Shared Appreciation Mortgages Group Action: Details of Group Litigation Order 5-10-09

IN THE HIGH COURT OF JUSTICE
Claim No: HC09C00918 and others
CHANCERY DIVISION

Before Chief Master Winegarten
On 5 October 2009

BETWEEN:
(1) MR DONALD WILLIAM TEW
(2) MRS LUCY MARGARET TEW

AND OTHERS

Claimants/Applicants

and

1. BOS (Shared Appreciation Mortgages) No. 1 plc
2. BOS (Shared Appreciation Mortgages) No. 2 plc
3. BOS (Shared Appreciation Mortgages (Scotland)) Limited
4. BOS (Shared Appreciation Mortgages) No. 3 plc
5. BOS (Shared Appreciation Mortgages) No. 4 plc
6. BOS (Shared Appreciation Mortgages (Scotland) No. 2) Limited
7. BOS (Shared Appreciation Mortgages) No. 5 plc
8. BOS (Shared Appreciation Mortgages) No. 6 plc
9. BOS (Shared Appreciation Mortgages (Scotland) No. 3) Limited
10. Barclays SAMS Limited Defendants/
Respondents
_______________________________________________

GROUP LITIGATION ORDER
_______________________________________________

UPON THE APPLICATION of the Claimants by notice dated 15 May 2009

AND UPON HEARING Counsel for the Claimants, Solicitor for the First to Ninth Defendants, and Counsel for the Tenth Defendant

AND UPON READING the written evidence filed

AND the Chancellor of the High Court having consented to an Order being made in the following terms

IT IS ORDERED THAT:

1. In this Order (which may be cited as “the SAMs GLO”) including Schedules C and D to this Order the following expressions have the following meanings respectively:

(1) “a SAM Loan Agreement” means a Loan Agreement entered into by one of the Defendants as lender with a borrower (being either a sole borrower or joint borrowers) on a date in 1996, 1997 or 1998 pursuant to or in accordance with which a loan (which has not yet been repaid in full) was made by the lender to the borrower on the security of a legal mortgage (in England or Wales) or standard security (in Scotland) granted by the borrower over the private residential property of the borrower.

(2) “a Borrower” means the borrower (either a sole borrower or joint borrowers) under a SAM Loan Agreement

(3) “a loan” means a loan made by one of the Defendants to a Borrower pursuant to or in accordance with a SAM Loan Agreement.

(4) “a qualifying claim” means a claim made in relation to a SAM Loan Agreement:

(a) by a Borrower (being either a sole borrower or joint borrowers or a last surviving joint borrower): or

(b) by the personal representative or representatives of a Borrower (being a sole borrower or a last surviving joint borrower):

and each such qualifying claim shall for the purposes of this Order and Schedule D to this Order be treated as the subject-matter of a separate claim (notwithstanding the fact that Claim No. HC09C00055 effected the joinder of 13 such claims (one of which such claims has since been dismissed by consent) and the fact that Claim No. HC09C00350 effected the joinder of 16 such claims and the fact that claim forms issued after the date of the hearing of the application for this Order may effect the joinder of a number of qualifying claims) made by a sole Claimant or joint Claimants (as the case may be). References in this Order to a claim or claims shall, unless the context otherwise requires, be construed as references to a qualifying claim or qualifying claims.

(5) “the SAMs Group Litigation” means the qualifying claims referred to in Paragraph 2 of this Order.

(6) “the GLO Issues” means the issues of fact or law specified in paragraph 3 below as the same may from time to time be amended supplemented or otherwise varied pursuant to directions given by the Management Judge.

(7) “the Initial Claimants” means the Claimants named in Schedule A to this Order.

(8) “the New Claimants” means the Claimants joining the Register pursuant to Paragraph 5 of this Order.

(9) “the Claimants” means the Initial Claimants and the New Claimants.

(10) “a Class” means one of the seven classes of qualifying claims specified in Paragraph 14(1) of this Order and (where the context permits) also includes a distinct class of qualifying claims (other than one of such seven classes) referred to in a direction of the Management Judge under Paragraph 14(9) of this Order).

(11) “the Chancery Lawyer” means the individual at the Royal Courts of Justice whose name and address is set out in Paragraph 5 of this Order.

(12) “the Register” means the Group Register of all Claimants in the SAMs Group Litigation referred to in Paragraph 6(1) of this Order.

(13) “the Management Court” means the High Court of Justice Chancery Division as provided in Paragraph 10 of this Order.

(14) “the Management Judge” means the Judge named in Paragraph 16 of this Order.

(15) “the Lead Solicitors” means the Solicitors named in Paragraph 17 of this Order.

(16) “Test Claimant” means the person or persons who is or are the Claimant or Claimants in relation to a qualifying claim treated as a test case pursuant to Paragraph 14(6), 14(7) or 14(9) of this Order and / or any direction of the Management Judge.

(17) “common costs” has the meaning set out in Paragraph 1 of Schedule D to this Order

(18) “an accounting period” means an accounting period for the purposes of common costs determined in accordance with Paragraph 13 of Schedule D to this Order

(19) “BOS 1” means the First Defendant

(20) “BOS 2” means the Second Defendant

(21) “SAMSCO 1” means the Third Defendant

(22) “BOS 3” means the Fourth Defendant

(23) “BOS 4” means the Fifth Defendant

(24) “SAMSCO 2” means the Sixth Defendant

(25) “BOS 5” means the Seventh Defendant

(26) “BOS 6” means the Eighth Defendant

(27) “SAMSCO 3”means the Ninth Defendant: and

(28) “Barclays SAM” means the Tenth Defendant.

(29) “the 1994 Regulations” means The Unfair Terms in Consumer Contracts Regulations 1994.

(30) “the 1974 Act” means The Consumer Credit Act 1974.

(31) “Relevant Provisions” means the terms in the SAM Loan Agreements which make provision for amounts related to the increases in the values of the mortgaged properties during the terms of the loans to be paid to the lenders upon redemption and, where applicable, for the payment of monthly interest at the relevant rate.

(32) “Brochures” means colour printed booklets, including in each case an insert, distributed to prospective Borrowers by employees or agents of the relevant Defendant by which the relevant Defendant through its employees or agents advertised the relevant SAM to the public.

(33) “Common Circumstances” means any factual circumstances which the Court considers to be relevant in relation to any GLO Issue and the applicable statutory provision or provisions and which are common either to Borrowers under SAM Loan Agreements, or to Borrowers under any distinct class of SAM Loan Agreement. Such circumstances may include (without limitation) circumstances relating to such Borrowers as aforesaid, circumstances relating to the lenders, and circumstances relating to SAM Loan Agreements or any distinct class of SAM Loan Agreements.

(34) “Individual Circumstances” means any factual circumstances (not being Common Circumstances) which the Court considers to be relevant in relation to any GLO Issue and the applicable statutory provision or provisions. Such circumstances may include (without limitation) circumstances relating to one or more individual Borrowers, circumstances relating to the lender or lenders, and circumstances relating to the particular SAM Loan Agreement or Agreements, and may include, in relation to any such Borrower (without limitation):

(a) the Borrower’s age

(b) his state of health

(d) his level of education, experience and familiarity with matters of personal finance

(e) whether he had the opportunity to obtain legal or financial advice

(f) any legal or financial advice which he received

(g) his actual understanding of the SAM Loan Agreement and of any relevant promotional material (including the Brochure)

(h) the reasons the Borrower entered into the loan

(i) whether any other loan or loans were reasonably available to the Borrower, and

(j) whether the lender in any respect took advantage of the Borrower.

(35) “the Unfairness Allegations” means:

(a) the allegation that the percentage of the increase in the value of the property fixed under each SAM Loan Agreement which determines, in whole or in part, the amount payable by the Borrower under the Shared Appreciation Provisions was excessive

(b) the allegation that the amount payable by the Borrower under the Shared Appreciation Provisions ought to have been capped or otherwise limited

© the allegation that the Brochures issued in respect of each SAM Loan Agreement, when objectively viewed by a prospective Borrower who was a reasonably well-informed and circumspect consumer, were misleading as to the costs involved.

2. This Order applies to any qualifying claim made by a sole Claimant or joint Claimants against one of the Defendants seeking the determination by the Court of the issues specified in Paragraph 3 of this Order (“the GLO Issues”) or some of such Issues or similar issues in relation to the SAM Loan Agreement entered into by such Claimant or Claimants with that Defendant. All such claims will together constitute “the SAMs Group Litigation”. The GLO Issues may be further particularised in accordance with Paragraph 13 of this Order.

3. The GLO Issues are:

(1) Can the questions of (1) the fairness or unfairness of a term arising under Regulation 4(1) of the 1994 Regulations and (2) the fairness or unfairness of a relationship arising under section 140A of the 1974 Act be determined by reference to the Common Circumstances alone, and without reference to the Individual Circumstances of each case, having regard in particular to section 140B(9) of the 1974 Act?

(2) Are the Relevant Provisions in the SAM Loan Agreements in plain and intelligible language within the meaning of Regulation 3(2) of the 1994 Regulations?

(3) If the answer to Issue (2) is “yes”, are the Relevant Provisions exempt from assessment for fairness under the 1994 Regulations by virtue of Regulation 3(2) because they either define the main subject matter of the contract or concern the adequacy of the price or remuneration, as against the goods or services sold or supplied?

(4) If the answer to Issue (2) or (3) is “no”, having regard to the Unfairness Allegations (to the extent that they are proved at trial):

(a) is the court in a position to conclude that the Relevant Provisions in the SAM Loan Agreements are unfair (for the purposes of Regulation 4(1) of the 1994 Regulations), having regard to the Common Circumstances but whatever the Individual Circumstances of any particular case might be: and

(b) does the Court so conclude?

(5) If the answers on Issues (2) and (3) above are “yes”, or if the answer on Issue (4)(a) or (4)(b) above is “no”, then, having regard to the Unfairness Allegations (to the extent that they are proved at trial):

(a) is the court in a position to conclude that the relationships between the lender and Borrower are unfair (for the purposes of Section 140A of the 1974 Act), having regard to the Common Circumstances but whatever the Individual Circumstances of any particular case might be: and

(b) does the court so conclude?

(6) If the answer to Issue (5)(b) is “yes”, can the appropriate remedy under Section 140B be determined having regard to the Common Circumstances but without reference to the Individual Circumstances of each case?

(7) If the answer to Issue (6) is “yes”, what is the appropriate remedy under Section 140B of the 1974 Act?

4. The Initial Claimants are those individuals whose names are set out in Schedule A to this Order. Schedule A also identifies the claim number of each respective claim brought by each of those Claimants and the Solicitors instructed by each of those Claimants if there are Solicitors on the record.

5. Further individuals whose claims may fall within Paragraph 2 above shall hereafter apply by letter to Ms Vicky Bell, The Chancery Lawyer, Room TM 5.06, Thomas More Building, Royal Courts of Justice, Strand, London WC2A 2LL (“the Chancery Lawyer”) (email address: vicky.bell@hmcourts-service.gsi.gov.uk) to be entered on the Group Register referred to below and joined as Claimants under the terms of this Order. Claimants joining the Group Register pursuant to this Paragraph (“New Claimants”) shall be treated for the purposes of this Order and Schedule D to this Order as if their claims had been listed in Schedule A to this Order and their claims shall be treated as having been entered on the Register on the date on which their letter applying to be so entered is delivered to the Chancery Lawyer at the above address.

6. (1) A Group Register (“the Register”) shall be set up on which details of the claims which are or become the subject of this Order are to be entered. The Register shall be constituted by a Schedule A (made up in accordance with the form of Schedule A to this Order but not limited to the Initial Claimants and accordingly headed “THE CLAIMANTS”) listing (alphabetically by First Claimant surname) all Claimants whose claims are or become the subject of this Order, and a supplementary Schedule B (made up in accordance with the form of Schedule B to this Order) listing (alphabetically by First Claimant surname) all claims which are or become the subject of this Order (by reference to the Class within which such claims respectively fall) in one of Parts 1 to 7 therein contained.

(2) The Register shall be kept by the Chancery Lawyer and shall be maintained by the Lead Solicitors. Where pursuant to this Order the Lead Solicitors are required or requested to serve or provide details of entries on the Register or to give notice of removal from the Register, the service or provision of such details or the giving of such notice shall be by e-mail, save where the service or provision of such details or the giving of such notice is on or to a Claimant or Claimants in the case of a claim where there are no Solicitors on the record for the Claimant or Claimants or where the Solicitors on the record for the Claimant or Claimants are the Lead Solicitors, in either of which situations the service or provision of such details or the giving of such notice shall be by recorded delivery letter to the Claimant or Claimants enclosing a hard copy setting out the details required or requested or the notice of removal and shall be sent to the last known address of such Claimant or Claimants unless he or they provides or provide an e-mail address in which case it shall be by e-mail to that address (unless and until he or they otherwise requires or require).

(3) The Register may be examined by, and copies of entries on the Register may be requested by and supplied to:

(a) the Solicitors acting for any Claimant or Claimants, or where there are no Solicitors on the record for a Claimant or Claimants or where the Solicitors on the record for a Claimant or Claimants are the Lead Solicitors, such Claimant or Claimants: and

(b) the Solicitors acting for any Defendant.

(4) Any application under sub-paragraph (3) above to examine the Register or for the supply of copies of entries on the Register shall be made by e-mail to the Lead Solicitors, save in the case of an application by a Claimant or Claimants (in which case it may be made by letter to the Lead Solicitors). Any examination of the Register shall take place at the offices of the Lead Solicitors at a time or times during normal business hours appointed by the Lead Solicitors. Copies of entries on the Register shall be provided by e-mail only unless a hard copy is required to be provided pursuant to sub-paragraph (2) above: if a hard copy is provided the Lead Solicitors may charge a fee not exceeding the fee prescribed for a search at the court office.

(5) If any of the Defendants is in future served by a New Claimant or New Claimants with a claim form containing a claim falling within Paragraph 2 of this Order, the Defendant’s Solicitors shall forthwith in writing inform the Chancery Lawyer and (save where the New Claimant’s or New Claimants’ Solicitors are the Lead Solicitors) the Lead Solicitors of the following particulars in respect of that claim: the full name and address of the New Claimant or New Claimants, the name of the Defendant, the claim number, the name, address, telephone number, the email address and reference of the New Claimant’s or New Claimants’ Solicitors (if represented by Solicitors) or the address and telephone number (if known) of the New Claimant or New Claimants (if acting in person), and in addition (in relation to a claim against SAMSCO 1, SAMSCO 2 or SAMSCO 3) whether the SAM Loan Agreement in respect of which the New Claimant’s or New Claimants’ claim arises provides for a loan on which interest is payable or a loan on which interest is not payable.

7. Schedule A of the Register shall include separate entries in respect of each separate claim and shall include in respect of each Claimant:

(a) the full name and address of the Claimant;

(b) the full name of the Defendant to the claim;

(d) the Solicitors on the record or (if there are no Solicitors on the record) an entry stating that the Claimant is acting in person;

(e) the date of entry of the claim on the Register; and

(f) the date the claim leaves the Register (where applicable).

8. Schedule A and Schedule B of the Register shall be updated quarterly following the date of this Order by the Lead Solicitors and within 14 days of each update the updated Schedule A and Schedule B shall be served by the Lead Solicitors (in the manner provided by Paragraph 6(2) above) on all parties or their Solicitors and (by e-mail) on the Chancery Lawyer.

9. The Defendants and any other party may give written notice to the Lead Solicitors of any issue they take on the accuracy of the updated Register within 28 days of receipt.

10. The High Court of Justice Chancery Division will be the Court which will manage the claims on the Register (“the Management Court”), and any future claims to which this Order applies are to be issued in that Court and entered on the Register.

11. (1) If any claim is added to Schedule A of the Register, a copy of the new entry shall within 28 days be served by the Lead Solicitors (in the manner provided by Paragraph 6(2) above) on the Solicitors for each Claimant (including the Claimant or Claimants in relation to the claim so added) and on the Solicitors for each Defendant but so that:

(a) where there are no Solicitors on the record in relation to any claim, the copy shall be served (in the manner so provided) on the Claimant or Claimants in relation to that claim: and

(b) where the Solicitors on the record in relation to any claim are the Lead Solicitors, it shall not be necessary to serve any copy on the Lead Solicitors.

(2) Where a claim which is entered on the Register is dismissed or is discontinued or is compromised or is subject to a Part 36 Offer which has been accepted, the Solicitors acting for the Claimant or Claimants in relation to that claim, or (if there are no Solicitors on the record in relation to that claim) the Claimant or Claimants in relation to that claim shall apply by letter or e-mail to the Chancery Lawyer for the claim to be removed from the Register. Unless the Management Judge otherwise orders, the date on which such a claim should be removed from the Register will be (where the claim is dismissed) the date on which the claim is dismissed, or (where the claim is discontinued or compromised) the date of such discontinuance or compromise, or (where the claim is subject to a Part 36 Offer which has been accepted) the date of acceptance of the Part 36 Offer. When a claim is removed from the Register pursuant to any such request or pursuant to any order of the Management Judge specifying the date of removal, notice of removal (specifying the date of removal) shall within 28 days be served by the Lead Solicitors (in the manner provided by Paragraph 6(2) above) on the Solicitors for each Claimant (including the Claimant or Claimants in relation to the claim so removed) and on the Solicitors for each Defendant but so that:

(a) where there are no Solicitors on the record in relation to any claim, the notice of removal shall be served (in the manner so provided) on the Claimant or Claimants in relation to that claim: and

(b) where the Solicitors on the record in relation to any claim are the Lead Solicitors, it shall not be necessary to serve any notice of removal on the Lead Solicitors.

12. Claim No. 9RG02471 issued in the Reading County Court on 14 April 2009 by Dr Orison Alistair Thores and Mrs Barbara Sinclair Thores against SAMSCO 1 and any other claims to which this Order applies which are proceeding other than in the Management Court shall be transferred forthwith to that Court and entered on the Register in accordance with rule 19.11 (3)(a)(i) and (iii) of the Civil Procedure Rules.

13. Without prejudice to the power of the Management Court to direct that the GLO Issues should be amended, supplemented or otherwise varied, the Claimants or the Defendants may at any time or times apply to the Management Court to request the Management Court to do so.

14. Subject to Paragraph 13 of this Order, the following procedure shall be applied in relation to all claims to which this Order applies for determining the GLO Issues and for the selection of claims to proceed as test cases:

(1) All claims shall be allocated by the Lead Solicitors to one of the seven Classes specified below.

Class 1: Claims against BOS 1 or SAMSCO 1 in respect of Loans made at a fixed rate of interest of 5.75% per annum.

Class 2: Claims against BOS 2 or SAMSCO 1 in respect of Loans made at a zero rate of interest.

Class 3: Claims against BOS 3 or SAMSCO 2 in respect of Loans made at a fixed rate of interest of 5.95% per annum.

Class 4: Claims against BOS 4 or SAMSCO 2 in respect of Loans made at a zero rate of interest.

Class 5: Claims against BOS 5 or SAMSCO 3 in respect of Loans made at a fixed rate of interest of 5.99% per annum.

Class 6: Claims against BOS 6 or SAMSCO 3 in respect of Loans made at a zero rate of interest.

Class 7: Claims against Barclays SAM (all in respect of Loans made at a zero rate of interest).

(2) In the case of all claims to which this Order applies where claim forms and Particulars of Claim were served by the Claimant or Claimants before the date of this Order (and accordingly in the case of Claim No. HC09C00054 (served on 8 May 2009), Claim No. HC09C00055 (served on 8 May 2009), Claim No. HC09C00350 (served on 8 June 2009), Claim No. HC09C00441 (served on 8 June 2009), Claim No. HC09C00918 (served on 24 July 2009), Claim No. HC09C01068 (served on 5 August 2009), Claim No. HC09C01114 (served on 5 August 2009), Claim No. 9RG02471 (served on 13 August 2009), Claim No. HC09C01389 (served on 19 August 2009), Claim No. HC09C01450 (served on 27 August 2009), Claim No. HC09C01462 (served on 27 August 2009)), Claim No. HC09C01540 (served on 7 September 2009), Claim No. HC09C01541 (served on 4 September 2009), Claim No. HC09C01617 (served on 11 September 2009), Claim No. HC09C01618 (served on 11 September 2009), Claim No. HC09C01619 (served on 11 September 2009), Claim No. HC09C01620 (served on 11 September 2009), Claim No. HC09C01621 (served on 11 September 2009), Claim No. HC09C01622 (served on 11 September 2009), Claim No. HC09C01623 (served on 11 September 2009), Claim No. HC09C01624 (served on 11 September 2009), Claim No. HC09C01641 (served on 11 September 2009), Claim No. HC09C01652 (served on 11 September 2009), Claim No. HC09C01653 (served on 11 September 2009), Claim No. HC09C01756 (served on 25 September 2009), Claim No. HC09C01757 (served on 25 September 2009), Claim No. HC09C01758 (served on 25 September 2009), Claim No. HC09C01836 (served on 30 September 2009), Claim No. HC09C01837 (served on 30 September 2009) and Claim No. HC09C01893 (served on 30 September 2009)) then the time for service of a Defence by the Defendant shall (subject to sub-paragraph (5) below and subject further to any directions by the Management Judge at any later time or times) be extended generally and without limit of time.

(3) In the case of all other claims to which this Order applies (and accordingly in the case of all other claims to which this Order applies where the claim form was issued before or on or after the date of this Order), then:

(a) the Claimant or Claimants shall within the period of 28 days commencing on the date of service by the Lead Solicitors of a copy of the new entry of the claim on the Register (pursuant to Paragraph 11(1) above) serve on the Defendant and (save where the Claimant’s or Claimants’ Solicitors are the Lead Solicitors) on the Lead Solicitors a Schedule, completed so far the Claimant or Claimants is or are able to do so, in the form set out in the applicable Part of Schedule C hereto (Part 1 or 2 or 3 as the case may be):

(b) the time for service of Particulars of Claim by the Claimant or Claimants shall (subject to sub-paragraph (4) below and subject further to any directions by the Management Judge at any later time or times) be extended generally and without limit of time.

(4) In relation to claims in each Class (other than claims within sub-paragraph (2) above), Particulars of Claim shall be served by the Claimant or Claimants in respect of such case or cases as may be required by the Management Judge and such case or cases shall be identified in such manner as provided by the Management Judge as being representative of the claims in that Class: and any such Particulars of Claim shall be served by the Claimant or Claimants by a date or within a time specified by the Management Judge.

(5) In relation to claims in each Class, a Defence to any Particulars of Claim served by a Claimant or Claimants before the date of this Order or to any Particulars of Claim served by a Claimant or Claimants pursuant to sub-paragraph (4) above shall be served by the Defendant in respect of such case or cases as may be required by the Management Judge and such case or cases shall be identified in such manner as provided by the Management Judge as being representative of claims in that Class: and any such Defence shall be served by the Defendant by a date or within a time specified by the Management Judge.

(6) If the Management Judge thinks it is appropriate, directions may be given as to the selection and identification of the claim or claims to be treated as the test case or test cases in relation to each Class.

(7) Directions may at any time or times be given by the Management Judge that a test case in relation to one Class shall also be treated as the test case in relation to another Class or Classes either generally or for the purposes of any one or more of the GLO Issues relevant in relation to more than one Class.

(8) Directions may at any time or times be given by the Management Judge as to the determination of any one or more of the GLO Issues relevant in relation to more than one Class and (if required) as to the incidence as between any individual Classes of the costs of any such determination.

(9) Directions may at any time or times be given by the Management Judge as to the determination of any one or more of the GLO Issues relevant in relation to a number of claims forming a distinct class of qualifying claims (other than one of Classes 1 to 7), as to the selection of a claim (and the identification of a Test Claimant) for this purpose and (if required) as to the incidence of the costs of any such determination.

(10) Subject and without prejudice to sub-paragraphs (2) to (9) above and save in the case of the claims identified to proceed as test cases as provided above, all claims in each Class shall be stayed with effect from the date of this Order or (if later) the date of their entry on the Register and until further Order with permission to apply for the stay to be lifted on giving not less than 14 days’ notice in writing to the other party or parties.

(11) The parties shall have permission to apply to the Court for directions as above and generally on giving not less than 14 days’ notice in writing to every other party.

15. Where a claim is added to Schedule A of the Register, the Lead Solicitors shall forthwith list the claim in the relevant Part (from among Parts 1 to 7) of Schedule B of the Register. The Claims which fall in Classes 1 to 7 shall be listed in Parts 1 to 7 respectively of Schedule B of the Register. Parts 1 to 7 of Schedule B will each be entered with the full name of the Claimant and the claim number of the Claimant’s case and Schedule B will be kept and maintained by the Lead Solicitors as provided in Paragraphs 6 and 8 above. On service of a copy of a new entry pursuant to Paragraph 11(1) above, the Lead Solicitors shall also specify the Part of Schedule B in which the claim the subject matter of the new entry is listed. At the same time, the Lead Solicitors shall by e-mail give notice to the Chancery Lawyer of the Part of Schedule B in which such claim is listed.

16. Mr Justice Mann (“the Management Judge”) shall be the Judge responsible for the management of all claims to which this Order applies.

17. The Lead Solicitors for the purposes of the management of this Order and for the purposes of service and receipt of documents shall be rwp solicitors limited of Meadow House, 22 Reading Road, Pangbourne, RG8 7LY: and their email address for the purpose of the service of documents pursuant to this Order shall be SAMGA@rwp-solicitors.co.uk

18. Any document (other than a disclosure document) or bundle in respect of claims to which this Order applies shall have indorsed on the top left hand corner of the first page or front cover, and in the case of a bundle on the spine, the words “SAMs Group Litigation”.

19. A copy of this Order shall be lodged with (1) the Senior Master of the Queen’s Bench Division in Room E115 of the Royal Courts of Justice, Strand, London WC2A 2LL, and (2) the Law Society, 113 Chancery Lane, London WC2A 1PL. Within 14 days after the date on which this Order is perfected, the Lead Solicitors shall issue a press release setting out the fact of this Order and, in outline, the terms thereof and the issues identified as the GLO Issues.

20. (1) All Claimants (of whatever Class) shall be severally liable for an equal proportion of the common costs within Paragraph 1(1) of Schedule D to this Order

(2) Subject as provided in sub-paragraph (3) below, all Claimants (of whatever Class) shall be severally liable:

(a) to the Test Claimant in any test case for an equal proportion of the common costs incurred by that Test Claimant: and

(b) to the Lead Solicitors for an equal proportion of the Lead Solicitors’ costs in administering the SAMs Group Litigation both in general and in relation to any Class or Classes or in relation to any matter affecting any Class or Classes.

(3) Where any GLO Issue is relevant in relation to a particular Class or Classes only and where the Management Judge directs that the incidence of common costs should be varied, all Claimants in such particular Class or Classes shall be severally liable:

(a) to the Test Claimant in any test case determining that Issue for an equal proportion of the common costs incurred by that Test Claimant in determining that Issue: and

(b) to the Lead Solicitors for an equal proportion of the Lead Solicitors’ costs in administering the SAMs Group Litigation for the purposes of determining that Issue.

21. Each Claimant’s share of the common costs shall be calculated by reference to the total number of separate claims on (or treated as on) the Register at the relevant time (and not by reference to the total number of individual Claimants) in all Classes or (where Paragraph 20(3) above applies) in the relevant Class or Classes.

22. (1) Subject to sub-paragraph (2) below, any sum (in respect of common costs incurred by a Claimant) payable by a Defendant to a Claimant under an Order or under a compromise or on acceptance of a Part 36 Offer shall, subject to any right of set-off, be paid to the Lead Solicitors and shall be paid or applied by the Lead Solicitors in reduction of the share of the common costs payable by each Claimant.

(2) Where:

(a) the common costs referred to in sub-paragraph (1) above were referable to any GLO Issue: and

(b) that GLO Issue was relevant in relation to a particular Class or Classes only: and

then the sum payable by the Defendant to the Claimant shall, subject to any right of set-off, be paid or applied by the Lead Solicitors in reduction of the share of the common costs payable by each Claimant in such particular Class or Classes.

23. (1) The detailed terms upon which the Claimants shall be liable for common costs and the detailed terms otherwise relating to common costs are set out in Schedule D to this Order.

(2) In the event of directions being given by the Management Judge which have the effect of materially changing the procedure to be applied for determining the GLO Issues and for the selection of claims to proceed as test cases (as provided by Paragraph 14 of this Order), then the provisions of Paragraphs 20 to 22 of this Order and / or the provisions of Schedule D to this Order will be varied (as provided by a direction of the Management Judge) if and to the extent that it is necessary or appropriate to do so.

24. The costs of this application shall be individual costs in the case of each of the claims to which this Order applies.

25. There shall be a Case Management Conference before the Management Judge on the earliest date available for him. The Lead Solicitors shall make an appointment to attend upon the Listing Officer (Room WG04, Royal Courts of Justice, Strand; telephone 020 7947 6690; fax 020 7947 7345) to fix a date for the Case Management Conference, such appointment to be no later than 31 October 2009, and shall give notice of the appointment to all other parties.

26. Notwithstanding any provisions in the Civil Procedure Rules, on any application to the Management Court in relation to the SAMs Group Litigation:

(1) the Lead Solicitors shall provide the Solicitors acting for the first nine Defendants and the Solicitors acting for Barclays SAM with (in each case) a maximum of 1 copy of the documents required to be served in relation to that application:

(2) the Solicitors acting for the first nine Defendants and the Solicitors acting for Barclays SAM shall (in each case) provide the Lead Solicitors with a maximum of 1 copy of the documents required to be served in relation to that application: and

(3) it shall not be necessary for the applicant or any respondent to serve on the Court more than 4 copies of the application notice or evidence which would otherwise be required to be served in relation to each claim forming the subject-matter of that application unless the Management Court specifically directs that further copies are required.

27. The Lead Solicitors do serve this Order.
SCHEDULE C

Part 1

Loans made at a FIXED rate of interest

Schedule to be served by a Claimant or Claimants
with a claim against one of the following companies:

BOS (Shared Appreciation Mortgages) No. 1 plc
BOS (Shared Appreciation Mortgages) No. 3 plc
BOS (Shared Appreciation Mortgages) No. 5 plc
BOS (Shared Appreciation Mortgages (Scotland)) Limited
BOS (Shared Appreciation Mortgages (Scotland) No. 2) Limited
BOS (Shared Appreciation Mortgages (Scotland) No. 3) Limited

All items to be completed, so far as the Claimant(s) are able to do so.
Where the details are not at present known, state “Unknown”.

1. Name of the Claimant(s):

2. Name of the Defendant:

3. Claim No:

4. Issue Date:

5. Date of the Application Form completed by the Claimant(s):

6. Valuation of the Property on the basis of which the Application Form was completed by the Claimant(s):

7. Date of the Offer:

8. Date of the Acceptance Form accompanying the Offer, as completed and signed by the Claimant(s):

9. Amount of the Loan:

10. Date of Drawdown of the Loan:

11. Date of the Legal Mortgage (or Standard Security in Scotland):

12. Solicitor / Licensed Conveyancer acting for the Claimant(s) in connection with the Loan Agreement and Legal Mortgage (or Standard Security in Scotland):

13. Solicitor / Licensed Conveyancer acting for the Defendant in connection with the Loan Agreement and Legal Mortgage (or Standard Security in Scotland):

14. Amount of the Base Value of the Property (as stated in the Offer):

15. The LTV Percentage under the Loan Agreement (as stated in the Offer):

16. The Share of Appreciation Percentage under the Loan Agreement (as stated in the Offer):

17. The amount of interest payable monthly by the Claimant(s) to the Defendant:

18. Address of the Property:

19. Estimated value of the Property at the date of issue of the Claim Form:

20. Difference between the estimated value of the Property at the date of issue of the Claim Form and the Base Value:

21. Estimated amount which would be payable to the Defendant by the Claimant(s) if the Loan were repaid in full at the date of issue of the Claim Form:

21.1. Loan:

21.2. Lender’s Share of the Appreciation

SCHEDULE C

Part 2

Loans made at a ZERO rate of interest

Schedule to be served by a Claimant or Claimants
with a claim against one of the following companies:

BOS (Shared Appreciation Mortgages) No. 2 plc
BOS (Shared Appreciation Mortgages) No. 4 plc
BOS (Shared Appreciation Mortgages) No. 6 plc
BOS (Shared Appreciation Mortgages (Scotland)) Limited
BOS (Shared Appreciation Mortgages (Scotland) No. 2) Limited
BOS (Shared Appreciation Mortgages (Scotland) No. 3) Limited

All items to be completed, so far as the Claimant(s) are able to do so.
Where the details are not at present known, state “Unknown”.

1. Name of the Claimant(s):

2. Name of the Defendant:

3. Claim No:

4. Issue Date:

5. Date of the Application Form completed by the Claimant(s):

6. Valuation of the Property on the basis of which the Application Form was completed by the Claimant(s):

7. Date of the Offer:

8. Date of the Acceptance Form accompanying the Offer, as completed and signed by the Claimant(s):

9. Amount of the Loan:

10. Date of Drawdown of the Loan:

11. Date of the Legal Mortgage (or Standard Security in Scotland):

12. Solicitor / Licensed Conveyancer acting for the Claimant(s) in connection with the Loan Agreement and Legal Mortgage (or Standard Security in Scotland):

13. Solicitor / Licensed Conveyancer acting for the Defendant in connection with the Loan Agreement and Legal Mortgage (or Standard Security in Scotland):

14. Amount of the Base Value of the Property (as stated in the Offer):

15. The LTV Percentage under the Loan Agreement (as stated in the Offer):

16. The Share of Appreciation Percentage under the Loan Agreement (as stated in the Offer):

17. Address of the Property:

18. Estimated value of the Property at the date of issue of the Claim Form:

19. Difference between the estimated value of the Property at the date of issue of the Claim Form and the Base Value:

20. Estimated amount which would be payable to the Defendant by the Claimant(s) if the Loan were repaid in full at the date of issue of the Claim Form:

20.1. Loan:

20.2. Lender’s Share of the Appreciation

SCHEDULE C

Part 3

Schedule to be served by a Claimant or Claimants
with a claim against Barclays SAMS Limited

All items to be completed, so far as the Claimant(s) are able to do so.
Where the details are not at present known, state “Unknown”.

1. Name of the Claimant(s):

2. Claim No:

3. Issue Date:

4. Date of the Application Form completed by the Claimant(s):

5. Valuation of the Property on the basis of which the Application Form was completed by the Claimant(s):

6. Complete only in the case of Loans in excess of £25,000

Date of the Offer:

7. Complete only in the case of Loans of £25,000 or less (in which case the SAM Loan Agreement was and is a Credit Agreement regulated by the Consumer Credit Act 1974)

7.1. Date of the proposed Credit Agreement sent to the Claimant(s):

7.2. Date of the Credit Agreement sent to the Claimant(s) for signature if the Claimant(s) wanted to be legally bound by its terms:

7.3. Date of the Credit Agreement, as signed and dated by the Claimant(s):

8. Amount of the Loan:

9. Date of Drawdown of the Loan:

10. Date of the Legal Mortgage:

11. Solicitor / Licensed Conveyancer acting for the Claimant(s) in connection with the Loan Agreement and Legal Mortgage:

12. Solicitor / Licensed Conveyancer acting for the Defendant in connection with the Loan Agreement and Legal Mortgage:

13. Amount of the Base Value of the Property :

14. The LTV Percentage under the Loan Agreement :

15. The Share of Appreciation Percentage under the Loan Agreement :

16. Address of the Property:

17. Estimated value of the Property at the date of issue of the Claim Form:

18. Difference between the estimated value of the Property at the date of issue of the Claim Form and the Base Value:

21. Estimated amount which would be payable to the Defendant by the Claimant(s) if the Loan were repaid in full at the date of issue of the Claim Form:

21.1. Loan:

21.2. Lender’s Share of the Appreciation

SCHEDULE D

CLAIMANTS’ LIABILITY FOR COMMON COSTS

1. In Paragraphs 20 to 23 of the Order and in this Schedule to the Order, the expression “common costs” shall mean:

(1) costs and disbursements incurred by any Claimant in relation to the SAMs Group Litigation and / or the administration of the SAMs Group Litigation (and not forming part of the costs and disbursements incurred by such Claimant and constituting “individual costs” for the purposes of rule 48.6A(2)(a) of the Civil Procedure Rules) including any liability on the part of such Claimant to pay the costs and disbursements incurred by any Defendant or Defendants:

(2) costs and disbursements incurred by any Test Claimant whilst his own individual claim is proceeding as a test case in relation to a Class or Classes, including:

(a) costs and disbursements reasonably incurred by him in relation to his own claim: and

(b) any liability on the part of the Test Claimant to pay the costs and disbursements incurred by any Defendant or Defendants in relation to the Test Claimant’s claim whilst it is proceeding as a test claim: and

(3) costs and disbursements incurred by the Lead Solicitors in administering the SAMs Group Litigation both in general and in relation to any Class or Classes or any matter affecting any Class or Classes.

2. (1) All Claimants (of whatever Class) shall be severally liable for an equal proportion of the common costs within Paragraph 1(1) above.

(2) Subject as provided in sub-paragraph (3) below, all Claimants (of whatever Class) shall be severally liable:

(a) to the Test Claimant in any test case for an equal proportion of the common costs incurred by that Test Claimant: and

(a) to the Test Claimant in any test case determining that Issue for an equal proportion of the common costs incurred by that Test Claimant in determining that Issue: and

(b) to the Lead Solicitors for an equal proportion of the Lead Solicitors’ costs in administering the SAMs Group Litigation for the purposes of determining that Issue.

3. Each Claimant’s share of the common costs shall be calculated by reference to the total number of separate claims on (or treated as on) the Register at the relevant time (and not by reference to the total number of individual Claimants) in all Classes or (where Paragraph 2(3) above applies) in the relevant Class or Classes.

4. A New Claimant joining the Register pursuant to Paragraph 5 of the Order shall be severally liable for his share of the common costs incurred (or deemed under Paragraph 14 below to have been incurred) from and after the date of the Order and up to the date of his entry on the Register and thereafter until his removal from the Register or until the conclusion of the test case or test cases in relation to or otherwise affecting his Class.

5. When a new claim is added to the Register pursuant to Paragraph 5 of the Order, then on the last day of the accounting period in which the new claim is added to the Register the Lead Solicitors shall recalculate each Claimant’s equal share of the common costs incurred (or deemed under Paragraph 14 below to have been incurred) from and after the date of the Order as if the New Claimant had been a Claimant entered on the Register pursuant to Paragraph 5 of the Order with effect from the date of the Order.

6. When a Claimant is removed from the Register, his liability for common costs incurred after the date on which he is removed shall cease.

7. If a Claimant compromises his claim with a Defendant in terms which provide for such Defendant to pay the Claimant’s costs, then that Claimant shall be entitled to recover from the Defendant his individual costs and his share of common costs up to the date of compromise, save that such common costs shall be limited to the costs recoverable on an inter-partes assessment on a standard basis.

8. Without prejudice to Paragraph 7 above, any Claimant has permission to accept a Part 36 Offer in full and final satisfaction of his claim, and such Claimant shall be entitled to recover from the Defendant, in addition to his individual costs, his share of the common costs up to the day on which the Claimant accepts the Part 36 Offer.

9. Where a Claimant (including for the purposes of this Paragraph any Claimant who has discontinued his claim in the period from 14 July 2009 to the date this Order is sealed) leaves the Register by reason of his discontinuing his claim:

(a) such Claimant’s liability in respect of the costs of any Defendant or Defendants (as mentioned in Paragraph 1(1) or 1(2)(b) of this Schedule) and / or

(b) the liability of any Defendant or Defendants for such Claimant’s share of common costs

shall be determined following the trial of the test case or test cases in relation to or otherwise affecting his Class, with permission to apply if such trial does not take place and to that extent rule 38.6(1) of the Civil Procedure Rules shall not apply.

10. For the purposes of Paragraphs 6, 7, 8 and 9 above, the common costs up to a date which falls within (but not on the last day of) an accounting period shall be determined as at the last day of the accounting period by an apportionment of the common costs calculated in relation to that accounting period made on a pro rata basis according to time.

11. Any sum (in respect of common costs incurred by a Claimant) payable by a Defendant to a Claimant under an Order or under a compromise or on acceptance of a Part 36 Offer shall be paid to the Lead Solicitors and shall be paid or applied as provided in Paragraph 22 of the Order.

12. (1) The Claimants’ liability for common costs shall be for all common costs actually incurred by any Claimant or Test Claimant (as provided by Paragraph 1(1) or 1(2) above) and for all costs actually incurred by the Lead Solicitors (as provided by Paragraph 1(3) above) and shall not be limited to the costs recoverable on an inter-partes assessment on a standard basis.

(2) Subject to sub-paragraph (3) below, the majority of all Claimants (of whatever Class) shall have the right to have:

(a) the fees of the Lead Solicitors representing any Claimant or Test Claimant: and

(b) the fees of the Lead Solicitors in administering the SAMs Group Litigation both in general and relation to any Class or Classes or any matter affecting any Class or Classes

assessed on the same basis as that set out in rules 48.8 and 48.10 of the Civil Procedure Rules (providing for the basis and procedure for the detailed assessment of solicitor / client costs).

(3) Where Paragraph 2(3) above applies, sub-paragraph (2) above shall take effect as if it had referred to the majority of all Claimants of the particular Class or Classes.

(4) In determining whether there is a majority for the purposes of sub-paragraphs (2) or (3) above, regard shall be had to the total number of separate claims on (or treated as on) the Register at the relevant date (and not to the total number of individual Claimants) in all Classes or (where Paragraph 2(3) above applies) in the relevant Class or Classes.

13. (1) Subject to sub-paragraph (2), common costs shall be calculated in arrears by reference to an accounting period of one month.

(2) The first accounting period shall commence on 1 December 2008 and shall terminate on 15 October 2009.

(3) Each accounting period thereafter shall terminate one month after the termination of the immediately preceding accounting period.

14. Common costs incurred on behalf of the Claimants prior to the date of this Order shall be deemed for the purposes of their division between Claimants to have been incurred on the last day of the first accounting period referred to in Paragraph 13(2) above (but Paragraph 15 below shall not apply to such costs falling within the scope of this Paragraph for which invoices have already been presented and paid).

15. The Lead Solicitors may issue interim invoices for common costs, which shall be for each Claimant’s share of the common costs outstanding from the date of the previous invoice, on a monthly basis (or such longer period at their discretion) payable within 28 days: and any such invoice shall be framed by reference to an accounting period or periods determined in accordance with Paragraph 13 above.

16. Notwithstanding and without prejudice to the provisions of the foregoing paragraphs (and in particular Paragraph 15):

(1) the Lead Solicitors shall be entitled to calculate and issue interim invoices for each Claimant’s share of the common costs on the footing that no contribution or further contribution to the common costs is required from any of the following:

(a) any Claimant who is a litigant in person:

(b) any Claimant for whom the Lead Solicitors are the Solicitors on the record and with whom the Lead Solicitors have made such arrangements as may be required by the Lead Solicitors providing for the payment of such Claimant’s share of the common costs at a future date or dates:

© any Claimant for whom some Solicitors (other than the Lead Solicitors) are the Solicitors on the record and with whom the Solicitors on the record have made such arrangements as may be required by such Solicitors and as are agreed with the Lead Solicitors providing for the payment of such Claimant’s share of the common costs at a future date or dates:

(d) any Claimant who is in receipt of a public funding certificate.

(2) in making any calculation in accordance with sub-paragraph (1) above, the Lead Solicitors shall take into account any contribution to the common costs actually made by any Claimant within sub-sub-paragraph (a) or (b) or © of sub-paragraph (1) above before such calculation:

(3) the Lead Solicitors may take such (if any) action as they in their absolute discretion consider appropriate in all the circumstances to recover any amount or amounts due and owing from any Claimant within sub-sub-paragraph (a) or (b) or © of sub-paragraph (1) above in respect of interim invoices issued to such Claimant under Paragraph 15 above, but (subject to any directions from the Management Judge) shall not be required to take any further action to recover any such amount or amounts.

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Claim No: HC09C00918 and others

BETWEEN:
(1) MR DONALD WILLIAM TEW
(2) MRS LUCY MARGARET TEW
AND OTHERS Claimants/
Applicants

~~and~~

GROUP LITIGATION ORDER
______________________________

Solicitors for the Claimants:
rwp solicitors ltd.
Meadow House
22 Reading Road
Pangbourne
RG8 7LY

Shared Appreciation Mortgages Group Action

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