Ethan Thomas Wragg and Others v Opel Automobile GmbH

Hearing date: 11 January 2024

Approved Judgment

SENIOR Master Fontaine

This was a hearing (“the consequentials hearing”) to determine costs and other consequential matters following the handing down of judgment in this matter [2023] EWHC 2632 (KB) on 23 October 2023 (“the applications judgment”) in respect of applications issued by the First and Second Defendants (“the German Defendants”) dated 11 October 2022, 24 January 2023, 17 February 2023 and 20 April 2023 in the claims listed at Schedule 1 to the applications judgment. The same abbreviations are used in this judgment as in the applications judgment, and this judgment should be read in conjunction with the applications judgment.

There are four consequential matters for determination:

i) What, if any, sanction in costs against the Claimants is appropriate in respect of my finding that there was material non-disclosure of limitation defences available to the German Defendants by the Claimants in without notice applications for permission to serve claim forms out of the jurisdiction in 31 claims;

ii) What costs order is appropriate in respect of the applications made by the German Defendants, taking into account any appropriate costs sanction;

iii) Application for permission to appeal by the German Defendants;

iv) The appropriate wording of the order to be made in respect of the applications judgment, and any other directions required.

Sanction and Costs

These issues are related so for convenience I deal with them together.

There were three issues dealt with in the applications judgment: (i) the limitation nondisclosure, (ii) the alternative forum non-disclosure and (iii) the extension applications (to which the limitation non-disclosure was also relevant). I consider that there should be a sanction in costs for the material non-disclosure of the limitation issues. I rely on the authorities referred to at §§17–23 and §§40 – 41 of the applications judgment. It is well established that an actual or potential limitation defence to a claim is a material factor in a judge's decision as to whether there is a serious issue to be tried when considering an application to serve out of the jurisdiction.

The German Defendants seek an order that the Claimants pay the German Defendants' costs of their applications on an indemnity basis, to be assessed if not agreed. The Claimants submit that the appropriate sanction would be that the German Defendants pay 50% of the Claimants' costs of and occasioned by the Part 11 Applications in any event, on the standard basis and subject to detailed assessment if not agreed, subject to satisfying the indemnity principle.

I consider that the appropriate sanction is: (i) the Claimants to pay the German Defendants' costs of the limitation non-disclosure issue on the indemnity basis and (ii) that the Claimants' forgo some of the costs which they would otherwise been likely to have received from the German Defendants in respect of the issues which they were successful in opposing. My reasons for this conclusion follow.

Although the Claimants succeeded in opposing the German Defendants' applications for setting aside the orders for service out of the jurisdiction in respect of the limitation non-disclosure issue, I found there had been such material non-disclosure, so it is appropriate for the Claimants to bear those costs, and on the indemnity basis, given that this issue concerned material non-disclosure, which also was not acknowledged by the Claimants in their opposition to the applications.

I also consider that a further sanction in costs should be imposed, to reflect the disapproval of the court in respect of material non-disclosure in without notice applications, and to enforce the deterrent effect of such conduct by other litigants.

I will evaluate the costs of each issue as a percentage of the total costs of the German Defendants' applications, based upon my own assessment of the likely work and time taken by each issue, as the increased costs of an issue based detailed assessment are likely to be disproportionate, and as the judge hearing the applications I am best placed to make an informed assessment of the likely work and time incurred by each issue. I consider that the limitation non-disclosure issue and the extensions applications each took up approximately 40% of the work and time involved, and the alternative forum non-disclosure issue took up approximately 20% of the work and time involved.

If the extensions applications and the alternative forum non-disclosure issue fell to be dealt with without any sanction, the general rule would be that as the successful party the Claimants would be entitled to their costs of those issues. I consider that an appropriate further sanction would be for the Claimants to forgo their costs of the extension applications, so there will be no order for costs in respect of that issue. I consider that the general rule should apply in respect of the alternative forum issue, where the German Defendants failed, and where in my view, it was always foreseeable that they would fail. Accordingly, the order that I consider to be appropriate in respect of costs is:

i) The Claimants to pay the German Defendants 40% of their costs of the applications on the indemnity basis.

ii) The German Defendants pay the Claimants 20% of their costs of the applications on the standard basis, such order to be subject to the Court's decision on the German Defendants' case that an order of costs in favour of the Claimants would infringe the indemnity principle, such argument to be considered at a hearing listed to be heard between 26 and 28 February 2024 before Senior Master Cook.

iii) There be no order for costs in respect of the remaining costs of the applications.

I will consider the amount of any interim payment on account of costs either of my own initiative, or upon receipt of brief written submissions from the parties, which I should be grateful to receive by 10.00am Tuesday 16 January 2024, so that the order can be made as soon as possible.

In reaching this determination of costs I take account of the penal nature of the sanction for material non-disclosure, the need for the court to mark its displeasure, and the necessary deterrent effect to other litigants. I temper the sanction with the recognition that this is effectively satellite litigation, which has not advanced the issues between the parties, and incurred very substantial amount of time and costs. As noted by the Claimants' leading Counsel, there was no application to set aside such order on jurisdictional or forum non conveniens grounds, where the issue of such non-disclosure would make no difference.

Permission to Appeal

The German Defendants seek permission to appeal all issues save for the alternative forum issue, and have provided draft grounds of appeal. There are nine grounds of appeal in relation to the limitation non-disclosure issue and 11 grounds of appeal relating to the extension applications. The German Defendants submit that such grounds would have a real prospect of success, and also that there is some other compelling reason for the appeal to be heard, pursuant to CPR 52.6(1) (a) and (b).

The determinations that were made in the applications judgment were primarily matters of discretion, in particular those in relation to the appropriate sanction for the limitation non-disclosure. Where a ground is said to be also based upon an alleged error of law I respectfully disagree, as the instances relied upon all appear to be based upon an exercise of discretion based upon the guidance in the authorities. In some of the grounds based on alleged errors of law, I disagree with the description of the paragraph(s) of the judgment.

There are three grounds based upon an alleged error of fact, in respect of information held by both Claimants and Defendants relating to dates of acquisition of vehicles by Claimants, relevant to limitation. It is unclear why neither party notified me of such an error of fact after receipt of the draft judgment on 31 August 2023, and in any event before judgment was handed down on 23 October 2023, in particular as I have been informed that there was correspondence about the issue between the parties following their receipt of the draft judgment. My understanding is that parties should inform the judge of any typographical errors and obvious errors of fact in a draft judgment, so that the judge has the opportunity to correct these, if they consider it appropriate, before judgment is handed down. However, I consider that this is not an error that would have been likely to have changed my decision as to the consequences of the non-disclosure, as the judgment recognised that a substantial number of claims were likely to be time barred, and there remained the question of not being able to identify what proportion of the time barred claims would have been able to rely on S. 32 Limitation Act applications, a matter that could not have been dealt with in a paper application for permission to serve out of the jurisdiction where there were over...