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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Your Lawyers Ltd v Capital Interchange Ltd & Anor [2024] EWHC 287 (Ch) (23 February 2024) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2024/287.html Cite as: [2024] EWHC 287 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch.D)
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
| Your Lawyers Limited |
Claimant |
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| - and - |
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| (1) Capital Interchange Limited (2) Therium Capital Management Limited |
Defendants |
____________________
Stuart Isaacs KC and Clara Hamer (instructed by Cardium Law Limited) for the First Defendant
Henry Warwick KC and Thomas Samuels (instructed by Freeths LLP) for the Second Defendant
Hearing dates: 13 and 14 December 2023
____________________
Crown Copyright ©
Elizabeth Jones KC :
Background
"Final versions of advices on liability and quantum, alongside a full litigation pack, were sent to Mr Fairley on 2 and 3 April 2016. [YLL] sent those documents, including privileged and confidential documents and which represented the product of substantial work analysing and preparing the claim, pursuant to the NDA and in the expectation that it would be provided to third parties only in circumstances permitted by clause 3 of the NDA".
"The recipient [Harcus Sinclair] undertakes not to use the confidential information for any purpose except the purpose, without first obtaining the written agreement of the discloser [YLL]. The recipient further undertakes not to accept instructions for or to act on behalf of any other group of claimants in the contemplated group action without the express permission of the discloser."
"The discloser intends to disclose information ("the confidential information") to the recipient for the purpose of obtaining legal advice on behalf of claimants in a large group action ("the purpose").
The grounds for the present applications
"The court may strike out a statement of case if it appears to the court
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;
"
"The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial."
"Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides (Harris v Bolt Burdon [2000] CP Rep 70; [2000] CPLR 9). A claim or defence may be struck out as not being a valid claim or defence as a matter of law (Price Meats Ltd v Barclays Bank Plc [2000] 2 All ER (Comm) 346, Ch D). However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact (Farah v British Airways, The Times, 26 January 2000, CA referring to Barrett v Enfield BC [2001] 2 AC 550; [1989] 3 W.L.R. 79, HL). A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence (Bridgeman v McAlpine-Brown, 19 January 2000, unrep., CA). An application to strike out should not be granted unless the court is certain that the claim is bound to fail (Hughes v Colin Richards & Co [2004] EWCA Civ 266; [2004] PNLR 35, CA (relevant area of law subject to some uncertainty and developing, and it was highly desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts)).
Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend (In Soo Kim v Youg [2011] EWHC 1781 (QB))."
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10];
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3;
vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725."
The application by CIL
i) For the purposes of CPR 3.4(2)(a), on the assumption that the facts pleaded in the Particulars of Claim are true, the case is bound to fail; and
ii) For the purposes of CPR 24.2, YLL's case has no real prospect of success on the facts and is bound to fail.
"12. The [CIL NDA] recited and provided that:
"1. The Discloser [YLL] intends to disclose information (the Confidential Information) to the Recipient [CIL] for the purpose of obtaining litigation funding advice on behalf of Claimants in a large Group Action (the Purpose).
2. The Recipient undertakes not to use the Confidential Information for any purpose except the Purpose, without first obtaining the written agreement of the Discloser. The Recipient further undertakes not to accept instructions for or to act on behalf of any other group of Claimants in the contemplated Group Action without the express permission of the Discloser.
3. The Recipient undertakes to keep the Confidential Information secure and not to disclose it to any third party except those who know they owe a duty of confidence to the Discloser and who are bound by obligations equivalent to those in clause 2 above and this clause 3.
4. The undertakings in clauses 2 and 3 above apply to all of the information disclosed by the Discloser to the Recipient, regardless of the way or form in which it is disclosed or recorded but they do not apply to:
a) Any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or
b) Any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the Discloser."
"requested that a 'pack' be put together for interested funders, containing details about the proposed claim and specifically including merits advice on the claim ("the Litigation Pack")".
"Final advices on liability and quantum, alongside a full litigation pack were sent to Mr Fairley on 2 and 3 April 2016. [YLL] sent those documents, including privileged and confidential documents and which represented the product of substantial work analysing and preparing the claim, pursuant to the NDA and in the expectation that it would be provided to third parties only in circumstances permitted by clause 3 of the NDA."
"On 5 April 2016 ..Mr Fairley emailed the Litigation Pack to Therium the documents comprising the Litigation Pack represented the work product of the Claimant's extensive preparation of the claim (including the work done by junior counsel) as well as its confidential insight into and analysis of the viability and attractiveness of the Emissions Scandal as the subject of viable and profitable group litigation".
"39. Pursuant to clause 3 of the [YLL/CIL] NDA, CIL undertook not to disclose the Confidential Information to any third parties except those who had undertaken obligations to CIL to the same effect, including in particular an obligation not to accept instructions to act on behalf of any other group of claimants in the proposed group action without [YLL's] express permission.
40. The agreement between CIL and Therium contained no such clause and did not prevent Therium from funding another group of claimants in the proposed group action without [YLL's] express permission, contrary to the assurances given to [YLL] by Mr Fairley.
41. Accordingly, CIL's disclosure of the Confidential Information was a breach of clause 3 of the [YLL/CIL] NDA."
"[66] .. Ultimately, Mr Foxton's argument turned on his suggestion that clauses 14, and 7 read as a whole made it clear that the Restriction was limited to actions brought, based on the disclosed confidential information. He reached that conclusion by arguing that, otherwise, neither clauses 3 nor 4 made sense, because they referred respectively to the "obligations" and "undertakings" in clause 2. Since the plurals were used, the references back in clauses 3 and 4 must be taken to refer to both the first sentence of clause 2 concerning confidential information and the Restriction inhibiting competition.
" 67.In our view this ingenious argument proves too much. It requires the addition to the Restriction of the words 'based on the confidential information disclosed' which are simply not present. The restriction does not say that [Harcus Sinclair] undertakes not to accept instructions for or to act on behalf of any other group of Claimants in a contemplated Group Action based on the confidential information disclosed. The last six words are not present, even though they could easily have been added. Moreover, the more obvious interpretation is to read clauses 3 and 4 of the NDA as if they are only referring back to the main provisions of the NDA concerning disclosure of confidential information. That does no violence to clause 3, where the words 'obligations equivalent to those in clause 2 above and this clause 3' can properly refer to the first sentence of clause 2 and the whole of clause 3 itself. It is true that the words 'The undertakings in clauses 2 and 3 above' in clause 4 do, on the judge's interpretation, need to be read as if they refer only to the undertakings in the first sentence of clause 2 and in clause 3. As it seems to us, however, that is a perfectly natural reading of an agreement that includes two types of obligation: those related to the disclosure and use of confidential information on the one hand, and a non-compete clause on the other hand. (underlining added)
68. We accept Mr Foxton's [counsel for Harcus Sinclair] point that the Restriction seems rather broad on the judge's construction. We accept that the Restriction is a single provision in an agreement that is otherwise wholly concerned with the protection of confidential information disclosed for the purposes of obtaining what is seemingly intended to be preliminary legal advice. But we find it impossible to escape the conclusion that the clear words of the Restriction mean what they say. We agree with the judge when he said at para 274 that the Restriction is not ambiguous. "
"Since the decision of the court on the meaning of a contract decides a question of law, the doctrine of stare decisis theoretically means that any inferior court is bound by the point of law decided. However any contract is a consensual arrangement between particular parties made against the background of particular circumstances. In those circumstances it has proved a relatively simple task for the court to distinguish a decision made in relation to a different contract when it so desires. Indeed some judges have asserted that the decision of a superior court on a question of interpretation of a written contract does not bind even an inferior court".
The question is therefore whether the decision in the HS Proceedings can be distinguished in the present proceedings.
"[249] First, there is the question of what the words in sentence 2 mean. What is their effect? The defendant says that the meaning of sentence 2 is clear. It prohibits "Harcus Sinclair" from acting for any group of claimants in the "VW litigation" other than the defendant's group of claimants. In its skeleton argument for trial the expression "Harcus Sinclair" was used to identify both claimants, without distinction. The expression the "VW litigation" was not defined, but I take it to mean the same litigation in the Queen's Bench Division which I am referring to as the emissions litigation.
[250] The claimants say that sentence 2 had a much narrower meaning, which is helpfully summarised in paragraph 16 of the claimants' very helpful, and full note in closing. What is said in para 16 is as follows: "As set out in section D of Harcus Sinclair's skeleton argument, on its proper construction, sentence 2: (1) was confined to Harcus Sinclair llp, (2) was confined to the group action that was contemplated in the information in respect of which confidence was to be preserved, which Your Lawyers intended to disclose to Harcus Sinclair llp in anticipation of discussions between them about a possible collaboration; (3) did not preclude Harcus Sinclair llp from representing clients of their own; and (4) governed the position only until the parties agreed to collaborate."
"[50] Against that background, this court has to decide whether the judge was right to decide that: (i) the Restriction should be interpreted broadly; (ii) the Restriction was not unenforceable as amounting to an unreasonable restraint of trade; (iii) the NDA was subject to an implied undertaking by HSLLP that it would ensure that HSUK would not do anything which would be a breach of the Restriction, and HSLLP was itself in breach of the Restriction by acting, through the staff it seconded to HSUK, for the HS Group; and (iv) YLL had not agreed that it would not enforce the Restriction, and YLL was not estopped by convention or by acquiescence from denying that HSLLP and/or HSUK were entitled, despite the Restriction, to act for claimants in the Emissions Litigation. (v) The other issues should be resolved as he did.
..
[51] HSLLP has advanced a number of arguments as to the correct interpretation of the Restriction. In the result, there were two main submissions. First, that the judge ought to have interpreted the phrase "contemplated group action" as meaning only the group action in contemplation at the time of the NDA, namely that against VWUK. Secondly, Mr David Foxton QC, leading counsel for HSLLP, placed reliance on clauses 3 and 4 of the NDA as demonstrating that the scope and purpose of the Restriction concerned group actions founded on the use of confidential information disclosed under clause 2 and nothing else. Mr Foxton also submitted that, on a close textual analysis, "the contemplated group action" could not mean "group actions", and the plural word "undertakings" used in clause 4 had to refer to both undertakings in clause 2, including the Restriction. This latter point focused the interpretation of the Restriction on the disclosure of the confidential information and made HSLLP's second interpretation, Mr Foxton submitted, the only possible meaning, or at least a possible meaning, of the words used in the whole of the NDA".
"we think there is some force in Mr Coleman's submission that, even if one were just protecting confidential information, a non-compete undertaking may be needed. This is because it is often difficult to prove what is and what is not confidential information and, in particular, whether that information has been misused. A non-compete undertaking may be a useful means of ensuring that confidential information is protected without needing to prove, through protracted litigation, that the information has been misused".
"[52] The Claimant's work on identifying, pursuing, formulating and developing the proposed group action arising out of the Emissions Scandal was undertaken at its own expense, including the instruction of junior and leading counsel, with whose opinions Therium was provided. Therium had the benefit of the access to that work, and to the benefit of the insight into the viability of the proposed claim as a profitable litigation project that it might wish to fund".
[53] The benefits were provided to Therium on either or both of the following bases:
(a) on the basis that Therium was subject to contractual duties of confidence equivalent to clause 3 of the NDA, such that Therium would not, following receipt of the confidential information (and thereby receipt of the Benefits) be able to fund any group of claimants in the proposed group action except the Claimant's own group save with its permission. As set out above CIL had failed to ensure that Therium was subject to such a duty". ...emphasis added)
"47. First, under clause 5.2 of the CIL/Therium Agreement:
"Where a case has been introduced first to the Company [Therium] by the Introducer [CIL], the Company agrees not to:
5.2.1 accept the referral by any other introducer; or
5.2.2 treat the case as a direct referral
and thereby circumvent the Introducer's involvement or its potential entitlement to Introducer's Commission (in accordance with clause 3 above)."
48. Also, clause 13 of the CIL/Therium Agreement provides that:
"Non Circumvention and Good Faith
13.1 Both parties agree that neither party shall circumvent the other party with regards to any transaction, opportunity, investment or relationship involved in or resulting from the disclosure of confidential information, pursuant to clause 6, from one party to the other party or the contents of such information.
13.2 The parties agree that they each owe the other a duty of good faith in relation to the performance of their respective obligations."
49. Those provisions have the effect of preventing Therium from accepting any referrals in the VW emissions litigation from anyone other than CIL following CIL's first introduction.
50. Second, since by virtue of the non-compete obligation in the second sentence of clause 2 of the YLL/CIL NDA, CIL itself required YLL's express permission to accept instructions for or to act on behalf of any group of claimants other than the YLL claimants, Therium could not itself act on behalf of any other group of claimants without YLL having given its express permission to CIL to enable that to occur."
"401. none of the information contained in the Confidential Documents has been used by [Harcus Sinclair LLP] in such a way as to breach the duty of confidence owed by [Harcus Sinclair LLP] in respect of the Confidential Documents. I find that the Confidential Documents have not acted as any kind of springboard in the formulation of the claim which is now being pursued on behalf of the HS Group.
402. It seems to me that the claim which is now being pursued on behalf of the HS Group derives from [Harcus Sinclair LLP's] own work and the work of [Harcus Sinclair LLP's] counsel, not from the Confidential Documents.
407. I therefore conclude that [Harcus Sinclair LLP] has not misused the information in the Confidential Documents, or any of that information in breach of its non-contractual duty of confidence to [YLL].
409. On the basis of the same reasoning I do not think that it can be said that [Harcus Sinclair LLP] has used, or is using the information in the Confidential Documents for a purpose not authorised by [the first sentence of clause 2 of the Harcus Sinclair NDA]. In my view there has been, and is no such use."
The application made by Therium
i) A claim for damages in unlawful means conspiracy;
ii) A claim for damages or alternatively an account of profits arising from alleged breaches of duties of confidence;
iii) A claim for restitution of benefits conferred by YLL on Therium, namely YLL's insights into the viability of the proposed group action as a profitable litigation project and the benefit of the opinions of leading and junior counsel, by which Therium had been unjustly enriched.
The claim in breach of confidence and the claim in restitution
"42. On and after 4 April 2016 (including in particular on receipt of the Litigation Pack on 5 April 2016 and through the process of collaboration thereafter which Harcus Sinclair LLP, [YLL] and Therium were all involved in between April 2016 and November 2016), Therium received confidential information ("the Confidential Information") belonging to [YLL], including the work product of legal representatives conducting research, analysis and case preparation at the Claimant's expense, as well as valuable insight from the Claimant as to the viability and potential profitability of the proposed group action. The provision of confidential information continued throughout the Claimant's discussions with Therium on potential funding of the claim and its discussions with Harcus Sinclair.
43. At all material times Therium knew or ought to have known that the information received by it from or on behalf of [YLL] was confidential and Therium was at all material times subject to a duty of confidence in respect of that information.
44. Therium breached its duty of confidence to the Claimant in that it:
a) Disclosed the existence of the proposed group action and details of its state of progression to Mr Parker and Harcus Sinclair through Mr Moore's conversation with Mr Parker on 7 April 2016.
b) Disclosed the confidential information contained in the Litigation Pack to Mr Parker and Harcus Sinclair through Mr Moore's email to Mr Parker on 8 April 2016;
c) Participated in discussions with Harcus Sinclair alone and/or with Slater and Gordon in which the confidential information as to the formulation of the claims and the Claimant's insight into the viability of the proposed group claim and marketing strategies (comprising both the information contained in the initial Litigation pack and the information disclosed during the subsequent informal collaboration and negotiations) were discussed.
d) Utilised [YLL's] work product and its insight into the commercial viability of the proposed group action and marketing strategies in deciding whether to invest in the funding of the action".
i) What information in addition to the Litigation Pack it relies on in support of the allegations in paragraph 44 of the Particulars of Claim;
ii) How and when it is alleged that that information was provided to Therium.
i) It is clearly not appropriate at a summary judgment stage to conduct a mini-trial as to whether YLL were or were not competent, or whether the budget was realistic and what was the significance of that;
ii) As set out in paragraph [85] above, if Mr Parker came to a view about the proposed group action as a result of the Litigation Pack which he would not have had without it, it is at least arguable at this stage that evidence which will be available at trial will establish that the state of mind of Therium, which sought Mr Parker's views on the viability of the litigation, would also have remained negative.
The HS Judgment and its status
"For reasons which I explained in a judgment delivered [at the hearing on 24 August 2017] I took the view that the Claimants' approach would not work, and that all the issues arising between the parties in this dispute (save for the quantum of any damages/compensation to which the defendant might be entitled) needed to be resolved as swiftly as possible, so that the hearing of the GLO application could proceed without the interference of this dispute (in an unresolved state). I therefore made an order that the action should continue as if commenced by Part 7 claim form, and gave directions for an expedited trial. I ordered the details of claim attached to the claimants' claim form and the first witness statement of Mr Beresford to stand as the claimants' particulars of claim in the action".
"28. At the hearing on 24 August 2017 it was agreed between the parties that standard disclosure should be dispensed with and that, in place of standard disclosure, there should be directions permitting each party to request specific disclosure of documents, with provision for application to court to be made in the event of documents being requested and not provided. In the event there were applications for specific disclosure made by each side, which I dealt with at a pre-trial review in the action, held on 15 September 2017, and in a pre-trial hearing, held on 26 September 2017.
29 The action came on for trial on 27 September 2017. The expedited nature of the trial meant that a very large of amount of work had to be done, in a short space of time, in order to prepare for trial. I pay tribute to the legal teams on both sides for all their hard work in ensuring that the action was ready for trial on 27 September 2017, particularly given the large number of documents which eventually came to occupy the trial bundles. As a result of all this hard work, for which I am extremely grateful, I consider that I am in as good a position to determine the issues in this action as I would have been if the action had followed a conventional path to trial."
"55. In his oral evidence Mr Moore accepted that he regarded these e-mails from Mr Fairley and their attachments as confidential (to the extent that the attached information was not available to the public), save for the Wikipedia information, and that he had no authority to send the confidential material attached thereto on to anyone else. Mr Moore did however qualify this. Mr Moore claimed that he was entitled, under his arrangement with Mr Fairley, to take legal advice from his advisers.
56. Mr Parker met Mr Moore at a lunch on 7 April 2016. Mr Moore mentioned the proposed Volkswagen group claim, and asked Mr Parker what he thought. On the evening of the same day (21.22) Mr Fairley e-mailed Mr Parker, seeking an initial conversation in respect of the proposed group claim, which Mr Fairley did not identify specifically. Mr Parker replied by e-mail the following day (14.28 on 8 April 2016) asking if he could see the opinions. Mr Parker did not identify what he meant by the reference to the opinions. Mr Parker did say that he would be happy to sign a non-disclosure agreement, and asked if he could ask Therium for the opinions. Mr Fairley e-mailed in reply (14.33) saying that he would get back to Mr Parker on that.
57. On 8th April 2016 Mr Moore emailed Mr Parker attaching the litigation pack and saying that he would be interested in the opinion of Mr Parker on the legal merits of the case. The email was marked private and confidential.
62. ..Mr Moore's evidence in cross examination was that he was seeking legal advice from Mr Parker, as his legal advisor, and that he was entitled to do that pursuant to his arrangement with Mr Fairley/CIL. I do not accept that in providing the Litigation pack to Mr Parker Mr Moore was exercising a legal right conferred on him by CLL or [YLL]. This begs the question of where, and in what terms this legal right existed. This also seems to be inconsistent with the circumstances in which Mr Moore met with Mr Parker and provided the Litigation Pack to Mr Parker. The Litigation Pack was provided to Mr Parker not because Mr Moore decided to seek advice from Therium' solicitors but because Mr Moore bumped into Mr Parker at a lunch and asked him for this thoughts on the proposed group claim. It seems to me that Mr Moore had no right to send the Litigation Pack to Mr Parker without the authority of [YLL]. It also seems to me that Mr Parker should have appreciated that he was being sent a pack of documents which included documents which were confidential, and in some cases, subject to legal privilege". It should be noted that the CIL/Therium agreement was not in evidence in the HS Proceedings.
.
65. I do not regard Mr Parker as a devious person. That was not my impression of Mr Parker, either from Mr Parker's written evidence or his oral evidence. ..I think that in this instance and as part of his initial and informal assessment of the merits of the proposed group claim, Mr Parker paid less attention than he should have done to the legalities of the position, in terms of whether he had a right to see the Litigation Pack when it was sent to him by Mr Moore.
74. I make the following particular findings of fact in relation to the entry of the parties (the Defendant and the First Claimant into the NDA):
i) Mr Parker signed the NDA Agreement without reading the NDA or giving it any thought ..
..
125. I make the following particular findings of fact in respect of the period May 2016 to September 2016.
(1) During this period the informal process of collaboration between [Harcus Sinclair and YLL] in respect of the proposed group claim continued, pending agreement on the terms of a binding collaboration agreement.
..
(3) Negotiations over the terms of a binding collaboration agreement continued during this period, but without agreement being reached.
(4) By late August Mr Parker was aware that there was a diminishing prospect of Therium agreeing to fund the proposed group claim with [YLL] in a prominent role, and without [Harcus Sinclair] in a leading role. Mr Parker did not share this information with [YLL].
(5) There was no discussion between the parties as to what would happen if the parties failed to agree on the terms of a binding collaboration agreement. Mr Johal assumed that he would have the protection of the NDA in this event. Mr Parker, in continuing ignorance of the restrictions in the NDA, assumed that he and [Harcus Sinclair] would be free to act for their own group of claimants in the proposed group claim, if they so chose.
(7) By the end of September 2016 Mr Parker had begun to form, without the knowledge of [YLL], his own group of claimants, separate from [YLL's] group of claimants.
(8) As at the end of September 2016 Mr Parker had not given up on the prospect of collaboration with [YLL] and the informal process of collaboration was continuing.
137. On 20 October 2016 Mr Parker sent a lengthy email with attachments to Mr Johal setting out "what we .. have done". The email went on to list what Harcus Sinclair had done, which included the issuing of a claim form, the preparation of a draft witness statement in the name of Mr Parker, in support of an application for a GLO, the settling of draft generic Particulars of Claim, in support of an application for a GLO, the settling of draft generic Particulars of Claim by [counsel instructed by Harcus Sinclair], and Mr Parker contacting other firms, including Ms Young of [Slater & Gordon]."
"Therium put the case up to the investment committee the day before yesterday on the basis of just funding us unfortunately but have fortunately come away with an offer of £5m of funding. I do not think that is a disaster for future co-operation because it leaves open the issue of our collaborating with separate funding and it at least allows us to crack on and move more quickly than (say) Leigh Day "
"159. I make the following particular findings of fact in respect of the period from October 2016 to November 2016.
(1) Mr Parker was subjected to considerable criticism by Mr Coleman for concealing (to use Mr Coleman' expression) his dealings with Slater and Gordon from [YLL]. I find that those dealings were not disclosed to [YLL] by Mr Parker .I do not however find that this non-disclosure constituted deliberate deception on the part of Mr Parker. I find that the explanation for this non-disclosure was as follows. First, Mr Parker had not read the NDA and thus remained unaware of the restrictions in the NDA ..Second, in October and November 2016 the informal process of collaboration between [YLL] and Harcus Sinclair, while faltering, had not been treated as abandoned by either party .in the circumstances I can understand that Mr Parker as a matter of professional courtesy, felt some embarrassment in having to tell Mr Johal that he was in fact engaged in collaboration negotiation with another firm of solicitors. I find this was the second reason for Mr Parker's failure to disclose to [YLL] his dealings with Slater & Gordon."
The status of the HS Judgment
"As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ("the trial judge"), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard.'
"..Hollington continues to embody the common law as to the effect of previous decisions: "In principle the judgment, verdict or award of another tribunal `is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties", Land Securities v Westminster City Council [1993] 1 WLR 286, 288E-F per Hoffman J.""
30. ..At para 38 of the Report, the Committee said this: "With the exceptions with which we have already dealt, an issue of fact in one civil action is seldom the same as an issue of fact in another civil action between different parties. In practice it is only likely to arise where a number of different persons are injured in the same accident by the same acts of negligence. Such cases are most conveniently dealt with by all the injured parties joining in the same action, by consolidation, or by agreeing to treat one action as a test action. It is, however, theoretically possible (and has occasionally happened) that separate actions brought by different passengers in the same vehicle have been tried at different times by different courts with different results. This is undesirable and should be avoided by one or other of the means referred to above. But we do not think that, where there are two civil actions between different plaintiffs against the same defendant or by the same plaintiff against different defendants which do raise the same issue of fact, the finding of the court should be admissible in the second action. As we have already pointed out, in civil proceedings the parties have complete liberty of choice as to how to conduct their respective cases and what material to place before the court. The thoroughness with which their case is prepared may depend upon the amount at stake in the action. We do not think it just that a party to the second action who was not a party to the first should be prejudiced by the way the party to the first action conducted his own case, or that a party to both actions, whose case was inadequately prepared or presented in the first action, should not be allowed to avail himself of the opportunity to improve upon it in the second."
31. The Committee's reasoning develops the reasoning in the first of the passages which the Board has quoted from Lord Goddard's judgment in Hollington. Their Lordships find that reasoning compelling. What is more significant, perhaps, is that Parliament must have found the reasoning convincing since the Civil Evidence Act and its Scottish counterpart made no change to this aspect of the law."
a) The material (inadmissible at trial) can at an interlocutory stage assist in identifying the evidence which can reasonably be expected to be available at trial, to which a court is entitled to have regard at the interlocutory stage; see Tulip Trading v Bitcoin Association for BSV [2023] EWHC 2347 (Ch) at [40];
b) It is evidence of the procedural and factual background of the HS Proceedings to which it is necessary to have regard for the purpose of the arguments relating to re-litigation abuse and issue estoppel.
"This has long been recognised by the Court of Appeal, at least since Gleeson v J. Wippell & Co [1977] 1 WLR 510. From the authorities, the following principles emerge:
i) One party need not be the "alter ego" of the other. But "having regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just" to permit to apply an issue estoppel: Gleeson, at p.515F.
ii) "[M]ere curiosity or concern" are not sufficient: Gleeson, at p.515C.
iii) The court asks (Resolution Chemicals Ltd v H. Lundbeck A/S [2014] RPC 5, §31-2):
a) Did the new party have "an interest in the subject matter of the previous action"?
b) To what extent can, in reality, the new party be said "to have been the party to the original proceedings" by reason of their relationship?
c) Against that background, is it "just that the new party should be bound by the outcome of the previous litigation?"
iv) The "ultimate question" is whether "it is just to allow the issue in question to be relitigated": Tyne and Wear Passenger Transport Executive (t/a Nexus) v National Union of Rail, Maritime and Transport Workers [2023] ICR 148, at §45.
v) The "process envisaged is one of evaluation rather than the application of hard-edged criteria ": Tyne and Wear, at §46.
i) That Mr Parker had not read, and was therefore in ignorance of, the restrictions contained within the HS NDA, so that he believed that he and Harcus Sinclair were free to strike out on their own or in collaboration with other firms: §91(3) of the HS Judgment.
ii) Mr Parker's non-disclosure of his dealings with S&G was not a deliberate deception. It was because of his ignorance of the restrictions, and a degree of embarrassment arising from professional courtesy: §159(1) of the HS Judgment.
iii) Subject to confidentiality, the terms of the Harcus Sinclair NDA did not prevent Mr Parker from engaging in discussions with other firms: §159(1) of the HS Judgment.
iv) The period of informal collaboration only ended in January 2017: §168(1) of the HS Judgment.
v) Mr Parker did not seek YL's permission for "Harcus Sinclair" to act for its own clients because he was unaware of any requirement to that effect. He neither read nor gave any thought to the Harcus Sinclair NDA when he signed it: §330 of the HS Judgment.
vi) None of the information in YL's confidential material provided to Harcus Sinclair was used by it in breach of its equitable duty of confidentiality: §401 of the HS Judgment.
vii) That confidential material did not act as any kind of springboard in HSLLP's formulation of the Emissions Litigation: §401 of the HS Judgment.
viii) The claim as ultimately pursued derived from HSLLP's own work and that of its Counsel, rather than any of YL's confidential materials: §402 of the HS Judgment.
"It is the third requirement, that there should be identity of parties in the two sets of proceedings, that creates the difficulty. There was identity of plaintiffs in the two proceedings; the presence of the plaintiff company as a co-plaintiff in the Denne action plainly makes no difference for this purpose. But for the doctrine of issue estoppel to apply there must also be identity of defendants (which there plainly is not) or else the existence of privity between Denne, the defendant in the earlier action, and Wippell, the defendant in the present action. Such privity, said Mr. Skone James, does exist in the present case, whereas Mr. Jacob on behalf of the plaintiff said it did not. C The question, then, is the meaning of " privity " in this context.
The requisite privity is said to be a privity either of blood, of title, or of interest: see Zeiss No. 2, at p. 910, per Lord Reid. Plainly there is no question of blood or title in this case, and so only privity of interest can be in question. One difficulty about this is the protean nature of the word " interest," a term which at times seems almost capable of meaning ~ all things to all men. Another difficulty is that, as Lord Guest pointed out in Zeiss No. 2, at p. 936, " There is a dearth of authority in England upon the question of privies."
"First, I do not think that in the phrase " privity of interest" the word " interest" can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is no party without it being suggested that the decision is binding upon him. Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase " privity of interest." Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa. Third, in the present case, I think that the matter may be tested by a question that I put to Mr. Skone James in opening. Suppose that in the Denne action the plaintiff, Miss Gleeson, had succeeded, instead of failing. Would the decision in that action that Wippell had indirectly copied the Gleeson drawings be binding on Wippell, so that if sued by Miss Gleeson, Wippell would be estopped by the Denne decision from denying liability? Mr. Skone James felt constrained to answer Yes to A that question. I say " constrained " because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. As was said by Buckley J. in Zeiss No. 3 [1970] Ch. 506, 541 (where the question was rather different) "The relationship cannot be conditional upon the character of the decision." In such a case, Wippell would be unable to deny liability to Miss Gleeson by reason of a decision reached in a case to which Wippell was not a party, and in which Wippell had no voice. Such a result would clearly be most unjust. Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way, and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant C in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him."
"content to sit back and leave others to fight his battle at no expense to himself. In my judgment that is sufficient to make him privy to the estoppel; it is "just to hold that he is bound" by the decision in the second Irish action."
"But there is a further point upon which Mr. Lightman relied, and it is the pleading in Mr. McLeod's defence which I have already quoted, referring to the Waites' proceedings to set aside the judgment. Mr. Lightman submitted that that was a plea of estoppel by Mr. McLeod and that since estoppels were mutual, it could be relied upon against Mr. McLeod. Mr. Lightman cited In re Defries; Norton v. Levy (1883) Q 48 L.T. 703, 704, where Pollock B. said: "But the defendants cannot be said to have waived the estoppel by not pleading this judgment, for it was not in existence when the pleadings closed. I think it will be found that there is an old decision that it is sufficient to plead pendency of another action in order to enable the party pleading to put the judgment in such action in evidence by way of estoppel." In my judgment, the plea in the defence was a plea of estoppel; and as I have already said, had the Waites succeeded it was a plea that would have availed Mr. McLeod. It is plain that he was asserting that although he was not a party to those proceedings, he was privy to them. He was right."
29. It can be seen that Sir Robert Megarry's test: "having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two" embraces two concepts. The first is concerned with the interest which the subsequent litigant, C, has in the subject matter of the first action. In Gleeson, Wippell was very interested, in one sense, in the subject matter of the action against Denne, as its design of shirt was impugned in that action. But that was not a sufficient interest in circumstances where there was what Sir Robert Megarry described as "a trade relationship between the two, in the course of which Denne, at Wippell's request, copied a Wippell shirt: but that is all". The second concept concerns the identity of the parties. Thus in Carl Zeiss Stiftung v Rayner & Keeler Ltd [1967] 1 AC 853 at pp.91112 Lord Reid suggested: "A party against whom a previous decision was pronounced may employ a servant or engage a third party to do something which infringes the right established in the earlier litigation and so raise the whole matter again in his interest. Then, if the other party to the earlier litigation brings an action against the servant or agent, the real defendant could be said to be the employer, who alone has the real interest, and it might well be thought unjust if he could vex his opponent by relitigating the original question by means of the device of putting forward his servant."
30 In this example the new party has no interest in the previous litigation, but would be estopped because, in effect, he represents the party in the first action. That party has the identical interest in the previous action. In Gleeson, there was no identity of parties in this sense.
31 It is not necessary for the purposes of this appeal to seek to define precisely what interest in the subject matter of the previous litigation is required. The sort of interest dismissed by Sir Robert Megarry in Gleeson in his first principle is clearly inadequate. There are passages in the judgment of Aldous L.J. in Kirin-Amgen Inc v Boehringer Mannheim GmbH [1997] F.S.R. 289 which suggest that a legal interest may be necessary in the subject matter of the previous action as opposed to a commercial interest: see pp.307309. I have not found that a particularly helpful criterion in the present case which is solely concerned with successive revocation actions. At one level Arrow and Resolution had the same legal interest in the revocation of the Patent, but that was a legal interest which they shared with all the world. If Resolution is to be bound, it must I think be possible to identify some more concrete consequence for its business which revocation of the Patent would have achieved. Unless that is so, although it can be said that Resolution could have joined the 2005 proceedings, there is no reason to hold that they should.
32 Drawing this together, in my judgment a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation.
The application for summary judgment in relation to the claim in conspiracy
103. In Digicel (St Lucia) Ltd v. Cable & Wireless Plc [2010] EWHC 774 (Ch) (Annex I), at [2] Morgan J identified the elements of the tort of unlawful means conspiracy as follows: "[t]he necessary ingredients of the conspiracy alleged are: (1) there must be a combination; (2) the combination must be to use unlawful means; (3) there must be an intention to injure a claimant by the use of those unlawful means; and (4) the use of the unlawful means must cause a claimant to suffer loss or damage as a result". See also in this regard Kuwait Oil Tanker v A Bader & ors [2000] 2 All ER (Comm) 271 at p. 312.
104. A useful summary of the key elements of the cause of action was set out in the judgment of Cockerill J in FM Capital Partners Ltd v Marino [2019] EWHC 768 (Comm) at [94];-
"The elements of the cause of action are as follows: i) A combination, arrangement or understanding between two or more people. It is not necessary for the conspirators all to join the conspiracy at the same time, but the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of: Kuwait Oil Tanker at [111]. ii) An intention to injure another individual or separate legal entity, albeit with no need for that to be the sole or predominant intention: Kuwait Oil Tanker at [108]. Moreover: a) The necessary intent can be inferred, and often will need to be inferred, from the primary facts see Kuwait Oil Tanker at [120-121], citing Bourgoin SA v Minister of Agriculture [1986] 1 QB: "[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not 'intend' the consequences or that the act was not 'aimed' at the person who, it is known, will suffer them". b) Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed [1992] 1 AC 448, 465-466 ; see also OBG v Allan [2008] 1 AC 1 at [164-165] . c) Foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention: OBG at [166]. iii) In some cases, there may be no specific intent but intention to injure results from the inevitability of loss: see Lord Nicholls at [167] in OBG v Allan , referring to cases where: "The defendant's gain and the claimant's loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort." iv) Concerted action (in the sense of active participation) consequent upon the combination or understanding: McGrath at [7.57]. v) Use of unlawful means as part of the concerted action. There is no requirement that the unlawful means themselves are independently actionable: Revenue and Customs Commissioners v Total Network [2008] 1 AC 1174 at [104]." vi) Loss being caused to the target of the conspiracy."
i) Neither Mr Parker nor Mr Moore were aware of the existence of the restriction created by Sentence 2 in the HS NDA;
ii) There was no intention to injure YLL;
iii) YLL cannot establish loss.
Mr Parker and Mr Moore not aware of the existence of the restriction
"If all the facts which make the transaction unlawful were known to the parties, as I think they were, ignorance of the law will not excuse them: see Churchill v Walton [1967] 2 AC 224 at 237 If they had sincerely believed in a factual state of affairs which, if true, would have made their actions legal, this would have afforded a defence (Kamara v Director of Public Prosecutions [1974] AC 104 at 119)."
"139. Accordingly, the conclusion I draw from the authorities is that, having regard both to the general statements of the ingredients of the tort which do not include any requirement of knowledge of unlawfulness, and to the persuasive force, even if not binding status, of Churchill v Walton and Belmont v Williams, knowledge of the unlawfulness of the means employed is not required for unlawful means conspiracy".
"171 As for TRP's appeal, I agree with Arnold LJ's conclusion at para 139, based on his analysis of the authorities, that knowledge of the unlawfulness of the means employed is not required for unlawful means conspiracy. The point was directly in issue and so decided by this court in Belmont Finance Corpn v Williams Furniture Ltd (No 2) [1980] 1 All ER 393, a decision that was not referred to by Toulson LJ in his obiter dictum in Meretz Investments NV v ACP Ltd [2008] Ch 244. The interplay between unlawful means conspiracy and inducing breach of contract (where knowledge of an unlawful breach of contract is an essential element) may merit further examination in a suitable case, but I am not convinced that many cases in which a defendant induces a breach of contract, but without knowing that he is doing so, would be capable of being reformulated as an unlawful means conspiracy".
" I see intrinsic merit in the proposition that it should be a defence to a claim in unlawful means conspiracy for the defendant to prove that he believed that the means in question were lawful. Take the facts of Belmont v Williams [1980] 1 All ER 393: it seems quite harsh that the defendants were held liable even though they had obtained counsel's opinion that the transaction would not contravene section 54, although I acknowledge that they may have had a remedy in professional negligence. Accordingly, if it were open to this court to do so, I would hold that it is a defence to a claim in unlawful means conspiracy for the defendant to prove that they believed that the means were lawful. I would stress, however, that this would require the defendant to establish a positive belief: it should not be sufficient, in my opinion, for the defendant merely to establish that they gave the matter no thought."
i) The evidence suggests that both Mr Moore and Mr Parker were aware of the existence of the NDA. Neither of them took the trouble to find out what it said.
ii) The effect of Belmont and Racing Partnership is that a sincerely held belief as to the lawfulness of the agreed course of action is not a defence to a claim in unlawful means conspiracy if the defendants knew all the relevant facts; but a sincerely held belief as to a particular state of facts which if true would render the conduct lawful is a defence. I do not consider that I can safely conclude at present that there was a sincerely held belief, sufficient to amount to a defence, that the HS NDA did not contain any restrictions on Harcus Sinclair acting for claimants other than YLL's claimants when neither Mr Parker nor Mr Moore investigated that position. Mr Moore's evidence seems to suggest assumption rather than positive belief. Similarly the passages from the HS Judgment at paragraphs [65], [91.3], and [159.4] on which Mr Warwick relied suggest that Mr Parker simply assumed that he was free to act without checking; and of course Mr Parker had signed an agreement, by which Harcus Sinclair would be bound, without having read it. Indeed, at [65] of the HS Judgment the judge found (in a different context) that Mr Parker had "in this instance and as part of his initial and informal assessment of the merits of the proposed group claim, Mr Parker paid less attention than he should have done to the legalities of the position, in terms of whether he had a right to see the Litigation Pack when it was sent to him by Mr Moore."
iii) The HS Judgment itself records that a number of the actions pleaded in paragraph 32 of the Particulars of Claim were not disclosed to or shared with YLL (for example in paragraphs [65], [125(4)], [127] and [149]) and that other actions were disclosed after the event and in circumstances where YLL understood those actions to be taking place for the purpose of the proposed collaboration between YLL and Harcus Sinclair (e.g. at [125(6)]. The 20 October 2016 email was the first occasion on which YLL learned that the steps set out in that email had been taken.
iv) This is a developing area of the law, and there are fine distinctions to be made. I cannot conduct a mini-trial, and it is apparent from the material which is before the court, including a number of the emails between Mr Parker and Mr Moore in August 2016, that there are questions for Mr Moore to answer which are relevant to his state of mind at the time. I consider that this is a case in which this difficult and developing area of law should be applied to the facts as found by the court after a full trial. I do not consider that this is an appropriate case for summary judgment.
No intention to injure YLL/no loss
i) Mr Moore and Mr Parker were acting to further their own interests in the belief that they were lawfully entitled to do so;
ii) The documents show a continued willingness to collaborate;
iii) YLL had no right to a GLO or to profit costs; whether or not a GLO would be made was a matter for the court, and a GLO is not necessarily granted to the first applicant for such an order, and indeed making too early an application can lead to a GLO being refused;
iv) Therium funded Slater & Gordon and so it was not correct to say that neither Harcus Sinclair nor Therium would have acted but for the conspiracy;
v) There was not a zero-sum situation. YLL could have and did participate in the Emissions Litigation and obtained benefits therefrom;
vi) Mr Parker continued to try to negotiate a collaboration with YLL until January 2017;
vii) Therium would not have funded YLL which it did not regard as capable;
viii) Accordingly, there was no intention to cause loss.
"I add one explanatory gloss to the above. Take a case where a defendant seeks to advance his own business by pursuing a course of conduct which he knows will, in the very nature of things, necessarily be injurious to the claimant. In other words, a case where loss to the claimant is the obverse side of the coin from gain to the defendant. The defendant's gain and the claimant's loss are, to the defendant's knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort. This accords with the approach adopted by Lord Sumner in Sorrell v Smith [1925] AC 700 , 742: 'When the whole object of the defendants' action is to capture the plaintiff's business, their gain must be his loss. How stands the matter then? The difference disappears. The defendant's success is the plaintiff's extinction, and they cannot seek the one without ensuing the other.'
"106 Also on 17 August 2016 Mr Parker had an e-mail exchange with Mr Moore. Mr Moore was growing impatient with the delay in what Mr Moore referred to as Mr Johal getting "his ducks in a row". Mr Moore concluded his e-mail (16.42) in the following terms. "I want to kick on with this and the Fairley/Johal dream team are holding it up. Alternatively I can put it to the committee on the basis that HS alone is acting and Greg/Aman can fight over the 5% introducer fee when we win!"
107 Mr Parker responded the same day in the following terms (16.44). "Like it. Would that I could bring myself to. Aman has just sent something through that he has spoken to me about but I have not read. Shall we discuss a response when you have seen it."
"As this action demonstrates, group litigation is, or at least can be a competitive business between firms of solicitors. Sentence 2 was intended to ensure that the first claimant, having provided its advice on the claim made by [YLL's] group of claimants and having had the benefit of insight into that claim, could not then strike out on its own, or in collaboration with another firm, with its own rival group of claimants."
"In cross examination, Mr Parker accepted that from a commercial perspective, lawyers contemplating bringing a group action do not want there to be other rival groups, and that lawyers contemplating group litigation want to be ahead so that they can obtain the GLO, be lead solicitor and conduct the common costs work. Mr Parker accepted, albeit reluctantly and with some qualification, that the defendant had a legitimate interest in preventing Harcus Sinclair from setting up a rival group."
"During [October and November 2016] the informal process of collaboration between the first claimant and the defendant in respect of the proposed group claim, pending agreement on the terms of a binding collaboration agreement, was faltering, but was not treated as abandoned by either party, in their dealings with each other, and had not finally been abandoned by either party. Nor had the parties, in their dealings with each other, formally given up on the prospect of collaboration. Mr Parker, by virtue of his dealings with S & G, would have known that this was a remote prospect, but he did not communicate that knowledge to the defendant."
Abuse of process
The authorities on abuse of process
"[5] The principles applicable to an application to strike out a claim on the basis that it is an abuse of process to bring a claim that could and should have been brought in previous proceedings are set out in the speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co [2002] 2 AC 1. It is, in my view, generally neither necessary nor helpful to refer to the accretion of authority before that decision, as the decision clearly sets out the principles the courts are to apply. Lord Bingham summarised the main principles in these terms, at p 31:
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
6 It is, however, helpful to refer to the judgment of Clarke LJ in Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14 at [49][53], where he summarised the principles to be derived from Johnson v Gore Wood & Co:
"49. . . . (i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process. (ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C. (iii) The burden of establishing abuse of process is on B or C or as the case may be. (iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. (v) The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process. (vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C. "
50. Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others.
51. Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all.
52. It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has been begun.
53. It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so."
"29 I also wish to add a word as to the approach that should be adopted if a similar problem arises in the future. In circumstances such as those that arose in this case, the proper course is to raise the issue with the court. Aldi did write to the court, as I have set out at para 2(xiii), but not in terms that made it clear what the court was being invited to do. WSP and Aspinwall knew of Aldi's position and were before the court on numerous occasions; they did nothing to raise it.
30 Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi's claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have inquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation.
31 However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future."
"1. This is an appeal from the Order of Arnold J. made on 13 February 2013, by which he struck out the claim of the Appellant, Gladman Commercial Properties, for damages for fraudulent or negligent misrepresentation, in connection with its aborted purchase of two adjacent properties in Dunkirk, Nottingham ("the Properties"), from the Nottinghamshire and City of Nottingham Fire Authority ("the Fire Authority") and Nottingham City Council ("the Council"). For reasons which will become apparent, I will refer to this claim as "the Second Claim". It was issued in May 2012.
2 The defendants to the Second Claim (and Respondents to this appeal) are two firms of chartered surveyors and two individuals, who were partners in or directors of the two firms. They are alleged to have falsely stated that the Properties were, together, suitable for redevelopment as student accommodation, in letters to the Appellant dated 7 August 2006, and by that means to have induced the Appellant to enter into contracts to purchase them.
3 The basis upon which the Respondents sought to strike out the Second Claim derived almost entirely from circumstances arising from earlier proceedings by the Fire Authority against the Appellant, seeking specific performance of contracts for the purchase by the Appellant of the Properties. I will refer to those proceedings as "the First Claim". The Appellant defended the First Claim, and counter-claimed against both the Fire Authority and the Council, relying on the same misrepresentations as are sued upon in the Second Claim, but alleging that the Fire Authority and the Council were liable for them, having been made by the surveyors on their behalf."
"46. The judge's conclusion that the bringing of the Second Claim amounted to an abuse was a result of his accepting two main submissions from the Respondents. The first was that the Second Claim involved essentially a re-litigation of the whole of the Appellant's case in the First Claim, at a further trial likely to last between 20 and 30 days, to expose Mr Hargreaves and Mr Bishop to a re-run of lengthy and hostile cross-examination alleging fraud, and threatening professional ruin for both of them, and to expose the Fire Authority and the Council to a re-litigation of the claim against them, if (as the judge thought likely) brought back in by the Respondents for contribution.
47 The second submission was that, ignoring this court's advice in both the Aldi Stores and the Stuart cases that a claimant wishing to preserve the opportunity to bring further claims against the same or other defendants should apply for directions at the earliest opportunity in the earlier proceedings, the Appellant had done nothing along those lines until the March 2011 Letters came to the attention of the trial judge in the First Claim, despite having concluded, on available materials, that the Respondents had been guilty of fraudulent misrepresentation, by the beginning of October 2010, six months before the date fixed for the trial.
..
49 This is, of course, not a case in which the allegedly abusive claim is being pursued against persons who were defendants to the earlier claim. It therefore falls within that category where the absence of overlap between defendants is a powerful factor against finding abuse, but not a bar: see per Thomas L.J. in the Aldi case at [6], [9] and [10]. Nonetheless, the judge plainly had these considerations in mind, since he cited the very passages in the Aldi case in which they are set out, at [151-2] of his judgment.
50 What plainly overrode this consideration in the judge's mind was the almost complete overlap between the issues in the First and Second Claims, the need for them to be litigated again over many weeks at a second trial (after fifteen days part-heard in the first trial) and, in particular, the consequential oppression of Mr Bishop and Mr Hargreaves in being required to defend their careers and professional reputations from the most serious allegations not once, but twice.
51 The judge was plainly aware that, merely because the claims against the Respondents could have been brought in the First Claim, it did not follow that they should have been. His conclusion that, in fact, they should have been flowed from his perception that this would have saved enormous cost, avoided multiplicity of litigation about the same issues, and saved Mr Bishop and Mr Hargreaves from the double jeopardy of repeated hostile cross-examination.
65 As has been repeatedly stated, the conduct of civil proceedings is a process in which the stakeholders include not merely the parties, but also other litigants waiting for their cases to be tried, and the public at large, who have an interest in the efficient and economic conduct of litigation. I consider that Arnold J was correct to treat a failure by the Appellant to follow guidelines laid down as mandatory future conduct in two successive reported decisions of this court as relevant matters pointing to a conclusion that the Second Claim constituted an abuse of the process of civil litigation.
66 The shocking consequence of permitting the Second Claim to continue would be that precisely the same issues would fall to be litigated at two successive trials involving the waste of between four and six working weeks of court time and, no doubt, millions of pounds of wasted costs and lost management time, quite apart from the double jeopardy faced by Mr Bishop and Mr Hargreaves to which I have referred. The judge's conclusion was that compliance with what were by then mandatory guidelines could have entirely avoided that wasteful duplication of time, money and effort. I agree that the failure was, as described in the Aldi case, inexcusable. An inexcusable failure to do something which would have contributed so substantially to the economy and efficiency with which this dispute might have been resolved seems to me to be a primary candidate for identification as an abuse.
67 At one point in his submissions Mr Chaisty seemed to suggest that it was purely a matter for the parties to decide whether to pursue a dispute in one or more related sets of proceedings, regardless of its effect upon the burdens facing the court. If that was ever a legitimate view (and the Henderson case strongly suggests otherwise), civil litigants need to understand that it is not now".
The "collateral attack" point is a species (or "sub-set") of abuse of process. There is no general rule preventing a party inviting a court to arrive at a decision inconsistent with that arrived at in another case. The law of estoppel per rem judicatam (and issue estoppel) define when a party is entitled to do this. Generally there must be an identification of the parties in the instant case with those in the previous case and there are exceptions. So far as questions of law are concerned, absent a decision specifically binding upon the relevant litigant, the doctrine of precedent governs when an earlier legal decision may be challenged in a later case. A party is not in general bound by a previous decision unless he has been a party or privy to it or has been expressly or implicitly covered by some order for the marshalling of litigation (Ashmore v British Coal Corpn [1990] 2. QB 338). This overlaps with the concept of vexation where the same person is faced with successive actions making the same allegations which have already been fully investigated in a previous case in which the later claimant had an opportunity to take part. This reasoning does not apply to an action against a lawyer alleging that he has mishandled a previous case."
"The following themes emerge from these cases that are relevant to the present appeal:
(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter's case [1982] AC 529, Lord Hoffman in the Arthur J S Hall case [2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood [2002] 2 AC 529. . These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter's case. Both or either interest may be engaged.
(2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus [1982] 2 Lloyds Rep 132; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case.
(3) To determine whether proceedings are abusive the court must engage in a close 'merits based' analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11.
(4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within 'the spirit of the rules', see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case [2004 Ch 1; or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose.
(5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris."
i) The claimant could not but have known that it had a claim against Threadneedle too if the claim against Mr Gersamia succeeded. It should have made an application as soon as reasonably possible after Otkritie should have appreciated Threadneedle's potential liability.
ii) However the judge had been correct, in making a broad merits based judgment, to assess the seriousness of the breach and so to seek to determine what would have happened if the necessary application had been made.
iii) Similarly the measure of prejudice suffered by Threadneedle was a relevant circumstance which the judge was bound to consider, and a party needs to show more than generalised prejudice to obtain a strike out.
iv) Threadneedle knew all about the first action and could have intervened if it wanted to.
v) It is difficult for a party which has never been sued by the claimant to complain that the commencement of a new action against it is oppressive or unjust, though it was not the case that it could never happen.
vi) It was also a relevant factor against Threadneedle in any broad merits based assessment that if it successfully struck out the second action, it not only would obtain the windfall of never having to defend Otkritie's allegations but it would also prevent Otkritie from having any access to the court for the purpose of determining its claim against Threadneedle.
vii) Each case must turn on a broad merits-based assessment of the facts in that case.
"So far as concerns publication of the Announcement, Mr Tinkler is complaining about precisely the same acts in the [defamation claim] as he did in the [commercial court claim]. The only difference is that in the [commercial court claim], the company was being held vicariously liable for the actions of the [directors] and in the [defamation claim] he seeks to establish personal liability of the [directors].
"In summary, the power to strike out for abuse of process is a flexible power unconfined by narrow rules. It exists to uphold the private interest in finality of litigation and the public interest in the proper administration of justice, and can be deployed for either or both purposes. It is a serious thing to strike out a claim and the power must be used with care with a view to achieving substantial justice in a case where the court considers that its processes are being misused. It will be a rare case where the re-litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, but where the court finds such a situation abusive, it must act."
" It is the rump of the original defamation action and concerns just one element in a sequence of many interconnected elements, all of which (not least the RNS Announcement itself) were exhaustively examined in the [commercial court] Judgment, whose findings have been effectively recognised by both parties in their pleadings as binding. In both sets of proceedings Mr Tinkler is making the same essential complaint about the same individuals. On the specific facts of this case, that amounts to a collateral attack on the previous findings. These features bring the case into the rare group where litigation is abusive although it is not formally between the same parties or their privies."
The parties' submissions
i) He submitted that YLL should have told the court (1) that there was a possibility of a claim against Harcus Sinclair in conspiracy; (2) that accordingly there was the possibility of a claim against Therium as joint tortfeasor on the same facts; and (3) that the allegations to be made against Therium would also need to be made against Harcus Sinclair and Mr Parker. Mr Warwick pointed to a letter from YLL dated 21 April 2023 seeking permission to use documents from the HS Proceedings in which it was said that it was fortuitous that the claim against Therium was being brought in separate proceedings from the HS Proceedings, and that the claim could have been advanced by way of amendment to the HS Proceedings.
ii) He submitted that there was no excuse for the failure to comply with the Aldi guidelines and that if they had been complied with, the court could and would have made case management decisions which could have managed the case and how claims against other parties should be managed without imperilling the expedited timetable. There was already an order for a split trial and other issues could have been split off once the issues against Harcus Sinclair had been dealt with;
iii) All the claims should have been dealt with in a single trial; as in Gladman the matters were "crying out for a single trial". As regards the public interest, the same primary facts would be gone into a second time with great expense and court resource for the second trial, and involving the same witnesses and same documents.
iv) The court would have to form a view of the witnesses again, which might bring the administration of justice into disrepute. In particular, Mr Parker had been cross examined once and his credibility would be in issue again, now facing a claim for conspiracy.
v) The claim was also oppressive to Harcus Sinclair who were accused again by a sidewind; and there may be an issue of bringing in Harcus Sinclair again by a sidewind by way of a contribution claim.
vi) The claim is also oppressive to Mr Moore, a solicitor who would again be subjected to cross examination a second time on his conduct, but through a different lens.
vii) It was also submitted that counsel who had given evidence at the trial of the HS Proceedings would have to give evidence again.
viii) There has also been a not immaterial lapse of time, Mr Moore and Mr Mayer are no longer employed by Therium, and YLL has greater knowledge than Therium as a result of having pursued the HS Proceedings in the interim period. There will be costs and uncertainty associated with seeking disclosure of material which is protected by orders under CPR 5.4C.
ix) There is a risk of irreconcilable judgments. In particular it is core to the conspiracy claim that there was secrecy or concealment about what was going on. Paragraph 48 of the Particulars of Claim allege that information was withheld from YLL by both Therium and Harcus Sinclair so as to ensure that the claimant was unaware that Therium and Harcus Sinclair were preparing an independent group action. That is said to be irreconcilable with the HS Judgment and in particular with paragraphs 125(8), 159(1) and (2) and 168 thereof (the effect of all of which are set out above).
x) Similarly the plea in relation to breach of confidence and misuse of confidential information was irreconcilable with paragraphs [401] and [402] of the HS Judgment.
xi) Thus it was submitted that the current claim is a collateral attack on the HS Judgment, which is a strong indicator of abuse, and that it would be inequitable and grossly unfair for YLL to escape the findings in the HS Judgment in favour of Harcus Sinclair when bringing a claim against an alleged co-conspirator, in which claim the same allegations are central.
i) In relation to the points arising from the Aldi guidelines, Mr Ahlquist said that the essential background was the way in which the expedited trial came about. YLL had not in fact made a claim in conspiracy against Harcus Sinclair, which would obviously have been relevant to the relief sought if it had been made. It was wrong to say that there was some decision made by YLL not to plead conspiracy or not to tell the court that it thought it had a claim against Therium. The reality was that Harcus Sinclair and YLL were both doing their best to put all relevant matters before the court, but that was extremely difficult given the way in which the claim arose and the extremely truncated timetable; by way of example, the issue of restraint of trade arose only in closing submissions.
ii) In particular, Mr Ahlquist pointed out that disclosure was taking place not only up to but also during trial. Mr Moore's witness statement and indeed other witness evidence was served on 13 September 2017, disclosure took place (in the particular form set out in paragraph [28] of the HS Judgment and recorded in paragraph [93] above) from 16 September, with specific disclosure applications being determined on 15 and 26 September 2017, and the trial started on 27 September 2017. Mr Johal's evidence is that it was simply unfeasible for YLL even to consider claims against third parties during August/September 2017, let alone articulate those claims, and for this reason his evidence was that YLL had not acted tactically. The letter of 21 April 2023 referring to it being fortuitous that there were two claims, which was relied on by Therium, simply says that the claims could have been raised by way of amendment in the HS Proceedings (sc. in different circumstances), so that there is no issue of abusive collateral use; the letter does not say that YLL considered making such an application.
iii) Further, while the Judge had ordered, in the particular circumstance described in paragraphs [21]-[22] above, that all issues as between Harcus Sinclair and YLL must be decided, he did not make any directions as to any claims between YLL and other potential parties.
iv) Further, Mr Ahlquist submitted that even if it had been practicable to give an Aldi warning, the suggestion that there would have been a single trial was fanciful. The purpose of having the very truncated timetable during vacation was so that the GLO Application could be determined. If, once sufficient disclosure and witness evidence had been put forward, YLL had decided to bring a claim against Therium and had notified the judge, there was nothing that the judge could have done to bring about a single trial in the timetable required for the Emissions Litigation. Therium had not suggested what directions the court would have made. Further, if Therium's submission was that the judge would have put issues against Therium off to a further trial, then Therium has suffered no prejudice.
v) While accepting that the Aldi guidelines are mandatory, it was submitted that failure to comply with those guidelines is one facet of the broad merits based judgment which the court is required to carry out.
vi) Further, the HS Proceedings are still stayed, and there will still have to be a further trial of issues of causation and loss as against Harcus Sinclair. That was necessary because until the Emissions Litigation was finalised, it could not be known what the loss was.
vii) As regards witnesses:
a) Neither Mr Parker nor Harcus Sinclair are parties to the current proceedings, and it would be a matter for Mr Parker whether he wished to give evidence;
b) Mr Moore's witness statement in the HS Proceedings specifically stated that it was not a full account of his involvement, and the CIL/Therium agreement was not in evidence in the HS Proceedings; while it is accepted that there is some overlap between the areas on which Mr Moore was previously cross examined and the areas in which it will be necessary to cross examine him in these proceedings, it is not manifestly oppressive to him to cross examine him on the issues in these proceedings, and unlike Gladman, there is no question of a multi-week trial; the whole trial of the HS Proceedings took 4 days.
c) Counsel would not be required to give evidence because the current claim does not rely on the use of the advice and draft pleadings to produce the pleadings which were used by the HS or Slater & Gordon claimants; it is the insight provided by the advice and pleadings which is relied on;
viii) The claim does not allege dishonesty, but that what was done was done without reference to, or notice to, YLL.
"Relitigating the point [as to ownership] would neither be manifestly unfair to them, nor bring the administration of justice into disrepute. That would remain the position even if the Gibraltar court reached a different conclusion as to the ownership of the Collection at the relevant time; the interests of justice would be served, provided that the court's judgment was correct, having regard to the evidence adduced before it".
CIL's abuse of process case.
Conclusion
Note 1 An order was made on 13 February 2023 in the HS Proceedings permitting use of the unredacted HS Judgment in these proceedings. [Back] Note 2 An order was made on 7 December 2023 granting permission for Harcus Sinclair UK Limited, Mr Parker and others to be present at the hearing by their representatives. I have been informed that Harcus Sinclair LLP is in liquidation. It was not present at the hearing of these applications [Back] Note 3 CIL did not seek to argue that there was any issue estoppel as between YLL and CIL. [Back]
