London, EC4A 1NL
B e f o r e :
|THE RBS RIGHTS ISSUE LITIGATION|
Jonathan Adkin QC (instructed by Hausfeld & Co LLP) for the First Respondent David Head QC (instructed by K & L Gates LLP) for the Second Respondent
Hearing date: Wednesday 3rd May 2017
Crown Copyright ©
The Hon. Mr Justice Hildyard:
Subject matter of this judgment
(1) In December 2016 the Defendants reached a full and final settlement ("the December Settlements") with effectively all of the then claimants in the proceedings save for the claimants in the SG Group (referred to interchangeably as "the SG Claimants" or the "SG Group"). Following a request from the SG Group, the proceedings were stayed until 11 January 2017. Since the stay, the SG Claimants have served Re-Amended Particulars of Claim which significantly reduce the scope of the action, which nevertheless remains a complex and substantial one.
(2) As a result of the December Settlements, and as the only remaining claimants, the SG Claimants became solely liable in respect of an order for payment of the Defendants' costs of the proceedings from the date of the December Settlements until the end of the case. These are considerable: the Defendants' estimate is that they will have incurred approximately £25 million from the date of the December Settlements to the end of Trial 1. In relation to the costs incurred prior to the December Settlements, the SG Claimants remained liable for 100% of the adverse costs of the claims brought against the individual Director Defendants and a pro rata share (approximately 23%) of the costs of the claim against the Defendants.
(3) As I noted in my March 2017 judgment (in para. 65), those developments represented a "watershed" in the proceedings and altered the profile of the risk relating to recovery of any costs order in favour of the Defendants if their defence ultimately succeeds.
(4) Although the SG Claimants contend that there are also tactical considerations at work which in reality have prompted this application, this altered risk, along with confirmation from the SG Group that it required further ATE insurance, prompted the Defendants to focus on whether to make a security for costs application (and if so against whom).
(5) Accordingly, the Defendants applied for an order (i) that the SG Claimants provide the names and addresses of any third parties who, by virtue of having contributed or agreed to contribute to the costs of the proceedings in return for a share of any recovery, fall within CPR 25.14(2)(b), and (ii) that a copy of any ATE insurance policy held by the SG Claimants be supplied, or alternatively the Claimants confirm that neither the SG Claimants nor any persons falling within CPR 25.14(2)(b) would seek to rely upon such policy in opposition to any application for security for costs. The application was the prelude to a threatened application for security for costs.
(6) As indicated above, my judgment on the Defendants' application was formally delivered (after pre-circulation in the usual way) on 9 March 2017. The element of the application seeking disclosure of any ATE policy was dismissed, but the element seeking the identification of funders who would fall within CPR 25.14(2)(b) was granted. In granting that part of the application, I expressly stated that I intended to give no encouragement to any subsequent application for security, and I observed at paragraphs 82(2) and (3) of my March 2017 judgment as follows:
"(2) My present overall assessment is that an application against the funders for security for costs, even if limited to costs post- December 2016, would face difficult hurdles and time constraints; and more transparency and reassurance as to their standing, even if not complete, might well tip any balance firmly against any further order.(3) I therefore offer no encouragement to an application. I consider the Court would be reluctant to accede if further consideration showed it to imperil the trial or its fair preparation, and which might be entirely unnecessary if the funders are substantial or suitable ATE insurance is in place."
(7) Following the making of the Order, the SG Group disclosed through their solicitors the identity of their funders: Hunnewell BVI, LNCP and Manx Capital Partners Limited ("Manx"). Shortly after this information was obtained by the Defendants, the Defendants issued the present applications for security for costs against Hunnewell BVI and LNCP.
(8) Since the applications were issued and the initial round of evidence was exchanged, there has been a further significant development in the litigation. Around 42% by claim value of the SG Claimants have now settled their claims against the Defendants ("the April Settlements"). As a result of these April Settlements, the remaining SG Claimants became solely liable for the adverse costs of the proceedings from 27 April 2017 to the end of Trial 1 (estimated to be £10.9 million), and remain liable for (i) 58% of the adverse costs incurred between the December Settlements and 27 April 2017 (namely £8.4 million), and (ii) 58% of the SG Group's share of the adverse costs incurred by the Defendants prior to the December Settlements (namely £16.2 million). The total potential adverse costs liability of the remaining SG Claimants is therefore estimated to be around £35.5 million. These figures are all exclusive of VAT.
(9) Thus, a consequence of the April Settlements is that the costs liability of the settling Claimants in the SG Group has been resolved, but that the costs liability of the remaining SG Claimants remains at large. This has resulted in the Defendants seeking security in the reduced sum of £11.6 million, to reflect the fact that pursuant to the April Settlements, any adverse costs attributable to the settling Claimants up to 26 April 2017 are excluded from the SG Group's adverse costs exposure.
(10) A further and important consequence of the April Settlements is that they will result in substantial payments being received on behalf of those settling Claimants by the funders. Hunnewell BVI will be entitled to receive a portion which (it is accepted) exceeds the security sought and which also exceeds the amount in which Hunnewell BVI has funded the litigation. The amount must therefore exceed some £15.5 million. Similarly, LNCP will be entitled to receive something over £5 million, which also exceeds the amounts it has funded. I understand that actual payment of these amounts is likely to be made some time in June or July 2017.
The jurisdiction of the Court and principles guiding the exercise of discretion
"(1)Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in-
(a) the civil division of the Court of Appeal;
(b) the High Court, and
(c) any county court,
shall be in the discretion of the court.
(2) Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings...
(3) The court shall have full power to determine by whom and to what extent the costs are to be paid."
"In the vast majority of cases, it would no doubt be unjust to make an award of costs against a person who is not a party to the relevant proceedings. But, as the facts of the present case show, that is not always so...It is surely consistent with the interests of justice that, in such a case, the court's jurisdiction to make a global order for costs relating to both sets of proceedings should not be fettered by the imposition of an implied limitation upon that Jurisdiction."
"....the exercise of this jurisdiction becomes over complicated by reference to authority. Indeed I think it has become overburdened. Section 51 confers a discretion not confined by specific limitations. While the learning is, with respect, important in indicating the kind of considerations upon which the court will focus, it must not be treated as a rule-book."
"…only immutable principle is that the discretion must be exercised justly".
"Although costs orders against non-parties are to be regarded as "exceptional", exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such "exceptional" case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact- specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against."
Jurisdiction to order Security for Costs against non-party
(1) Whether it is sufficiently clear that the non-party is to be treated as having in effect become in all but name a real party motivated to participate by its commercial interest in the litigation;
(2) Whether there is a real risk of non-payment such that security against the contingent liability should be granted;
(3) Whether there is a sufficient link between the funding and the costs for which recovery is sought to make it just for an order to be made;
(4) Whether a risk of liability for costs has sufficiently been brought home to the non- party, either by express warning, or by reference to what a person in its position should be taken to appreciate as to the inherent risks;
(5) Whether there are factors, including for example, delay in the making of an application for security or likely adverse effects such as to tip the overall balance against making an order.
"By the same token that Phillips LJ in the Murphy case  1 WLR 1591 found legal expenses insurance to be in the public interest…so too in my judgment the pure funding of litigation (whether of claims or defences) ought generally to be regarded as being in the public interest providing only and always that its essential motivation is to enable the party funded to litigate what the funders perceive to be a genuine case. This approach ought not to be confined merely to relatives moved by natural affection but rather should extend to anyone—not least those responding to a fund-raising campaign— whose contribution (whether described as charitable, philanthropic, altruistic or merely sympathetic) is animated by a wish to ensure that a genuine dispute is not lost by default (or, as concerned Lord Portsmouth here, inadequately contested)."
"Where, however, the non-party not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party's costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is "the real party" to the litigation…
In the light of these authorities their Lordships would hold that, generally speaking, where a non-party promotes and funds proceedings by an insolvent company solely or substantially for his own financial benefit, he should be liable for the costs if his claim or defence or appeal fails. As explained in the cases, however, that is not to say that orders will invariably be made in such cases, particularly, say, where the non-party is himself a director or liquidator who can realistically be regarded as acting rather in the interests of the company (and more especially its shareholders and creditors) than in his own interests."
"While we do not dispute the importance of helping to ensure access to justice, we consider that the judge was wrong not to give appropriate weight to the rule that costs should normally follow the event...In our judgment the existence of this rule, and the reasons given to justify its existence, render it unjust that a funder who purchases a stake in an action for a commercial motive should be protected from all liability for the costs of the opposing party if the funded party fails in the action. Somehow or other a just solution must be devised whereby on the one hand a successful opponent is not denied all his costs while on the other hand commercial funders who provide help to those seeking access to justice which they could not otherwise afford are not deterred by the fear of disproportionate costs consequences if the litigation they are supporting does not succeed.
The approach that we are about to commend will not be appropriate in the case of a funding agreement that falls foul of the policy considerations that render an agreement champertous. A funder who enters into such an agreement will be likely to render himself liable for the opposing party's costs without limit should the claim fail. The present case has not been shown to fall into that category. Our approach is designed to cater for the commercial funder who is financing part of the costs of the litigation in a manner which facilitates access to justice and which is not otherwise objectionable. Such funding will leave the claimant as the party primarily interested in the result of the litigation and the party in control of the conduct of the litigation.
We consider that a professional funder, who finances part of a claimant's costs of litigation, should be potentially liable for the costs of the opposing party to the extent of the funding provided. The effect of this will, of course, be that, if the funding is provided on a contingency basis of recovery, the funder will require, as the price of the funding, a greater share of the recovery should the claim succeed. In the individual case, the net recovery of a successful claimant will be diminished. While this is unfortunate, it seems to us that it is a cost that the impecunious claimant can reasonably be expected to bear. Overall justice will be better served than leaving defendants in a position where they have no right to recover any costs from a professional funder whose intervention has permitted the continuation of a claim which has ultimately proved to be without merit." (Emphasis added)
"But even if deliberate reticence on the part of a respondent is not a breach of CPR Pt 1.3 a court can and should take account of deliberate reticence as part of the overall picture. Any evaluation has to be made on the totality of the evidence before the court; part of that totality is the absence of relevant evidence from the only party who is able to provide it. If, therefore, there were to be a practice of the Commercial Court (as to which we cannot express a view from our own experience) that security for costs will often be granted against a foreign company who is not obliged to publish accounts, has no discernible assets and declines to reveal anything about its financial position, our view is that the practice is a sound one and, as Lewison LJ noted, it is an important point of practice which should either be upheld or rejected at appellate level. We would uphold it."
"[Counsel] submitted that the proper question was "but for the exceptional circumstances would the costs sought have been incurred". I do not accept that submission. I accept that the costs claimed must have been caused to some extent by the non-party against whom the order is sought otherwise it is hard to envisage any circumstance in which it could be just to order the non- party to pay them. But I do not see why they must be caused by all the factors which render the case exceptional. For example, one of the factors likely to be present in most, if not all, cases where an order [under s. 51] is made is that the litigation was for the benefit of the non-party; but that is no reason to require that all the costs were incurred in obtaining that benefit."
"…it cannot be right to make an order under s. 51(3) of the 1981 Act unless the court is satisfied that the conduct of the person against whom the order is to be made has been causative of the costs which have been incurred by the person seeking the order. There must be a sufficient causal link between the person who is to pay the costs and the incurring of those costs. It is necessary to determine whether the conduct complained of is really an effective cause of the costs incurred."
"Even if the applicant can provide a good reason for not joining the non-party against whom he has a valid cause of action, he should warn the non-party at the earliest opportunity of the possibility that he may seek to apply for costs against him."
"28 Delay in making the application is one of the circumstances to which the court will have regard when exercising its discretion to order security. The court may refuse to order security where delay has deprived the claimant of the time to collect the security, or led the claimant to act to his detriment or may cause hardship in the future costs of the action. The court may deprive a tardy applicant of security for some or all of his past costs or restrict the security to future costs (see CPR 25.12.6). The question of delay must be assessed at moment when the application is made, although of course the court must take into account the impact of an order at the time it is made. That is because, as the Court of Appeal said in Prince Radu of Hohernzollern v Houston  EWCA Civ 1575 (cited at White Book p 823–4), the order for security for costs comes with a sanction which gives a claimant a choice whether to put up security and go on or to withdraw his claim; that choice is meant to be a proper choice, and the claimant is to have a generous time with which to comply with it. As Waller LJ pointed out (at ), the making of an order for security for costs is not intended to be a weapon whereby a defendant can obtain a speedy summary judgment without a trial.
36…The later the order for security is made and the more a claimant has spent on legal costs before that date (or in any case before the application) the smaller the opportunity to the claimant to have a real choice. Here the Claimant had already invested over £150,000 in his claim even before D3 was joined, and doubtless a great deal more since, and his choice would therefore not be between putting up security as the price of continuing or else giving up, but doing so as the price of not only continuing but saving his past investment. That is inevitable when the order sought is being made so close to trial. Each case will always turn on its own facts but the absence of evidence about his means would not persuade me, if I were exercising my discretion to order security myself, that it was just to do so in all the circumstances."
The form of Orders sought
The position in relation to Hunnewell BVI
(1) First, Hunnewell BVI contends that it is well able to meet any award for costs; and that in any event there has been no demonstration to the contrary. It relies on the fact that the SG Claimants who have now settled their claims with the Defendants represent around 40% by value of the SG Group Claimants. This will apparently result in a substantial payment being made from which Hunnewell BVI will be entitled to receive sums that exceed the amount of security sought and also exceed the amount in which it has funded the SG Claimants. Hunnewell BVI submits that it will therefore undoubtedly have the wherewithal to meet any costs award that might be made against it at the end of trial, and there is no real risk that such an award would go unsatisfied.
(2) Second, Hunnewell BVI submits that the application has been made very late in the day, and too late to warrant any order for security now being made.
(3) Third, Hunnewell BVI submits that the quantum of the security sought, even in its reduced amount, is in any event excessive.
Hunnewell BVI's financial position
"It has an active asset management business, alongside its litigation funding arm, which generates several million dollars of revenue per year."
"to release highly confidential and commercially sensitive information into the public domain in circumstances where it has real, I would say justifiable, concerns about the design of an intent behind the Application".
"in excess of: (i) the full quantum of security sought by the Defendants in the Application; and (ii) Hunnewell BVI's investment in the underlying litigation".
"Any risk perceived by the Defendants that Hunnewell BVI would not be able to satisfy a costs order against it and concerns about its financial wherewithal are assuaged entirely by the effect of the Settlement".
"If Hunnewell were a claimant itself, to obtain an order for security on the grounds of impecuniosity the burden would be on the Defendants to show that "there is reason to believe that it will be unable to pay the Defendants' costs if ordered to do so" under CPR 25.13(2)(c); and to obtain an order on the grounds of risk of evasion of a costs order the burden would be on the Defendants to show that Hunnewell had "taken steps in relation to [its] assets that would make it difficult to enforce an order for costs against [it]" under CPR 25.13(2)(g). There is no proper basis for reversing the burden in applications under CPR 25.14. The payment Hunnewell will receive resulting from the partial settlement of the SG Group's claims makes it plain there is good reason to believe it would have the wherewithal to meet a costs order, and the Defendants have adduced no evidence to undermine that position. Nor have the Defendants adduced any evidence to show that Hunnewell has taken steps to make it difficult to enforce a costs order against it."
(1) It is now clear that the ATE insurance the remaining SG Claimants claimed to have in place (the terms of which remain unknown to the Defendants) is not sufficient to cover a potential adverse costs order against them (that is, the remaining SG Claimants). As matters presently stand, the individual remaining SG Claimants will therefore have to put their hands in their own pockets for the outstanding amounts not covered by ATE insurance;
(2) A proportion of the total adverse costs liability of the remaining SG Claimants (which the Defendants say is around £35.5 million) would fall upon individual retail claimants of limited means, some of whom are abroad;
(3) Whilst the Defendants have not performed a detailed analysis of the financial position of each of the remaining SG Claimants, the information which the Defendants have been provided with by Signature Litigation LLP about the individual retail members, in the course of these proceedings, indicates that there is a real risk of non-payment:
i. Mr Huntley at paragraph 28 of his second witness statement, highlighted the fact that "many of the individuals in question are individuals with past or present modest incomes, living modestly and with modest savings and pensions, at best…very few of those retail investors enjoy or can possibly hope to enjoy the standard of living and security enjoyed by the professionals [involved in this litigation]…to my knowledge significant numbers of the retail Claimants have died during the course of these proceedings…"
ii. Mr Connerty of Signature Litigation LLP at paragraphs 15 and 17 of his second witness statement, confirmed that "35% of the "retail" claimants are pensioners, 15% are now unfortunately deceased, 20% live overseas and 8% comprise what are described as blind trusts."
1) Hunnewell BVI, because it has now funded the litigation to this point (to the tune of £15.5 million), and if security were ordered at this late stage it would face an unfair choice between giving security or having the proceedings stayed and its prior funding wasted;
2) the remaining SG Claimants, because if Hunnewell BVI did not give security they would be faced with the prospect of their action being stayed on the eve of trial, with enormous wasted costs, and no meaningful opportunity to find alternative funding in the meantime. Mr Adkin submits that the delay alone would render an order for security unjust.
"the occasion for a rather changed risk profile as well as arithmetically increased exposure."
Revelation of the lack of ATE cover
(1) In his fifth witness statement dated 22nd November 2013, Mr Steven Baker of Bird & Bird (solicitors for the predecessor of the SG Group, called the 'BB Group') stated that
"the Action Group has always proceeded, and presented its litigation strategy to its members, on the basis that it would have adverse costs cover to cover all plausible costs liabilities. Its members have not anticipated that they might be liable for adverse costs over any adverse costs cover."
(2) On 28 March 2014, after some doubt about coverage had been raised, the SG Group issued a press release on its website stating that it had secured a £23.5 million package of ATE and indemnity cover which would provide protection for its members against the possibility of an adverse costs order in the litigation;
(3) That statement was then repeated in further press releases on the Action Group's website on 9 April 2014 and 1 May 2014;
(4) In an article dated 1 November 2015 in the 'Herald Scotland', the SG Group was reported as having confirmed that "it paid a multi-million premium for ATE insurance last week and has £15.5 million of funding in place"; and
(5) Consistent with these public statements the wording of the membership forms issued by the SG Group (at least in 2016) inviting joinder made no mention of any potential liability for costs but stated that "costs associated with any agreements made by the Group on [a member's] behalf including contingent fees, funding costs and disbursements" could be deducted from the proceeds of the member's claim.
Conclusion as to Hunnewell BVI
The position in relation to LNCP
"Rather than see the action fail in this way, LNCP reluctantly indicated a preparedness to provide £5 million towards the Claimants' legal costs of the Litigation.
The Action Group offered terms which were accepted by LNCP in mid- November 2016. The detailed terms are necessarily confidential to the parties, but I consider that they are much less generous to LNCP than would be demanded by many commercial funders who may, for example, take a percentage of any recoveries made…
Shortly afterwards, the other Claimant groups settled with the Defendants. As a consequence of being the sole remaining Claimant group, the solicitors for the Action Group undertook a revision of its legal costs forecasts. This was necessary given the new landscape of the litigation. The Action Group told me that they were speaking to various parties about providing the additional funding required until the end of Trial One and asked whether the Related Claimants could organise a bridging facility pending the conclusion of other arrangements and LNCP did so.
By mid March 2017, LNCP had paid in various tranches the £5 million pursuant to the terms accepted in November 2016, but had not paid anything under the bridging facility. Without wishing to go into confidential and commercially sensitive arrangements, the Action Group required additional funding on a permanent basis, and I considered that the Related Claimants were the only realistic source of funding available on terms that would be workable for the Action Group. I believed that the Related Claimants were, therefore, faced with the simple but stark choice of accepting (what we considered to be) a low offer by RBS, or offering to pay additional monies in respect of the Claimants' legal costs.
After some discussions, the bridging facility was withdrawn and Manx offered terms which were accepted by the Action Group. Again, the detailed terms are necessarily confidential to the parties, but I can say that finance provided by Manx will be repaid if, and only of, a substantial threshold recovery has been achieved. In other words, Manx will get its money back in certain circumstances only. In those circumstances it will receive the return of capital, without any additional return or uplift.
While LNCP and Manx have committed to contribute more than would be the Related Claimants' proportionate share of costs to be paid, they have done so because of the Related Claimants' interests in the litigation. Other Claimants may be riding on their coat-tails financially, but I do not consider that transforms a litigant to being an entity in the business of commercial litigation funding."
"LNCP would not have dreamt of making monies available had it not been for the involvement of the Related Claimants".
"did not anticipate or expect that LNCP would thereby become liable for a non- party costs order or security for costs."
(1) Unlikelihood of a Section 51 order being made against LNCP in due course;
(2) No security justified or necessary at this juncture; and
"In other words, while perhaps not a "pure funder" case, this case is closer to Hamilton than Arkin (above)."
(1) The fact of lateness is plain and obvious; the new landscape is not sufficient to excuse the change of tack; the sudden focus on the lack of ATE cover is not a basis for visiting similar liability on LNCP, which cannot be criticised for its apparent lack or any deficiency; and the application smacks of a tactical ploy to apply further pressure on the remaining SG Claimants (including the Related Claimants) to settle.
(2) As to prejudice:
a. In the case of LNCP, Ms Revitt confirmed that if security is ordered, LNCP will have to consider its position and the options available to it, inevitably involving further discussion with the remaining SG Claimants. This is hardly surprising, given that an order for security would effectively compel LNCP to provide funding beyond its current commitment, in circumstances where timing and sanctions for non-compliance remain uncertain, potentially requiring new or amended terms as between LNCP and the remaining SG Claimants, and where there is little or no time remaining before trial to carry out such discussions and/or negotiations.
b. Given the lateness of the Application against it, it is difficult to see that LNCP will have adequate time (still less a "generous time") amounting to a "proper choice" as to whether to comply with the order for security following its discussions with the remaining SG Claimants, as required in Re Bennet Invest (above).
c. An order will also inevitably cause substantial prejudice to the remaining SG Claimants, not least because they have already expended huge sums in this litigation (albeit not as large as those of the Defendants, as to which see below) and because the start date and/or the progress of the trial might well be threatened. There is a description in Mr Huntley's fourth witness statement of the potential prejudice likely to be suffered by the SG Claimants. The remaining SG Claimants have made clear (by their counsel at the hearing on 23 March) their desire to be heard on the question of sanctions, should that issue become relevant.
"the terms of its funding arrangements with the SG Group are not dissimilar to the terms of the funding arrangements between the SG Group and LNCP."
"quite deliberately seeking to profit, and profit handsomely, from the claims of all the other claimants, including the now 8,650 remaining individual claimants, [comprising] 35% pensioners and 15% deceased…
So what LNCP is doing, it's not for charity, it's doing it for commercial profit. Indeed, it's doing it on an enterprise where it will already be getting back more than its stake…
…the fact that it is not its regular line of business, which appears to be the position on the evidence, means only, as you would expect from a business run by a successful entrepreneur, that a good commercial opportunity to make money has been spotted."
"It has simply been impossible for us to give a warning before we knew who they were and by the time we did know who they were, they were well aware of the point in any event."
"because it is quite clear from the evidence that's been put in by LNCP that the funding from LNCP has been why the Signature group, the SG Group, has been able to and are continuing with these proceedings…That conduct has been the direct and effective cause of the costs incurred by the Defendants since December 2016…"
(1) It is unlikely that a funding agreement would not deal with the eventuality of being required to provide security; in any event,
(2) It is difficult to see how there could be relevant prejudice to LNCP in it securing the liability which it is likely to have should the Defendants succeed in these proceedings.
My assessment of the position and decision in relation to LNCP
"…the touchstone (of reasonable and proportionate costs) is not the amount of costs which it was in a party's best interests to incur but the lowest amount which it could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances."
That note continues:
"expenditure over and above that level would be for a party's own account and not recoverable from the other party."
(1) The Defendants instructed a total of 13 Counsel (including three QCs) during the period December 2016 to February 2017, compared to four (including one QC) instructed for the SG Claimants: there were three hearings. The Defendants' 132- page Amended Defence served on 10 February 2017 was signed by a total of nine Counsel. Counsel's fees for the 11-month period after December 2016 are stated to exceed £6 million.
(2) The fees for experts in giving evidence in the same period are stated to exceed £350,000.
(3) Profit costs in respect of the attendance of fee earners at trial are stated to be £5,571,500 on top of pre-trial preparation in the period after the December Settlements costed at £2,568,275.