Review” in favour of keeping the case in Bristol, in particular the section of the report reinforcing the point that no case should be too big to be resolved in the regions (and that in some cases this regional capacity might involve a Circuit Commercial Court claim being tried by a Commercial Court judge in the way expressly envisaged by paragraph 2.4(2) of the draft Practice Direction mentioned next). In that context, I drew counsel’s attention to the Chancellor’s Advisory Note on the Business & Property Courts dated 13 October 2017 and accompanying draft Practice Direction which addressed the question of transfer between the BP&C district registries and London, though the draft nature of the second document meant it was safer to approach it in anticipation of further rule-making rather than reading it as confirmation of changes already made (as it happens, the Practice Direction has since been approved by the Lord Chancellor, on 22 November 2017). I did so because the draft Practice Direction contemplated that, on any application for a transfer to or from a B&PC District Registry, there should be added to the existing criteria in CPR 30.3 regard to other factors including, for present purposes: (1) whether there are significant links between the claim and the circuit in question; (2) whether court resources, deployment constraints, or fairness require that the hearings (including the trial) be held in another court than the one in which it was issued; (3) the wishes of the parties, which bear special weight in the decision but which may not be determinative; and (4) the availability of a judge specialising in the type of claim in question to sit in the court to which the claim is being transferred. Paragraphs 26 to 28 of the Chancellor’s Advisory Note also address these further transfer criteria.

Mr Virgo did not suggest that there are any significant links between the Claims and Bristol though he did make the point that, having been issued in the Bristol Mercantile Court, they have been case managed in this court (with its new designation as the Circuit Commercial Court) and it was only in September of this year that the Defendant has thought to apply for a transfer to London. He did, however, press the point that all 77 claimants were in favour of the case remaining in the Bristol Circuit Commercial Court. At this point in Mr Virgo’s submissions I did observe that Mr Justice Coulson had previously remarked that a claimant’s wishes on any application for transfer to a particular court should be given particular weight - the decision I had in mind but which I could not then recall the name of was Tai Ping Carpets UK Ltd v Arora Heathrow T5 Ltd [2009] EWHC 2305 (TCC) at [15] - though I also immediately remarked that the making of a GLO, with the several liability only for common costs that is presumed under CPR 46.6(3), perhaps significantly diluted that part of the judge’s reasoning in Tai Ping which relied upon the point that it is the claimant who has chosen to create the risk in litigation costs. Mr Virgo also submitted that there was ample specialism in this court, between the B&PC specialist judges, to deal with a case of this kind.

During the course of Mr Samuels’ (curtailed) oral submissions I suggested that these Claims, even on the Claimants’ contemplated numbers within the eventual group, were unlikely to bring the total value to a point where the litigation was obviously worthy of the Commercial Court. I also suggested that although the issues raised by litigation could not be described as straightforward neither could they be said to be so complex as to be categorised as paradigm Commercial Court business. The Defendant’s Skeleton Argument had itself volunteered the observation that if there had been a proper Bristol connection from the parties’ perspective (when there was none and the case might just as well have been issued in the Manchester or Birmingham District Registries) then “it would be wrong to attempt to transfer to the RCJ merely because of apparent value or complexity”. It therefore appeared to me that this might well be a situation where the Claims might end up being transferred from one Circuit Commercial Court (Bristol) to another (London). That is a step which is expressly contemplated by CPR 59.3 but, in this case at least, the prospect of a transfer from one Circuit Commercial Court to another does bring one back to the thought that the application may be as much about the convenience of trial venue as anything else. In his subsequent written submissions, however, Mr Samuels has recognised that the litigation may be at the lower end of the scale of Commercial Court business but, he submits, that court is better resourced for the purposes of managing and hearing litigation of this scale. This links in with the Defendant’s evidence and Mr Kirk’s earlier submissions referring to the claims having the potential to build up to a 6 week trial (though I suspect that kind of block trial time estimate may well presume less active case management than one might expect under a GLO and the trial of GLO issues).

Although the Defendant’s Skeleton Argument placed considerable emphasis upon the RCJ being the more appropriate venue for the hearing of the Claims, and concluded by leaving it open as to whether this should mean “the Commercial or Mercantile Court in London”, Mr Samuels’ subsequent written submissions did therefore pin the Defendant’s colours to the Commercial Court as the transferee court. In support of the case for transfer Mr Samuels not only emphasised factor “(b)” in CPR 30.3 – consideration of fairness and convenience in relation to trial and pre-trial hearing venues – but also factors “(a)”, “(d)” and “(e)” so far as the value, complexity and importance of the Claims are concerned. He submitted that these other factors should be considered together and that they combine to support the conclusion that the Claims will require considerable court resources to be devoted to case management and interim hearings and that the Rolls Building in London has greater capacity to provide these resources. In relation to the combined value of the claims, Mr Samuels again recognised that, standing alone, this factor would not justify a transfer away from this court (when the approximate value of the present claims is about £4m) but, to the extent the court places any reliance upon the Claimants’ reference to the class of potential claimants being as many as 9000 in number, the court should be alive to the prospect that value alone might make the matter worthy business for the Commercial Court.

By a submission which has, I think, acquired greater prominence for the Defendant during the course of argument Mr Samuels says that the present case is far away from being a “vanilla” mis-selling claim which involves only two or three parties and which can proceed to trial by a more conventional route. The submission is that the Claims carry with them considerable legal and procedural complexity.

Mr Samuels’ written submissions also drew my attention to the terms of a letter dated 2 November 2017 from the Financial Conduct Authority to his instructing solicitors. This letter makes three points that are potentially relevant to the Transfer Application. The first is that the FCA understands this litigation to raise a number of issues of interest and importance to the FCA, such that the FCA has a clear interest in the proceedings. The second is to point out that, under the relevant Practice Direction (CPR PD 8A) proceedings for damages under section 138D of FSMA (which as I have explained is part of the Claimants’ causes of action) should be assigned to the Chancery Division. The third is that the FCA asks the Defendant’s lawyers to liaise with its own in relation to such matters as the lodging of skeleton arguments and the making of representations and that “pending sight of all the papers in the proceedings, we would not envisage requesting any more than two to two and half hours for our oral representations at trial.”

Apart from reiterating the contention that this court has more than adequate resources and expertise to host these Claims, Mr Virgo’s responsive written submissions on transfer addressed only the FCA letter. He submits that the terms of the letter do not require the proceedings to be transferred to London, or bolster the case for a transfer, and that my own “cross-ticketed” ability to sit in both Circuit Commercial and Chancery Court matters is a further reason for them to remain in Bristol. This echoes the Claimants’ submission as to the identity of the managing judge under any GLO. I note that, to the extent the FCA’s point might justify a transfer between specialist lists, para. 3.16 of the Circuit Commercial Court Guide expressly recognises that matters may be simplified and expedited through a particular judge’s ability to hear cases in both lists; and, further, that the White Book commentary upon the Commercial Court Guide (2017, 2^nd Supp. para. 2A-9.1) also refers to the decision of Leggatt J in Southern Rock Insurance Co Ltd v Brightside Group Ltd [2015] EWHC 757 (Comm) as an example of the kind of case where the crossover of business between the Commercial Court and Chancery Division is such that many cases may very properly and equally well be tried in either court. Leggatt J (as he then was) was there observing that it was unlikely that such a case would be transferred out of the court in which it had in fact been brought.

I have given anxious consideration to the question whether this litigation will be more conveniently and fairly managed and later tried in London (specifically the Commercial Court, on the balance of the Defendant’s submissions, as opposed to the London Circuit Commercial Court). It seems to me that, in order to be persuaded of that, the other criteria in CPR 30.3(2) upon which the Defendant relies alongside considerations of convenience and fairness in relation to venue – namely, the complexity of the facts and legal issues and the public importance of the outcome – ought to provide at least one fairly clear pointer away from this court. The single umbrella that has been created by the B&PC courts, and to which the Chancellor’s Advisory Note refers, is such that, in my judgment, I would need to identify particular reasons why the coverage provided by the specialist business of the Bristol District Registry might be considered to be deficient for the purposes of case managing and trying these claims.

The ethos of the new B&PC structure is that the specialist civil jurisdictions will exist in the main regional centres for the determination of disputes (falling within the appropriate list or sub-list) across England and Wales. At the date of the hearing the non-exhaustive criteria to be considered on any transfer application remained those set out in CPR 30.3(2) though the parties had the opportunity to address me on such additional criteria for transfer from a Business and Property Court as were then in prospect. But it is important to note that these are criteria which are relevant to the exercise of the court’s discretion to order a transfer. A core tenet of the B&PC structure is one of due recognition of specialism and expertise in the regions (as Chapter 8 of the Briggs Report shows) as now reflected in the specialist courts and lists which they accommodate. If this particular court is to exercise its discretion by transferring the case away from itself then, in my judgment, it needs to be comfortable that it is not offending the new ethos by doing so. There doubtless will be cases where the magnitude of the case, either in terms of its value or the procedural complexity which it presents or perhaps both, is such that a transfer to London is clearly justified, just as there will be other cases where no transfer is required but the value is such that a regional trial before a High Court judge will be appropriate. I believe the additional criteria to be considered on any transfer to and from a particular B&PC court (referring to court resources, deployment constraints and the availability/unavailability of specialist judges) clearly anticipate the first type of case.

The issue for me to decide is whether or not the nature and scale of the existing and anticipated claims (and, perhaps, their likely combined value too) provide grounds for the exercise of the discretion in the context of the new civil courts structure. Recognising the need to be careful that the view of the incumbent court on this issue of transfer away from it is not obscured by some mote or larger impediment in the judicial eye, I cannot presently see any persuasive reasons. To the extent that there is more to the grounds for the application than consideration of fairness and convenience in relation to the venue of hearings, these claims do not in my judgment raise particularly complex issues judged either by the standards of the Commercial Court or those of a Circuit Commercial Court. The terms of the Defendant’s Skeleton Argument, focusing more upon the demand upon the court’s resources than points of value or complexity, reinforce this conclusion. I recognise that both the determination of the substantive claims and their pre-trial management might prove to be quite challenging and the first such challenge has perhaps arisen in requiring me to offer a view about the appropriateness of a GLO. But the exercise in which I engaged at the hearing in seeking to identify potential GLO issues (and, indeed, a quick canter through those which would clearly remain as claimant-specific issues) indicates to me that there is nothing in these proceedings which points to the need for a transfer away from this particular Business and Property Court. I do not regard this piece of litigation as being beyond the resources of this court.

In my judgment, therefore, there is nothing in the detail of this particular piece of financial services litigation or in the existing or anticipated weight of claimant numbers (whether or not a GLO is duly made and publicised) which supports the conclusion that, nevertheless, London should be regarded as having a particular gravitational pull upon these parties in their commercial and business dispute.

I therefore decline to make an Order transferring the Claims to the Royal Courts of Justice, as requested. However, expressing myself in those terms assumes that I do have jurisdiction to decide the Transfer Application in its entirety which (see paragraph 46 above) is the question raised by the Defendant. I have already noted that CPR 59.3 enables me to transfer a claim to the London Circuit Commercial Court so that I am able to dismiss the Transfer Application so far as that proposed relief is concerned. As for the proposed transfer to the Commercial Court, that same provision when read alongside both the Commercial Court Guide (para. B13.1 and the Guidance at Appendix 14) and the Circuit Commercial Court Guide (para. 3.17 referring to the same Guidance) shows that the decision whether or not to transfer these claims to the Commercial Court is that of the Judge in charge of the Commercial Court. I can only express a view on that proposed transfer matter, which is a matter for Mr Justice Blair, and my view is that a transfer is not appropriate. The application of hindsight suggests to me that, given the nature of the argument on the Transfer Application and its linkage with the GLO Application and the nature and range of the discrete argument on that, it is just as well that I remained ignorant of the request for an expression of my view until shortly before the parties’ submissions on the point.

As I have already observed, the question of whether particular hearings ought to take place elsewhere than Bristol (assuming there is a court available elsewhere) is one that in principle, and as appropriate, might be raised on future occasions even though the presumption must be that the hearings in this Bristol case will take place in the Bristol Civil & Family Justice Centre.

For the reasons set out above, my decision on the two applications is as follows: