Various Claimants v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Rowley |
| Judgment Date | 04 April 2023 |
| Neutral Citation | [2023] EWHC 827 (SCCO) |
| Court | Senior Courts |
| Docket Number | Case No: SC-2022-BTP-000916 |
[2023] EWHC 827 (SCCO)
COSTS JUDGE Rowley
Case No: SC-2022-BTP-000916
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE
IN THE MOBILE TELEPHONE VOICEMAIL INTERCEPTION LITIGATION
(“MTVIL”)
Thomas More Building
Royal Courts of Justice
London, WC2A 2LL
Simon Browne KC and Sara Mansoori KC (instructed by Hamlins) for the Claimants
Clare Reffin and George McDonald (instructed by Clifford Chance) for the Defendant
Hearing dates: 2, 3, 6 and 7 February 2023
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
COSTS JUDGE Rowley
Introduction
This judgment arises from the preliminary issues hearing held over four days in February and deals with all aspects raised, save for the application regarding the claimants' election as to production of certain documents, which I dealt with during the course of the hearing. This judgment therefore deals with the following issues:
i) Hourly rates
ii) Recoverability of counsels' success fees
iii) Quantum of solicitors' success fees
iv) Quantum of counsels' success fees
For completeness, I should record that I put the claimants to their election, in accordance with paragraph 13.13 of PD 47, in respect of (i) the Costs Sharing Agreement (“ CSA”) and (ii) the Common Costs Conditional Fee Agreement (“CCCFA”) entered into with Hamlins LLP by each of Simon Browne KC, Sara Mansoori KC, David Sherborne and Julian Santos. I declined to put the claimants to their election in respect of the agency agreement between Hamlins LLP and the Legal Research Team.
I also declined to put the claimants to their election, at least at this stage, in respect of the individual CFAs entered into by the claimants with their respective solicitors. This was very largely on the basis that the defendant's request concerned issues said to arise out of the Court of Appeal's decision in BNM v MGN Ltd [2017] EWCA Civ 1767. The extent to which those issues arise, in my view, would be dealt with more satisfactorily with the benefit of specific figures following further progress in the detailed assessment. As a result, although I received some submissions from Simon Browne KC for the claimants and George McDonald for the defendant on the BNM issue, it has essentially been put back to an appropriate point in the line by line assessment due to take place on numerous dates starting from 20 March 2023.
Finally, I record my appreciation of the written and oral submissions of all four counsel (Mr Browne and Sara Mansoori KC for the claimants; Clare Reffin and Mr McDonald for the defendant). In litigation, which is as long-running and time-consuming as this, there is an almost limitless amount of points and examples that could have been raised. I consider the balance was well struck in providing examples to support points made and explanations of the unusual features of this litigation and yet avoiding unending repetition.
The Mobile Telephone Voicemail Interception Litigation
The length of time the Mobile Telephone Voicemail Interception Litigation (“MTVIL”) has been proceeding can be measured by the fact that the first managing judge (Vos J) has since been elevated to the Court of Appeal and the position of Master of the Rolls and the second managing judge (Mann J) has retired. The third and current managing judge, Fancourt J, has just celebrated his second anniversary having taken over from Mann J from 1 March 2021.
In order to assist the incoming managing judge, Mann J ordered both sides to prepare a “primer” document of no more than 25 pages setting out the general picture of how the litigation had developed from the first claim in 2007 and more particularly the managed litigation which began in 2011. Entirely naturally, the parties referred me to the same documents as part of my pre-reading before the preliminary issues hearing. As the defendant's skeleton argument points out, the primers are written from very different viewpoints, and they lead into the submissions made by the parties on the issues that are before me.
Similar “phone hacking” proceedings have been brought against Mirror Group Newspapers (“MGN”) and judgments in that litigation have been referred to in these proceedings, particularly Gulati & Ors v MGN [2015] EWCA Civ 1291 and two decisions of Andrew Gordon-Saker, the Senior Costs Judge, in respect of Various Claimants v MGN on 9 November 2016 ( [2016] EWHC B29 (Costs) and 12 December 2017. In the MGN proceedings, the cases were brought in “Waves.” Here, they have been brought in “Tranches” with one tranche starting after the previous one concluded as follows:
• Tranche 1 (“T1”) — 15 April 2011 to 27 February 2012
• Tranche 2 (“T2”) — 27 February 2012 to 4 July 2014
• Tranche 3 (“T3”) — 5 September 2015 to 25 March 2019
• Tranche 4 (“T4”) — 26 March 2019 onwards
The costs of bringing the claims have long been regulated by the court. For example, Vos J set hourly rates for the purposes of budgeted costs in 2012. In respect of T4, Mann J made an Order for T4 Costs Arrangements (the “Costs Arrangements Order”) on 3 April 2019. That order tied in with one made on 26 March 2019 concerning consequential matters following on from the final T3 claims having settled.
The Costs Arrangements Order appointed Hamlins LLP as the Lead Solicitor for the T4 Claims. As such, it was to maintain a register of the T4 Claims that were issued and joined the managed litigation by the claimant subscribing to the CSA. Each such claimant would then be liable for a share of the common costs incurred by Hamlins LLP as solicitor agent together with counsels' fees and disbursements. That share could be claimed from the defendant in the event of success. The defendant could seek a share of its costs from the claimant if the claim failed. Each claimant's share would be worked out based upon the number of two monthly periods during which the claimant's claim was on the register and the number of other claimants present during the same periods.
These common costs were in addition to the individual costs incurred by the claimant in instructing their own solicitor to pursue the claim.
The bill of costs before me runs for the period of 26 September 2020 until 7 September 2021. Several CMCs took place during that period and Fancourt J heard those that took place in June and July 2021. By then preparations for the forthcoming trial in November 2021 were fully in the parties' and the court's mind. In the following paragraphs I have set out some of the introductory paragraphs of Fancourt J's rulings in June 2021, July 2021 and October 2021 which encapsulate much of the submissions before me as to the nature of the MTVIL.
The extracts are not in chronological order. The first is from 27 July 2021 ( [2021] EWHC 2187 (Ch)) and describes the nature of these “phone hacking” cases:
“2. These claimants and numerous others have brought claims against NGN for invasion of privacy in their private telephone messages (both left and received), with unlawful information gathering alleged to have led to the publication of articles about the claimants in the News of the World and The Sun newspapers.
3. For each individual claim relating to unlawful information gathering and articles published about an individual there is also a generic claim based on allegations of institutionalised phone hacking and unlawful information gathering followed by destruction and concealment of data in an attempt by NGN to hide the unlawful activity that had allegedly been going on. Proof of the generic claim, even if it does not relate to publications against the claimants specifically, will form the basis of a claim for higher and/or aggravated damages against NGN by each claimant.
4. There has been substantial rolling disclosure in relation to the generic claim. All the generic disclosure that has accumulated to date has been made available to each individual claimant. In the current tranche of MTVIL claims, there have been numerous applications for further generic disclosure, often based on information newly obtained by previous disclosure applications or by new witness evidence. That process is by and large completed, so far as the trial due to start in November this year is concerned.”
The relationship between the generic work and the individual (or “Claimant specific”) work is fundamental in these proceedings. A specific order detailing how the generic work would be dealt with was originally made on 20 April 2012 and has been extended during the life of the MTVIL. It specifies not only the lead solicitor but also the counsel team which was to be used and the requirement for any claimant who wished to benefit from the managed litigation to enter into an agreement (the CSA) to share the costs of the generic work. The bill before me is purely in relation to “common costs” i.e. costs relating to the generic work during the 12 months or so from 26 September 2020. It is the second bill for such work in this tranche of the proceedings.
The second passage is from Fancourt J's ruling on 16 June 2021 ( [2021] EWHC 1737 (Ch)). It concerns one of the “numerous applications for further generic disclosure” referred to above by the Judge. In his June judgment, Fancourt J decided that he did not need to rehearse in any detail the history of such applications but would make three broad points at the outset:
“4. First, as I have said, there has been a long process of generic disclosure applications, the results of which often lead to further disclosure applications, and the volume of generic disclosure already given is huge. That is not to say that it is complete and, indeed, it is part of...
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