Claim Nos. D40BS071 and D41B5587

Neutral Citation Number [2017] EWHC 3108 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN BRISTOL

CIRCUIT COMMERCIAL COURT

Date: 7 December 2017

Before:

HIS HONOUR JUDGE RUSSEN QC

Between:

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MOHAMMED ARIF and Others

Claimants

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BERKELEY BURKE SIPP ADMINISTRATION LIMITED

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John Virgo (instructed by Wixted & Co Limited and Hugh James LLP) appeared for the

Claimants

Jonathan Kirk QC and Thomas Samuels (instructed by Spearing Waite LLP)

appeared for the Defendant

Hearing Date: 15 November 2017

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JUDGMENT Approved

His Honour Judge Russen QC

Introduction

1. 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.

2. 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.

3. 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.

4. The Applications are:

(1) an Application dated 26 September 2017 and made by the Claimants in the

largest group Claim which seeks the making of a Group Litigation Order

within the meaning of CPR 19.10 and 19.11 – “the GLO Application”; and

(2) an Application dated 1 November 2017 and made by the Defendant (in

both that largest Claim and the second largest one involving 28 claimants)

which seeks the transfer of the proceedings from the Bristol District Registry

to the Royal Courts of Justice pursuant to CPR 30.2(4)(b) – “the Transfer

Application”.

The Claims in Outline

5. 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.

6. 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:

a. a claim under section 27 of FSMA on the ground that the Relevant Introducer

in question was, despite its non-authorisation, carrying on a regulated activity

and the SIPP was an agreement made “in consequence of something said or

done” by that introducer. If those essential elements of section 27(1) are

established then the Defendant’s counterparty to the agreement (namely the

investor in the SIPP) is entitled to recover any money transferred under it and

to compensation for any loss sustained as a result of having parted with it. But

this is subject to the provisions of section 28(3) of the Act which (and again I

summarise) recognises that the court has a discretion to deprive the investor of

either result if it is “satisfied that it is just and equitable” to do so “in all the

circumstances of the case”;

b. alleged breaches of COBS Rules (i.e. Rules, identified as such in the

Financial Conduct Authority (“FCA”) Conduct of Business Sourcebook)

which, at the instance of a retail client who is a “private person”, are

actionable in damages under section 138D of FSMA. COBS 2.1.1R (the duty

to act honestly, fairly and professionally) and COBS 2.2.1R(1)(b) (the duty to

provide appropriate information in a comprehensible form) are relied upon;

and

c. a claim against the Defendant as a joint tortfeasor (this on the basis that the

Relevant Introducer gave negligent advice to the investor in recommending

the Defendant’s SIPP, or as the Defendant might say, the onward investment

underpinning each particular SIPP) because the Defendant was, so the

Claimants say, acting in a (separate) joint enterprise with each Relevant

Introducer.

7. 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.

8. 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”.

9. 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.

10. 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.

The Hearing

11. 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.

12. 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.

13. 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:

a. “As of 15 November 2017, we have been instructed by approximately 80

Claimants to investigate their potential claims against Berkeley Burke SIPP

Administration Ltd.

b. We are completing preliminary investigations in respect of approximately 74

of the 80 claims therefore no letter of claim has been served on Berkeley

Burke SIPP Administration Ltd as yet. We expect to our investigations [sic]

to be completed within the next two to three months.

c. If the claims have sufficient merit to proceed, we intend to serve formal Letter

of Claims on Berkeley Burke SIPP Administration accordingly.

d. Our investigations have been completed in respect of the 80 claims and a

Letter of Claim has been served on Berkeley Burke SIPP Administration

accordingly, we await a Letter of Response in respect of the same.”

14. 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.

15. 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.

16. 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.

The GLO Application

17. 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.

18. 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.

19. 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.

20. 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.

21. 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)”

22. 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.

23. 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.

24. 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”.

25. 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.

26. 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)?”.

27. 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?”

28. 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:

GLO issue 1: In carrying out the terms of the non-regulated introducer

agreement, did the relevant introducer make “arrangements” within Article 25

of the Regulated Activities Order?

GLO issue 2: If issue 1 is answered in the affirmative:

(a) Is Berkeley Burke relieved of any liability which might arise under

s27, FSMA by reason of COBS 11.2.19?

(b) Is Berkeley Burke relieved of any liability which might arise under

s27, FSMA by reason of Article 29 of the Regulated Activities

Order?

(c) Is Berkeley Burke relieved of any liability which might arise under

s27, FSMA by reason of Article 33 of the Regulated Activities

Order?

GLO issue 3: If GLO issue 1 is answered in the affirmative, did Berkeley

Burke know that the SIPP was being arranged by the relevant introducer in

contravention of the general prohibition?

GLO issue 4: If issue 3 is answered in the affirmative, does it follow it would

not be just and equitable to allow Berkeley Burke to enforce the SIPP

agreement or is further inquiry into each claimant’s circumstances required?

GLO issue 5: In establishing SIPPs in relation to those claimants who were

introduced by (1) TPS Land and (2) SJ Stone and (3) Jackson Francis, was

Berkeley Burke carrying on a joint enterprise with that introducer?

GLO issue 6: Was the standardised documentation produced by Berkeley

Burke sufficient to comply with their duties under COBS 2.2.1R?

GLO issue 7: In relation to each of the 3 causes of action relied on by the

claimants (s27, FSMA, breach of COBS and joint venture liability) when did

time start to run for the purposes of ss2 and 9 of the Limitation Act 1980?

GLO issue 8: In assessing any claimant’s loss, should the value of the single

asset SIPP be deemed to be “zero” or if it has no current, realisable market

value, should any assessment of damages be adjourned or should the court

make an interim award of damages?

29. 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.

30. 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)).

31. 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.

32. 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.

33. 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.

34. 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:

(1) the significant number of present Claimants and the number of further ones who

might reasonably be anticipated. If a GLO is made and publicised it is not

unreasonable to assume, on the basis of the present evidence, that there might be

around 200 claimants in total, and quite possibly considerably more. Their

number gives impetus to the next two reasons;

(2) in considering the balance (or imbalance) between common issues and those

which are discrete ones pertaining to individual claimants, the significance of the

common issues as they are presently identified in paragraph 28 above when

compared with claimant-specific issues. The latter might (as appropriate to the

particular case) include such questions as (a) what advice, if any, the Relevant

Introducer gave to a particular investor; (b) whether the investment (in or through

the SIPP) was or was not suitable for that particular investor; (c) whether there

are grounds for relieving the Defendant of the effect of section 27 of FSMA (cf.

the “just and equitable” relieving provision in section 28); (d) whether the

Claimant was contributorily negligent; and (e) any potential ex turpi causa

defence. My view is that the determination of an individual Claimant’s case will

be far advanced by a determination of the common issues even if that claimant

still has to face many of these potential individual issues and perhaps others too.

On this point, it is in my judgment important to bear in mind that the claimants

have chosen to sue on the basis that the relevant investment (which is said to have

triggered the relevant regulatory provisions and the agreement for which is said to

be unenforceable as a result by reason of section 27) is the SIPP itself and not the

onward investment (or suggested “single asset”) made through the SIPP. The

court should not therefore be deflected from its view about the value of a trial of

issues which are common to claims presented on that basis by the Defendant’s

rival and beguiling submission that it is more appropriate to case manage the

litigation by identifying lead cases which relate to particular Relevant Introducers

and particular underlying SIPP investment(s) and in which attendant disclosure

could be ordered;

(3) in relation to that last concept of “conclusiveness” in its loose sense, the potential

for some of the GLO issues to dispose of the claims without the further need for a

trial of any claimant-specific issues (if the issue is resolved in favour of the

Defendant) or so many trials, or perhaps lead trials, of such issues (if resolved in

favour of the GLO Claimants). Suggested issues 1, 2, 6 and 7 have the potential

to see the Defendant freed from liability or accountability whereas Nos. 3, 4, 5

and 8 should see the determination of the claims considerably advanced even if it

is not. In other words, CPR 19.12(1) – providing that a judgment on a GLO issue

binds all parties on the group register – should have real “bite” in this case;

(4) the ability of the court, in its future case management, to consider directing that

the trial of certain GLO issues should take place before others so that the block of

court and party time required for particular hearings can be considerably less than

the 6 week (plus) trial estimate contemplated by the Defendant in its evidence on

the Transfer Application for a trial of the whole. As appears from the evidence

filed on the Transfer Application, the parties are acutely aware of considerations

of convenience and cost for the litigants and their lawyers when it comes to travel

to and attendance at hearings;

(5) in a case where the individual SIPP investments made by the existing Claimants

range from approximately £6,000 to £160,000, there are obvious advantages in

adopting a procedure which provides that the Defendant’s disclosure on GLO

issues will be good for all parties on the register (CPR 19.12(4)) and which,

presumptively at least, provides that each group litigant is severally liable only

for his share of the common costs (CPR 46.6(3)). The nature and size of the

individual claims in this litigation is such that, so far as is possible in advancing

the litigation to the stage where the individual investor’s circumstances may fall

to be considered, the parties’ costs and the individual investor’s exposure for the

group’s own costs and, potentially, those of the Defendant need to be kept in

proportion; and

(6) lastly, the obvious case management of future claims, which might be scattered

around other courts, being grouped together in one court (see CPR PD 19B para.

9.1) which, as Mann J observed in Tew, provides that management court with the

means to control other claims by means of stays.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

The Transfer Application

43. 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.

44. 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).

45. 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.

46. 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.”

47. 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.

48. 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.

49. 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.

50. 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).

51. 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.

52. 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.

53. 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.”

54. 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, 2nd 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.

55. 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.

56. 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.

57. 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.

58. 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.

59. 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.

60. 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.

Disposal

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

(1) On the GLO Application, that a GLO is desirable. I therefore propose to write to

the President in accordance with PD 19B 3.4. Before I do so, and now that no

forensic pitfall prevents the Defendant from doing so, I would invite the parties to

engage with each other over the formulation of the issues as those are presently

identified in paragraph 28 above. A period of 14 days from the handing down of

this judgment should be sufficient for that purpose.

(2) On the Transfer Application, I dismiss the application so far it seeks a transfer to

the London Circuit Commercial Court and, so far as it seeks a transfer to the

Commercial Court and in accordance with PD 58 para. 4.4 and Appendix 14 to

the Commercial Court Guide), I express my view that a transfer is not

appropriate.

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