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Gutmann v First MTR & ors [2026] CAT 21
This is the costs decision of the CAT following its judgment in the Boundary Fares litigation in 2025, in which the CAT determined that the conduct alleged against the defendant train operating companies was not abusive (on the assumption that each of them held a position of dominance) (for news item see here). On costs, the Tribunal has now determined that the CR shall pay the Defendants’ costs subject to detailed assessment. Those costs should not exceed the level of adverse costs provision covered by two deeds of indemnity (i.e. £15 million).
The Tribunal made clear that it was not suggesting that an order for costs should never be made above the amount of the CR’s adverse costs cover accepted at the time of certification, or that a non-party costs order against a funder for that excess should never be made in collective proceedings. However, it emphasised that collective proceedings are subject to a “very different regime” from an ordinary civil action, including a private action before the Tribunal.
Having found that the Defendants were capped at the limit of the indemnities the Tribunal had no need to consider the intervening funder’s alternative argument that any excess of costs over £15 million should be borne by the CR’s solicitors.
Philip Moser KC and Stefan Kuppen (instructed by Charles Lyndon) acted for Mr Gutmann.
Tim Ward KC, James Bourke, and Hugh Whelan (instructed by Slaughter and May) acted for First MTR South Western Trains.
Paul Harris KC, Anneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) acted for London & South Eastern Railway and Govia Thameslink Railway and others.