Case No: HT-13-304
Neutral Citation Number: [2013] EWHC 3273 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29 October 2013

Before:

MR JUSTICE AKENHEAD
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Between:

	FINESSE GROUP LIMITED	Claimant	
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	BRYSON PRODUCTS (a firm)	 First Defendant	
	- and -		
	BOSTIK LIMITED	Second Defendant	

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Allen Dyer (instructed by Buss Murton Law LLP) for the Claimant
Michael Taylor (instructed by Blake Lapthorn) for the First Defendant
Olivia Chaffin-Laird (instructed by The Smith Partnership) for the Second Defendant

Hearing date: 25 October 2013
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JUDGMENT
Mr Justice Akenhead: 
1.	This is the first case management conference in the TCC in this case. It raises a cornucopia of issues and applications ranging from applications to strike out the Claim and re-amend the Particulars of Claim to questions as to whether this case should in some way be considered a test case, whether it should be transferred to the Central London County Court for a trial by a TCC designated judge there and costs budget ramifications. It is not an unfair comment that, since the issue of these proceedings in the Tunbridge Wells County Court and its later transfer here, this case has not proceeded effectively or well.
The Factual Background
2.	What follows should not be treated as binding factual findings, given that they are based on what are still untested assertions made by one party or the other.
3.	Finesse Group Limited ("Finesse"), the Claimant, makes bespoke high quality exhibition stands, some of which are created by applying liquid adhesive to the structure of the stands and colour laminated panels which are to be stuck together. Bryson Products ("Bryson"), the First Defendant, supplies materials to the construction and retail industry. Bostik Ltd (“Bostik”), the Second Defendant, is a well-known manufacturer of adhesive products, which, apart from the (relatively) eponymous tubes of its glue that can be bought from hardware shops, also provides industrial quantities to other organisations. One such organisation, which is not yet a party to these proceedings, Aerosol Fluid Technology ("AFT"), is from time to time a purchaser from Bostik of batches of Bostik adhesive and it is said that AFT packages some such adhesive, possibly with some additives, under pressure into canisters which it then provides to wholesalers such as Bryson.
4.	Between January and May 2012, Finesse purchased from Bryson on six occasions pressure canisters of liquid adhesive, apparently marketed as "Swiftbond Multi Spray Laminating Contact Adhesive" and "Swiftbond Ultra Spray High Temp Laminate Contact Adhesive". What, if any, are the differences between these two types of adhesive is unclear. It seems unlikely that the "Swiftbond” name emanates from Bostik. Finesse says that it used these products to create display panels for exhibition stands for an exhibition at the European Business Aviation Conference in Geneva in May 2012 and that during the erection of the stand for the conference it discovered that some of the coloured panels "had begun to delaminate from the structure of the stand and were displaying a bubbling or bulging effect"; it says that it had to take measures to re-fix the panels but that the visual appearance was affected. Later in September 2012, it inspected another 10 stands which it had manufactured with the Swiftbond adhesive and found that delamination had occurred or was beginning to the component parts. It says that it has incurred costs and losses involved in putting right these problems which apart from costs incurred in rectifying the alleged defects include loss of business goodwill.
5.	Finesse asserts that the Swiftbond adhesive which it used for these various stands emanated from Bostik through AFT.
The Proceedings
6.	On 21 October 2012 Finesse (apparently without the assistance of solicitors at that stage) issued online proceedings against Bryson in the Northampton County Court which were transferred the Tunbridge Wells County Court on 27 November 2012. The Claim Form, ambiguously, suggests that Particulars of Claim are either "attached" or  "to follow". The quantum of the claim is said to be £98,543.25 although no particulars were provided of that figure. Some vestigial details of the claim are given:
“Between January and May 2012 we purchased a substantial quantity of Swiftbond spray contact adhesive from Bryson.
This adhesive failed to perform as it should and we have suffered significant financial loss as a direct result.
Bryson were aware that we would use the glue to build exhibition stands and by selling us faulty goods we consider them in breach of contract and seek compensation from them for all losses that we have suffered as a result of their breach of contract.
We used the adhesive to build the laminated sections of eight different exhibition stands for seven different clients and all of these laminated sections (which in one case is the entire stand) now need to be rebuilt due to the adhesive failing to perform as intended.
We are seeking to recover the cost of all the materials and labour needed to rebuild the affected stands."
7.	The District Judge gave directions on 1 March 2013 which included the granting of permission to Finesse to join Bostik as Second Defendant and to amend the Claim in the following terms:
“Particulars of Claim (attached)
1. On various dates between the 1st January 2012 and 30 June 2012, approximately, Finesse Group Ltd ("The Claimant") purchased a quantity of swiftbond contact adhesive ("the adhesive") from Bryson Products ("The First Defendant"). All the adhesive was manufactured and supplied to the First Defendant by Bostik Limited ("The Second Defendant").
2. The adhesive referred to at clause 1 was and is defective.
3. In or about May 2012 a partner of the First Defendant admitted to Alan Finn, who is a director of the Claimant that the adhesive referred to at clause 1 above was defective.
4. The Claimant has suffered loss and damage as a result of the supply of the defective adhesive and claims:
The Claim
5. Damages
6. Costs”
This was supported by a Statement of Truth signed by Mr Elliott of Finesse’s newly appointed solicitors, a well known firm in Tunbridge Wells.
8.	The Second Defendant filed a brief Defence which denied that it supplied adhesive to Bryson and denied the remainder of the Particulars of Claim.
9.	The three parties consented to an order dated 7 June 2013 transferring the case to the London TCC "subject to the approval of the TCC judge" with the Claimant being required "to apply to the London TCC for such transfer by Friday 14 June 2013”. Finesse did not comply with that order but issued an application on 20 June 2013 supported by a statement from Mr Elliott. As the (then) Judge in Charge of the TCC I responded by letter dated 24 June 2013 because the Court had not been provided with much relevant information:
“Assuming that you did intend to address your application to the High Court, I am very concerned about the paucity of pleadings which do not, obviously or at all, set out what the Claimant’s causes of action against the two Defendants actually are. Are they for instance based in contract (and if so what terms are relied upon), in tort (and if so on what basis), in statute (and if so what) or otherwise? Secondly…there seems to be no pleaded explanation as to why it is said that the adhesive was defective. Thirdly, there is no pleaded damages case. It would be helpful if I could be provided with at least some such information before deciding whether this is an appropriate case to be heard in the High Court. In the pleadings bundle provided I can not locate any Defence from the First Defendant and the Defence of the Second Defendant provides no information of any help for this Court to determine whether it should accept jurisdiction.
I am happy for this information to be provided by letter to the Court. It is unclear if the Second Defendant agrees that it would be appropriate to transfer the proceedings to the TCC in London…”
This letter was passed on to the Defendants. 
10.	Finesse’s solicitors wrote to the court on 27 June 2013 suggesting that it was the common view of the parties that the proceedings were suitable to be transferred to the TCC and acknowledging the Court’s "understandable desire to receive a fully particularised Claim"; they said that Counsel had been instructed accordingly and asked for indulgence for the service of the pleading until 19 July 2013. They attribute at least part of the "current lacuna" in the proceedings to having been led to believe that liability was not in issue and that Bostik was "content to explore the possibility of reaching a settlement by means of mediation". However they accepted on any account that they had known since the end of April 2013 that Bostik maintained its denial of liability. Finesse, they said, was "concerned that…there has been a great deal of delay and costs…wasted unnecessarily”.
11.	Bostik’s solicitors wrote to the court on the same day saying that they had called for samples of the adhesive and that from all samples received it could not be determined whether the adhesive came from Bostik. They said that "no quality issues with the samples were identified", that no direct cause of action had been pleaded against Bostik, and that liability was "clearly far from being established". They identified that it had not supplied adhesive directly to Bryson, although it provided adhesive to AFT, but AFT also secured adhesive from other manufacturers.  Bostik did not oppose the application to transfer but did not believe the transfer was appropriate. They referred to the fact that no Pre- Action Protocol had been followed, which had contributed to Bostik’s lack of understanding of what the case was really about.
12.	Bryson’s solicitors wrote on 9 July 2013, sharing the Court’s concern that Finesse had failed properly to particularise its claim. It did not oppose the application to transfer. They identified that Bryson was facing seven other similar claims and they had six other clients facing a total of 134 claims, saying that they all related "to 1 batch of bad adhesive" which Bryson said was manufactured by Bostik, albeit supplied to it by AFT. The value of these claims range from £10,000 to £1.8 million.
13.	On 9 July 2013 Finesse’s solicitors served draft Particulars of Claim which set out in more detail what their claims were against Bryson and Bostik. On 11 July, the Court issued some further directions calling for further submissions including a requirement that the parties were “to address the Court in writing as to why the case should not be transferred to a TCC judge at the Central London County Court”. Bostik’s position on 15 July 2013 was that the case should go to the Central London County Court whilst Finesse’s position was that the case was TCC business and that the related claims could be all dealt with at the same time. On 2 August 2013, the Court issued an order approving the transfer with the following Note:
“1. I can accept that this is TCC business. However, I am yet to be convinced that this is some sort of test case which merits a trial in the High Court. I understand that the first named defendant acts on behalf of seven distributors of the adhesive who face 134 claims but the extent to which there are common issues remains unclear. It may well be that the Court, given the size of the claim, will transfer the case to a TCC designated judge at the London County Court unless it can be demonstrated somewhat more clearly that this might be considered a test case. 
2. That said, it is vital now that there is some active case management which this Court should provide. I remain concerned to ascertain what the Claimant’s cause of action is against the second named defendant. Any application to amend should be considered at the CMC. A Case of Management bundle should be prepared for the CMC and the parties should lodge costs estimates in the appropriate form.“
A Case Management conference was to be fixed.
14.	On 7 October 2013, Bostik issued an application for summary judgment on the basis that at least as pleaded to date Finesse had no real prospect of succeeding on its claim. That was supported by a witness statement from Mr Ward of its solicitors, the argument primarily being that the claim was vestigially pleaded and, as there was no contract between Finesse and Bostik, there was no case.
15.	On 17 October 2013, Finesse issued an application to re-amend its Particulars of Claim, at that stage unsupported by any witness evidence. This absence of evidence was belatedly put right by the submission of a witness statement dated 23 October 2013 from Mr Finn who owns and runs Finesse. He explained in his statement that he had discovered that a problem with the adhesive had first been communicated to a Mr O'Donnell of AFT in July 2011 and that Bostik was aware of this at that time also. Mr O'Donnell told him that by February 2012 AFT had stopped filling canisters with the particular type of Bostik glue. He understood that a report was obtained either by Bostik or AFT or both in May 2012 in relation to the cause of the alleged problem with the adhesive and that this led to a default product notice being sent to customers on or about 31 May 2012. He says that he was told by Mr O’Donnell that AFT only uses the particular type of Bostik glue, which is made exclusively for use by AFT. In effect, what he understands is that the adhesive provided to Finesse which is said to have caused the problems was made up from glue provided by Bostik to AFT which after being packaged and pressurised was provided to Bryson who sold it on to Finesse. He says that the "chain of supply is therefore straight forward and unbroken".
The Applications
16.	The draft Re-Amended Particulars of Claim plead a comprehensible case against Bryson in contract, and Bryson does not oppose the amendment against it. Paragraphs 1 to 3 described the three parties. Paragraphs 4 and 5 identify the six sets of adhesive purchased by Finesse from Bryson, going on to state that the adhesive in the canisters supplied to them was manufactured by Bostik and supplied by it in bulk to AFT who it is said then packaged the adhesive under pressure into the canisters supplied to Bryson. Paragraphs 6 and 7 plead terms of Finesse’s contract with Bryson (satisfactory quality and fitness for purpose). Paragraph 8 asserts that by the beginning of June 2012 Bryson was aware of a defect in the adhesive and that from that date at the latest it was under a duty to write to Finesse, presumably advising of its concern.
17.	Paragraphs 9 and 10 plead duties owed by Bostik to Finesse:
“9. Bostik owed a duty to the users of its products including Finesse to take care that those products including the adhesive sold and supplied by it to AFT were of satisfactory quality and fit for all the purposes for which adhesives are commonly supplied.
10. Further or alternatively from late 2011 Bostik was receiving warnings from AFT and others about the lack of adhesion of the liquid adhesive product for which it was manufacturing and supplying the adhesive in bulk. Bostik thereby became subject to a duty to the users of its products including Finesse to test its adhesive product for its adhesive quality and/or not to manufacture any more adhesive product with the same or similar lack of adhesive qualities."
18.	Paragraph 11 pleads a breach of duty by Bostik, namely that it failed in December 2011 “to carry out any or sufficient tests on its adhesive product and instead manufactured a further batch of adhesive product in that month with a product identification number” (being the one supplied to AFT). Paragraph 12 pleads collectively breaches of contract against Bryson and of the duty of care owed by Bostik in that "the liquid adhesive in the canisters…was not of satisfactory quality and was not fit for the purpose of bonding laminated panels to the structure of exhibition stands”. Particulars are given of the problems at Geneva and in relation to the other 10 stands (referred to earlier in this judgment):
(a) In the case of the Geneva exhibition, the client being a company called VistaJet, "a proportion of the coloured panels, up to 10% thereof, had begun to delaminate from the structure of the stand and were displaying a bubbling or bulging effect." It explains that it had to re-fix the panels as best it could using a manual repair method but the visual appearance was significantly affected.
(b) In respect of the other stands that "delamination had occurred or was beginning to occur to the component parts" of 11 stands including the VistaJet stand.
Paragraph 12.4 goes on to say that Bostik failed to take appropriate care to ensure that the particular glue supplied by it to AFT was "of reasonable quality and fit" for purpose "in that the adhesion of the liquid adhesive product failed and/or began to fail within a matter of weeks of application."
19.	At Paragraph 13 Finesse goes on to plead this:
“Finesse does not know what was the precise mechanism of failure of the liquid adhesive, but will say that:
13.1 Bostik knows or ought to know, because in September 2012 Finesse sent samples of failed laminate panels and structures to Bostik for analysis, as a result of which Bostik’s solicitors have described the samples as "very similar to adhesive that our client manufactured in December 2011 that has been exposed to oxygen for a period of 5 months" as well as "similar" to a competitor adhesive;
13.2 The facts set out above speak for themselves, particularly the short periods which elapsed between application of the liquid adhesive and the commencement of the failure process."
It was, properly, accepted by Mr Dyer (Counsel for Finesse) that this reflected the fact that Finesse had not yet retained an adhesive or technical expert.
20.	Paragraph 20 addresses loss and damage said to flow from Bryson’s alleged breach of contract and Bostik’s alleged breach of duty. The heads of loss include management time addressing the problems (£5,560), the cost of the purchased materials (£1,138), the additional cost of producing three stands involving a manual application of glue (£5,557), rectification of defective exhibition stands, namely the rebuilding of the VistaJet stand and the partial rebuild of three others (£98,710), compensation to VistaJet (£500) and the loss of business and goodwill for the years ending September 2013, 2014 and 2015 (£56,000).
Discussion
21.	Although I will not set out all the arguments, I will address the key contentions. It is common ground that the test for summary judgement is that, in this case, it has to be established that the Claimant has no real prospect of succeeding on its claim against Bostik and that there is no other compelling reason why the matter should be disposed of at trial (CPR 24.2). So far as amendment is concerned, an application for permission to amend will be refused if it is clear that the proposed amendment has no real prospect of success.
22.	Mr Dyer for Finesse, rightly, did not seek to suggest that the Amended Claim Form Particulars demonstrated any cause of action against Bostik. Apart from pleading that the adhesive was defective and came from Bostik, there is nothing which even tries to explain what the basis in law of the claim against Bostik was. It follows, absent the application for the re-amendment of the Particulars of Claim, there could be no argument that the Claim against Bostik was untenable and should be dismissed.
23.	Ms Chaffin-Laird mentioned in her written submissions but did not expand upon a number of technical criticisms of the proposed re-amendment. These included understandable but minor criticisms of the draft amendments such as failures to highlight in the appropriate colour the amendments, to provide an endorsement verified with a statement of truth and to set out the original pleading insofar as it was being deleted. She will forgive me if I say that those matters alone would not have prevented the granting of permission to amend, particularly given that the essential facts were largely verified in the late statement from Mr Finn.
24.	I will address the primary point first which is whether, on the facts as pleaded, Finesse can have any cause of action in tort against Bostik. Save for cases where the parties are in a close enough relationship (such as contract) or it can be said that the alleged tortfeasor assumed some particular responsibility towards the claiming party, usually, at least, there must be physical damage or injury other than to the "thing itself". Thus, in Donoghue v Stevenson [1932] AC 562, the plaintiff would not have been entitled to recover the cost of the bottle of ginger beer although she would have been able to recover damages for personal injuries caused by the shock or other effects of the snail in the bottle. As the editors of Benjamin on The Sale of Goods say at Paragraph 12-124:
“Thus an action in tort may also lie and indeed primarily lies against a manufacturer or distributor who puts into circulation goods which cause physical injury or the destruction of or damage to property."
25.	The editors go on in Paragraph 12-128 to consider, relatively briefly, economic loss relating to goods which threaten damage or are otherwise unsatisfactory, referring to the House of Lords case of Murphy v Brentwood 1991 1 AC 398 as, in ordinary cases, ruling out the recovery of economic loss. Lords Keith and Jauncey in that case left over the possibility that “the manufacturer of a separate part of a structure or article may be liable if it proves defective in such a way as to damage other parts of the structure or article, the question has not really been considered in connection with goods as opposed to buildings".
26.	Reliance is placed by Mr Dyer on The Orjula [1995] 2 LL Rep 395 which was a case involving the provision of drums of hydrochloric acid and sodium hypochlorite for shipment which leaked, causing contamination to the deck and hatch covers of the ship carrying the drums; the plaintiff claimed against the drum supplier (and others) for negligence. The supplier applied to strike out the case. The argument was over whether the pleaded contamination amounted to damage for the purpose of a cause of action in negligence and whether a layer of acid over the deck, resolvable by cleaning with a soda solution, represented damage. Mr Justice Mance (as he then was) said at page 399 referring initially to the criminal test for damage (such as cases involving criminal damage):
“The criminal test is thus one of fact and degree, depending on the circumstances on the nature and effect of what has been done. Relevant considerations are whether there has been "injury impairing value and usefulness" of the property in question, and the need for work and the expenditure of money to restore the property to its former usable condition is material. It seems to me that this guidance is also relevant in a civil context…
… Here, specialist contractors were engaged in undertaking the decontamination work using soda to neutralise the acid before washing the deck and hatch covers down with fresh water; further, it is pleaded, not perhaps surprisingly, that the vessel was required to be decontaminated of the hydrochloric acid before she could sail from the special berth to which she had been directed at the discovery of the leakage. On these alleged facts, I would have no hesitation in concluding that the vessel should be regarded as having suffered damage by reason of her contamination."
The judge then goes on to consider various aspects of the loss claimed of which only about 10% related to the actual cost of decontamination and was prepared to allow the case on the other heads of loss to be continued if the "further items of its alleged loss derived as much from the actual contamination of the vessel as from any other factors" (page 400); the judge was clearly reluctant to strike out other heads of loss at that stage.
27.	I do not consider that The Orjula decision is of much assistance other than its recognition that damage to something other than the drums themselves was necessary. Perhaps it is unsurprising that the leakage of acid from negligently packed barrels onto parts of the ship in question which caused physical contamination would be considered as damage, and as damage to something else. Acid tends actually to eat away or corrode wood or steel onto which it leaches and that would be physical damage even if it could be repaired almost as good as new with some sort of soda solution.
28.	One can only judge the draft re-amendment on its wording. It does not articulate specifically what the damage for the purpose of the tort actually is. The furthest that the draft pleading goes is in Paragraphs 12.1 and 12.2 (see above) which talks mainly about delamination. It is reasonably clear from the pleading that there are stands (which are presumably made of wood, metal or plastic of some sort) to which "panels" are stuck by the use of adhesive. The adhesive is said to be ineffective so that the panels begin to separate from the stands. It is not suggested that the panels fell off injuring anyone or damaging anything else. There is reference to some of the panels "displaying a bubbling or bulging effect" which seems simply to be another manifestation of delamination.
29.	I do not consider that it is arguable that there is or was damage in this case at all, on the facts pleaded. It is not being suggested in the pleading that the panels or the stands were actually damaged; indeed, it seems to be suggested in Paragraph 12 that the damage lies in the alleged unsatisfactory quality or unsuitability of the adhesive and that of course would in any event be damage to the thing itself (the equivalent of the ginger beer bottle in Donoghue). Even if one could apply or extend the thought processes of Lords Keith and Jauncey in the Murphy case and treat the adhesive as the thing itself and the panel as a separate part of the structure, so to speak, the panels are not pleaded as having been damaged. The fact that there is some financial loss said to be associated with putting right the alleged problems and consequences of the adhesive failure does not convert that state of affairs into damage for the purposes of a cause of action in negligence against Bostik. I also very much doubt that the adhesive could be said to be other than part of one "structure" and that delamination therefore is in itself not damage to anything other than the thing itself. One also has to bear in mind a public policy floodgates argument in relation to goods such as glue or even components of a machine. An example might be carelessly prepared glue used in making a shoe which fails causing the sole or heel to drop off; the suggestion that the owner of the shoe could sue the glue manufacturer is fanciful. Of course, there would or could be a cause of action in tort against the manufacturer in the current type of case if as a result of negligently manufactured glue which fails some element supposed to be adhered to a substratum falls off injuring someone or damaging an adjacent exhibit (in the case of an exhibition stand).
30.	It follows that for these reasons alone the cause of action in tort as pleaded in the draft re-amendment has no, let alone a realistic, prospect of success.
31.	There are some additional matters relied on by Ms Chaffin-Laird for Bostik only one of which would have on its own justified refusal of the re-amendment application. This relates to the contents of Paragraph 13 of the draft which frankly admits that Finesse does not know why or how the adhesive failed in effect but pleads that "the facts…speak for themselves”, or, in legal Latin, res ipsa loquitur. What is essentially relied upon is delamination of the panels and the fact that it occurred shortly after the application of the adhesive. As a matter simply of logic, it can not be right that this is proof either of negligence or of a causative link. Finesse does not even plead that there is no other realistic explanation. There are any number of possibilities why glue used in these applications realistically might fail, including:
(a) Bad workmanship in the application of the glue, which could include not applying enough glue, applying the glue in inappropriate conditions (such as it being too hot or too cold, too dry or too moist) or otherwise not complying with any issued instructions.
(b) Deterioration of the glue as supplied by Bostik to AFT whilst under the control of AFT.
(c) Some inadequacy in the processes of AFT which could be the nature of any additional contents added by AFT or the pressurisation method by which the adhesive was put into containers.
(d) The inadequacy of any instructions provided by AFT or indeed Bryson for the end user.
Of course, it is up to Finesse whether it wishes to present a case and evidence as to why the adhesive was unsuitable or otherwise unsatisfactory. Whilst one can sympathise more with a res ipsa loquitur case against Bryson because (probably) it could well succeed once and if Finesse establish that it did its work reasonably carefully, it simply does not work in an action in tort against Bostik.
32.	There were other grounds relied upon by Ms Chaffin-Laird such as inadequate particularisation (for instance of the plea in Paragraph 10 that "Bostik was receiving warnings from AFT and others about the lack of adhesion”) but they would have been curable. There were several brave attempts to suggest that Finesse in the draft was making allegations which it could logically not support by any statement of truth but these are undermined by the belated provision of Mr Finn’s statement.
33.	It follows from the above that the application to re-amend the Particulars of Claim as against Bostik fails and the Claim against it must be dismissed. There is no opposition in substance by Bryson to the proposed re-amendment, subject to it being re-configured to plead only against it. What will in all probability happen is that Bryson will bring Part 20 proceedings against AFT which will then bring in Bostik again, all of which will represent recourse to the relatively conventional contractual chain.
Transfer to Central London County Court
34.	I gave an oral ruling after the argument on this topic, deciding that it was appropriate for the matter to remain in the High Court. In summary, this court in West Country Renovations Ltd v McDowell [2012] EWHC 307 (TCC) laid down guidance that generally claims for less than £250,000 should be commenced in County Courts or other High Court centres outside London which have TCC designated judges albeit that a non-exclusive list of exceptions to that was provided. This included "any test case or case which will be joined with others [and] which will be treated as test cases" (Paragraph 10); an example was given of a claim involving a fire supposedly caused by a washing machine, car or lorry where other claims involving similar points might be expected to be joined. In the current case, there are four other sets of proceedings (in Liverpool, Northampton, Bridgend and Birmingham) in which comparable complaints about adhesive said to have emanated from Bostik through AFT are being pursued; these claims range from some £3,000 to about £89,000; none of these parties have made or have been invited to make representations to the TCC in London as to whether they wish to have their cases heard together with this case. It seems that there are different solicitors and apart from AFT and Bostik different parties. Additionally, eight letters of claim have been sent to clients of Bryson’s solicitors involving claims of some £237,000, together with some 70 other claims intimated against other such clients said to be worth over £6 million (ranging from 3 to 7 figure sums). Whether or not these are all identical in type is not clear but these claims are said to relate to ineffective adhesive and many relating to Bostik products.
35.	There is no particular definition applicable to the term "test case" used in the West Country case. It can properly be said in the light of the evidence about these other claims and proceedings that the current case falls into this category. Accordingly, it should remain in the High Court. There are, inevitably, logistic difficulties because the Court here does not know whether there is an exact correlation between this case and issues raised in the other claims or proceedings let alone whether any of the parties to the other claims and proceedings would wish to transfer what are, mostly, modest sized claims to London. The other very real difficulty is that there would be little saving in costs, resource or time unless the other parties on the other claims and proceedings were, at least to a large extent, prepared to use the same legal team and experts. If the Court, here in London, waits for a significant number of the other parties to come on board, that would in reality delay the resolution of the current proceedings for many months and possibly several years, an outcome with which Finesse are unsurprisingly unhappy. I agreed that there should be an order that the parties to this litigation including Bostik should notify each other of all claims issued or intimated in writing by mid-December 2013 in relation to allegedly defective aerosol adhesive products said to be supplied by Bostik, AFT or parties said to have been direct or indirect customers, that Bryson’s solicitors should be the co-ordinator of this exercise and that by Christmas 2013 they should write to all parties or their solicitors in relation to such claims and provide them with a copy of the Court’s order. The Court can then review what it might do.
36.	I fixed a trial date for the Finesse proceedings in November 2014. If the parties settle, it would then be open for any other claimants to pursue proceedings in whatever forum they wish but there is then a good chance of at least some rationalisation in terms of representation and thus a cost and time saving. If other parties wished to move promptly, the Court could give directions appropriately and I do not rule out the possibility that one or two other sets of proceedings could be tried at the same time. In any event, if the Finesse parties do not settle, there will be a judgment (although it will not be factually binding on other parties) and this will have reviewed and made findings about the adequacy of the adhesive in question; it is at least possible that there will be some legal findings (for instance in relation to standard terms which may exist between various parties such as between AFT and Bostik) which are binding as between them. I must make it clear that the High Court TCC does not want to encourage a large number of low value claims with different solicitors, Counsel and experts to apply to transfer to London. What however the parties to those proceedings might find helpful is to await the judgment in this case before pressing ahead too speedily if at all with their proceedings; if that is what they decide to do, they would probably need to secure the consent of the courts in which any of them have instituted proceedings and they would have to take the risk that the Finesse case might settle and they would then have delayed their proceedings as it would turn out unnecessarily.
Costs Budgets
37.	Finesse, Bryson and Bostik, in accordance with the Rules, filed costs budgets of some £206,000, £198,000 and £207,000 respectively. If and when AFT is joined in, it is at least possible that its costs budget will be similar. Because the parties are coming back for a Review Case Management Conference in February 2014, I deferred making a decision on costs management orders. However, I did point out to Counsel that the expenditure of some £610,000 or, with AFT, £800,000 of costs on a claim for under £170,000 at least looks extremely disproportionate. One can legitimately envisage, only by way of example, a hypothetical scenario of Finesse losing and being ordered to pay the three other parties’ costs, which even after assessment might (subject to the costs management regime) cost them some £500,000-£600,000 plus their own costs; many right-thinking people might consider that to be wholly unacceptable. Of course, this case can be considered at least on the facts as some sort of test case but for Finesse it is simply one claimant seeking redress for some allegedly defective adhesive.
38.	Accordingly, I invited the solicitors to give very serious consideration substantially to reducing the costs budgets to reflect these sorts of considerations and to seek sensible and imaginative solutions, such as the sharing of certain types of expert, to achieve this. The Court may well otherwise be faced with a stark choice of assessing and fixing what is the maximum proportionate budget for each of the (probably) four parties to this litigation; if it has to do that, then the shortfalls between the current costs budgets and those maximum allowances could well be so substantial that commercially it may be unrealistic for the parties to fight the case.