Class-action pioneer Walter Merricks CBE has been ordered to make an interim payment of £70,000 towards defendants’ costs run up during his abortive attempt to take over leadership of a claim over allegedly inflated rail fares. Merricks, a former chief financial ombudsman who led the Mastercard class action, announced his intention to take over as class representative in the Govia Thameslink litigation following the death of the original representative, David Boyle, last year.
Merricks withdrew his application in January this year because he was unable to secure after-the-event insurance.
In the latest twist to David Courtney Boyle v Govia Thameslink, which was certified by the Competition Appeal Tribunal in 2022, the defendants and Boyle’s estate applied for £223,000 in costs which they said they had been forced to incur following a spate of ‘remarkable activity’ caused by Merricks’ intervention. This included correspondence arising from a clash between Merricks and the law firm acting in the case.
Merricks and his funder LCM 'engaged in a wide-ranging, disproportionate campaign, demanding increasing amounts of information from the defendants (and then abandoning some demands) whilst simultaneously refusing to provide obviously relevant information', the Competition Appeal Tribunal heard.
Merricks said a costs order would be 'grossly unjust'. His decision to apply 'was not an “event” which costs should follow,' he argued. Rather, his position was similar to that of a pre-action litigant investigating the case.
Granting a non-party costs order - which is understood will be met by LCM - three judges agreed it is 'beyond argument' that 'any reasonable costs incurred by the defendants should be borne by Mr Merricks'. Likewise, 'to the extent that Mr Merricks’ involvement actually caused the incurring of reasonable and proportionate costs to the [Boyle] estate', Merricks should bear them.
However it noted that the totals claimed - £223,278 for the defendants and £114,417 for the estate - were 'considerably higher than we would expect to be recoverable on an assessment on the standard basis'. The judges ordered interim payments on account of £45,000 for the defendants and £30,000 for the estate.
The wider case is stayed while a new class representative is found. If the correct application is not filed by 4pm on 24 July, the proceedings will be decertified and the collective proceedings order revoked.
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