Citroen Picasso: Claimants to pay share of costs order
The High Court has refused to strike out cases brought by 5,000 Dieselgate claimants after their law firm failed to serve the claim form before the cut-off date.
Mr Justice Constable stayed [1] the claims while the group litigation continues but ordered that the claimants nonetheless pay their share of the adverse costs order, nearly £1m, that followed July’s liability ruling in the main case.
Earlier this year, the 5,000 claimants, represented by Liverpool firm Bingham Long (BL), applied to join the Peugeot/Citroen/DS (PCD) claim within what is officially known as the Pan-NOx emissions litigation.
The claim form was validly issued but not served before the cut-off deadline provided for in the PCD group litigation order (GLO) made in January 2024, although it was served within the four-month deadline generally required under the CPR.
Senior Master Cook held in June [2] that there would be prejudice “to the orderly conduct of proceedings” if the claimants were allowed to join the action now.
He did not say what should happen next, which was what Constable J had to decide instead. The defendants applied to strike out the claims.
The judge said the consequence was that the BL claimants “sit firmly outside the PCD GLO”, meaning that they were in breach of the obligation to have served particulars of claim.
However, he decided not to strike out the claims immediately: “The fact that the BL claimants have brought themselves to this position through their own failures weighs heavily against them.
“Their conduct justifies making any further opportunity both short and final. It does not, in my judgment, make it proportionate to dispense with that opportunity altogether.”
Constable J gave the claimants 21 days to served particulars of claim, failing which the claims would stand struck out. If they were, the claims would then be stayed generally, with liberty to apply.
“That reflects the distinction identified earlier in this judgment: the claims may subsist outside the PCD GLO, but the BL claimants are not thereby entitled to prosecute them independently in a manner which cuts across the orderly conduct of the group litigation.
“It is neither necessary nor presently possible to identify the point at which it may become appropriate to lift that stay.”
Counsel for the other PCD claimants then sought an order that the stay should nonetheless treat the BL claimants as if they were subject to the GLO.
Following the liability trial, which went largely for the defendants [3], Lady Justice Cockerill LJ ordered that the PCD claimants make a £23m interim costs payment. Earlier this month, Pogust Goodhead – one of the lead solicitors – said this amounted to £972,000 for the BL claimants, as they constituted about 5% of all the claimants.
Constable J accepted that the express costs-sharing provisions of the GLO did not apply to the BL claimants. However, “the lead solicitors and the remaining claimant cohort all proceeded on the basis that the BL claimants would participate in the costs consequences of the PCD litigation” – they made “substantial contributions” to common costs and common work undertaken for the benefit of the wider claimant group.
“In those circumstances, it would be artificial to treat the BL claimants as complete strangers to the costs consequences of the proceedings.
“Moreover, the BL claimants, whose claim is now stayed, may in due course seek to lift the stay at an appropriate point for the purposes of obtaining any benefit from the work done so far by the PCD claimants within the PCD GLO and such further work as may be required of them in the future.
“To permit the BL claimants to retain the benefit of the work undertaken on behalf of the PCD claimant group, whilst requiring the remaining PCD claimants alone to shoulder the adverse costs consequences of that work, would produce a result which is neither fair nor consistent with the overriding objective.”
Constable J ordered the BL claimants pay their share of the adverse costs order.