Hutson & Ors v Tata Steel UK Ltd

The claimants in this action contend that, during the course of their employment in the steel industry, they were exposed to harmful fumes and dust and have suffered from one or more of a number of industrial diseases as a result. An application was made on their behalf to bring these claims within the procedural structure of a Group Litigation Order (“GLO”) pursuant to CPR Part 19. This application was granted and subsequently approved by the President of the Queen’s Bench Division on 20^th January 2017. The lead solicitors were identified in the GLO to be Irwin Mitchell LLP (“IM”) and Hugh James (“HJ”) together with “such other firm(s) as the Court shall approve”.

The issues arising in this litigation are likely to prove to be very similar to those relevant to claims which have already been brought within the ambit of The British Coal Coke Oven Workers Litigation GLO which is procedurally more advanced and in respect of which I am also the managing judge.

The British Steel claims now come before me for what is likely to be the first of a number of Case Management Conferences. With one exception, all of the proposed directions have proved to have been gratifyingly uncontroversial and I have been content to make orders accordingly. The single unresolved issue has arisen from an application made on behalf of Collins Solicitors of 20 Station Road, Watford (“Collins”) to be added as a lead firm. This application has been strongly resisted by the existing lead solicitors.

Collins’ application was made as long ago as 22 November 2016. A witness statement from the eponymous Mr Collins was served in support. To reflect the fact that this gives rise to a case management issue which involves the exercise of the court’s broad discretion, I will deal only with those points which are central to my decision. Where I have not articulated my conclusions in respect of any given point taken by either side it is because I have considered that its resolution would not impact upon my overall conclusion.

On the making of the GLO, the Collins application was adjourned to be heard at this, the first, CMC in the procedural progress of the litigation.

The responsibilities of the lead solicitors are defined in paragraph 4.2 of the GLO in familiar terms. They are to be “jointly responsible for the management and co-ordination of the Claimants’ actions. They shall have conduct of all investigations, applications and proceedings in respect of the common issues and preparation for and trial of any test cases relating to the common issues subsequently ordered by the court. Irwin Mitchell shall be responsible for the group register.”

CPR 19.13 provides:

“Case management

Directions given by the management court may include directions—

…(c) appointing the solicitor of one or more parties to be the lead solicitor for the claimants or defendants…”

The notes in the White Book provide at para. 19.13.1:

“Subsection (c): the appointment of lead solicitors is invariably necessary: the rule is intended to be a reserve power as the court will only rarely become involved in appointment of solicitors.”

Practice Direction 19B para. 2.2 provides:

“It will often be convenient for the claimants’ solicitors to form a Solicitors’ Group and to choose one of their number to take the lead in applying for the GLO and in litigating the GLO issues. The lead solicitor’s role and relationship with the other members of the Solicitors’ Group should be carefully defined in writing and will be subject to any directions given by the court under CPR 19.13(c).”

I have been unable, perhaps unsurprisingly, to find any authority directly concerning disputes over the selection and appointment of lead solicitors and will therefore analyse the competing arguments when measured against the demands of the overriding objective, the scope of which is sufficiently familiar to obviate the need to set it out in this judgment.

In most cases, I would expect that any firm of solicitors wishing to be joined as additional lead solicitors against the reasoned opposition of existing lead solicitors would bear the burden of persuasion to make out the case that their inclusion would further the overriding objective. Any such firm would, if successful, inevitably be undertaking responsibilities beyond those which would otherwise be placed on their shoulders in the capacity of representing only the interests of their individual clients. Even with the most conscientious re-distribution of duties between an expanded cohort of lead solicitors, there is likely in most cases to be an increase in the aggregate claimants’ costs bill. This may not present much of a disincentive for any firm making such an application but enhancing the costs revenue of solicitors is not, of itself, a free-standing component of the overriding objective.

In addition to the potential for increased costs, the duplication of effort is also likely to increase the risk of delays, misunderstandings and disagreements relating to the management of the claims. Based on the history of Collins’ involvement to date, I am satisfied that such risks are not merely theoretical.

For example, it so happens that Collins have been applying a significantly different and less stringent test of eligibility than IM and HJ in respect of those whom they consider to have sufficient prospects of success to be entered on the register. In his witness statement of 12 October 2017, Mr Collins has sought to contend that “this and a number of directly related issues should be disposed of at an adjourned hearing before a separate High Court Judge with the Defendants being excluded.”

Furthermore, Collins have instructed two experts to provide reports or commentaries on the expert evidence already collated by the existing lead solicitors the substance of which they claim should be relied upon by the claimants. IM and HJ are implacably opposed to the suggestion that the evidence of one of these experts should be deployed and there is thus a serious and ongoing disagreement as to that expert’s future role, if any.

The disagreement between the respective firms has already begun to deteriorate from a mere divergence of objective professional opinion to the stage of personal recrimination. Mr Collins has recently cast aspersions on the sincerity of Mr Maddocks of IM in his witness statement of 17 October 2017 in which he asserts that what Mr Maddocks said in a an earlier witness statement with regard to the history of communications between the parties was not merely “wrong” and “incorrect” but “at best disingenuous”.

It would be neither necessary nor appropriate for this court to adjudicate on the substantive merits of these disputes. There is insufficient material upon which to embark on such an exercise. The important point is that the GLO framework requires firm and consistent organisation. Internal clashes between lead solicitors on significant matters of case management and control and flavoured by personal animosity are antipathetic to the orderly progress of the litigation as a whole. Judging by the areas of dispute so emphatically ventilated by the existing lead solicitors and Collins before me, the granting of this application would be more likely to produce a long-running forensic Punch and Judy show than a focussed and coherent pathway to a just resolution of the claims to be achieved at proportionate cost.

I also take into account the long and successful history of IM and HJ working together efficiently in the very similar British Coal Coke Oven Workers Litigation. Inevitably, they have not succeeded in every application they have made in the course of that GLO but at least they have never fallen out about what applications to make in the first place.

Mr Collins seeks to counter this point in his witness statement of 22 November 2016 in which he refers to his “firm’s not inconsiderable experience in the management of Group Litigation having for example been Lead Solicitors in the Corby Group Litigation the trial of which occupied the TCC for some twelve weeks...” Although the Corby case was not subjected to any degree of scrutiny by the other parties before me, I considered, out of fairness to Mr Collins, that I ought at least to acquaint myself further with the part played by his firm in that litigation. In The Claimants appearing on the Register of the Corby Group Litigation v Corby District Council [2009] EWHC 2109 (TCC), Mr Justice Akenhead described the claimants in that litigation as taking “a scattergun approach” which “did not seek properly to analyse what breaches of duty occurred”. He went on to find that: “There was some time wasted at trial. This arose because the Claimants did not have sufficient witnesses available on a day-to-day basis to enable full days' hearings to take place.” As a result of these shortcomings, the court went on to reduce the claimants’ costs entitlement by 10%.

Of course, it may well be that Collins have learned valuable lessons from their earlier experience of the challenges of acting as lead solicitors in the Corby group litigation and I stress that I do not consider that the adverse comments made by Akenhead J ought materially to impact upon my decision on this application. Indeed in a later witness statement, Mr Collins has prayed in aid other cases in which his firm has been involved as lead solicitors. I pause, however, merely to note that it might be thought brave of Mr Collins to have relied in his first witness statement on the fact that the Corby trial lasted twelve weeks when the managing judge in that case had ruled that, but for shortcomings in the presentation of the claimants’ case and the organisation of their witnesses, it would have been distinctly shorter.

Collins point to the fact that, deploying their less onerous selection criteria, they have about 300 claimants eligible to join the group. It is to be observed, however, that none of them has been entered on the register and there have been no details revealed as to the actual criteria which have been applied to justify their inclusion. Of course, it would be unfair if prospective claimants with sufficiently high prospects of success were to be precluded from participation but it would be no fairer to meritorious claimants to have their cases prejudiced by the inclusion of a disproportionate number of poor claims. More is not always better.

Furthermore, the selection of lead solicitors is not an exercise in proportional representation. Having a considerable number of individual eligible claimants may well give rise to an enhanced claim to the role of lead solicitor but it is a factor which falls far short of amounting to an entitlement. In this regard, each case must be judged on its own merits.

Collins make the point that a very high proportion of their clients were working at Ravenscraig in Scotland. In contrast, all of those persons whose names are already to be found on the register worked within the jurisdiction of England and Wales. IM and HJ respond by pointing out that Collins bring with them no particular expertise on the aspects of Scottish law most likely to become relevant and which relate to, for example, issues of limitation and the assessment of damages. In contrast, IM have offices in Edinburgh and members of their team there with specialist knowledge of the relevant issues of Scottish law. They contend that, and I agree, there is no good reason why any Scottish claims should not, if it is otherwise appropriate, fall within the auspices of the existing GLO and under the management of the existing lead solicitors.

I am entirely satisfied that it would be wrong to permit Collins to be appointed as lead solicitors in this GLO. The GLO structure, combined with the involvement of the existing lead solicitors, ensures that the parties are on an equal footing. Expense will be increased rather than saved by expanding the number of lead solicitors. Matters are likely to proceed with greater expedition without impairing the demands of fairness by maintaining the status quo. An increase in the number of lead solicitors would also be likely to increase the demands on the court’s own resources.

I am of the view that the concerns raised on behalf of Collins as to the future direction of the litigation can adequately be dealt with on an issue by issue basis by the exercise of the court’s broad case management powers under CPR Part 3 and CPR Part 19.13 together with the operation of CPR Part 46.6 with respect to matters of costs.

On the issue of costs arising specifically from this CMC, I consider that the fair order is that such costs, including the costs relating to Collins’ application dated 22nd November 2016, should be costs in the case, save that the Claimants’ costs (if recovered) shall not include any costs incurred by Collins Solicitors in respect of their Application dated 22nd November 2016.

During the course of the hearing I raised the issue of whether or not those whose names have been entered on the register had issued claim forms pursuant to PD B para.6.1A. I was informed that they had not but that reliance had been placed on a deeming provision in the GLO. There the matter rested because an immediate adjudication on the issue was not necessary and the parties had not had an opportunity to consider the point. I note that, on this topic, The White Book provides at para. 19.11.1:

“An amendment to the Practice Direction (PD B para.6.1A) now makes it clear that claimants must issue a claim form (and pay the issue fee) before their claim can be entered on a group register and see the dicta of Lord Woolf in Boake Allen Ltd v Revenue and Customs Commissioners above. Given that CPR 19 r.1 provides that any number of claimants may be joined as parties to a claim, it would seem that a large number of claimants in a prospective GLO may be added into one claim and registered in respect of that claim. The purpose of the rule appears to be to ensure that no claimant can be admitted to the register unless that claimant is included in or has made their own claim.”

I invite the parties to revisit this issue so that any procedural anxieties can be resolved at the next CMC.