Schedule 3 - LMA

1            Date

The date of this agreement is the date upon which you accept its terms.

2            Parties

This is an agreement made between:

(1) You;

(2) Harcus Parker; and

(3) all of the other Claimants.

3            Background

(A) You and the other Claimants are entering into this agreement in order to bring your Claims as part of the Proceedings. This document sets out the agreement between you, Harcus Parker and the other Claimants about how the Proceedings will be managed.

(B) By this agreement, you (and the other Claimants):

a. confirm that you understand what your Claim is about;

b. confirm that you understand that by bringing your Claim you take on obligations to the Court;

c. confirm that you appreciate that the Claim may involve some risk;

d. authorise Harcus Parker to issue a claim form on your behalf, and authorise Damon Parker of Harcus Parker, or another Partner at Harcus Parker, to sign statements of truth on your behalf based on the information you provide to us through our online questionnaire (and in doing so you recognise and acknowledge that making or causing somebody to make a false statement in a document verified by a statement of truth could give rise to proceedings for contempt of court); and

e. irrevocably agree to appoint the Committee to take certain decisions on your behalf. These are described below at clause 11 and include how the Proceedings are to be grouped and managed.

(C) You and each of the Claimants have also entered DBAs with Harcus Parker in respect of your Claims. The DBAs set out the way in which Harcus Parker will be paid for work done on the Claims.

(D) Harcus Parker also acts for a number of individuals who have similar claims against TSB Bank Plc (‘TSB’) in respect of former Northern Rock mortgages administered under TSB’s Whistletree brand (TSB Claims). There are likely to be issues which are common both to the Proceedings and to the TSB Claims, and through this agreement you give Harcus Parker the discretion to seek to run any such common elements in the most efficient way possible, which may include by seeking to have the two sets of proceedings managed jointly.

(E) It is also possible that some holders of former Northern Rock mortgages administered by one or other of the Defendants will wish to make claims similar to yours but will instruct solicitors other than Harcus Parker to do so. Through this agreement you give Harcus Parker the discretion to seek to agree that these related claims should be managed with the Claims.

(F) This agreement is enclosed with and should be read alongside Harcus Parker’s engagement letter, along with the DBA, and a glossary of defined terms. The definitions contained within the glossary are adopted and incorporated into this agreement.

(G) You have either taken independent legal advice in relation to the arrangements set out in this agreement or you are content to proceed without such advice.

4            General Matters

4.1. You and each of the other Claimants recognise and agree that:

(a) By executing this agreement and its associated documents, you are instructing Harcus Parker to investigate whether a Claim can be brought on your behalf. You give Harcus Parker the discretion to decide whether or not any such Claim is viable and agree that if in Harcus Parker’s discretion it is not viable, then Harcus Parker has no duty or obligation to seek to bring it.

(b) A partial completion of the registration process may not result in you becoming a Claimant. Once you have clicked to accept the terms of this agreement (and the DBA and other associated agreements) you will receive an email confirming your instructions. You will then need to continue your registration and provide Harcus Parker with sufficient information to issue a Claim on your behalf;

(c) You are responsible for:

(i) the accuracy of the information you supply to Harcus Parker; and

(ii) the consequences of its being inaccurate.

(d) Harcus Parker has no duty to the Claimants to check the accuracy of the information supplied.

(e) You will each act in good faith in applying this agreement in accordance with the common objective of managing and pursuing the Claims to obtain maximum possible damages overall and to share costs liabilities in accordance with the principles set out in this agreement.

(f) You are joining a group of Claimants who are collectively pursuing Claims that are suitable to be run collectively. In doing so, you gain the advantages of economies of scale and access to funding, but you are not being advised on whether you have alternative causes of action other than those being brought collectively through the Proceedings; nor are you being advised on the possibility of you being able to bring different claims against other defendants.

(g) You will respond promptly to communications from the Committee and Harcus Parker, and will provide all possible assistance to Harcus Parker in connection with the Claim, including as to:

(i) the signing of any letters of authority;

(ii) the disclosure of documents and data; and

(iii) the drafting of witness statements,

and that if you do not, you will damage your Claim and the Claims of your fellow Claimants. Because of the importance to all of the Claimants of cooperation, if you become an Obstructive Claimant, Harcus Parker may ask the Committee to instruct them to take steps formally to discontinue your Claim, and you and all other Claimants accept that if you or they become an Obstructive Claimant, the authority you and they have given to the Committee will extend to the Committee being empowered to require an Obstructive Claimant’s Claim to be discontinued.

(h) You will keep this agreement and its terms confidential unless required by the court to disclose it in the Proceedings or for the purpose of determining a dispute pursuant to clause 12.4.

4.2. All Notices shall be in writing and shall be transmitted by email in a form generating a record copy to the party being served at their usual place of residence or place of business. Any Notice sent by electronic means shall be deemed to have been duly served at the time of transmission (if transmitted before 4.30pm on a business day and if not so transmitted then at 9am on the next business day after which the transmission as made).

4.3. This agreement takes effect subject to the terms of each individual Claimant’s DBA, and, if there is any conflict between a term or terms in this agreement and that in the DBA, the DBA shall take precedence. Further, if and to the extent that any provision in this agreement causes a Claimant’s DBA to be invalid or unenforceable, that provision of this agreement will be deemed to be deleted from this agreement and shall not take effect.

5            Agreement to work together

5.1. You and the other Claimants may have different complaints to bring against the Defendant(s), but you agree that you have a common interest in bringing your Claims together. By executing this agreement, you and every other Claimant warrant that you have no interest which is adverse to the success of the Proceedings.

5.2. The Claimants’ common interest is in attempting to secure the largest possible sum from the Defendant(s). This could be as a result of the court awarding a sum of compensation or as a result of the Defendant(s) to your Claim making you an offer of settlement which is accepted on your behalf by the Committee. 

5.3. You appreciate that if the Proceedings result in a successful judgment at trial, the court may order that some Claimants are compensated in a different way from others because of their individual circumstances.

5.4. You understand that circumstances may arise in which it would be expedient not to take detailed account of the individual issues of each Claimant’s case in the allocation of the Overall Claim Proceeds to Claimants because it would otherwise be very expensive and burdensome to work out a fair division.

6            Sharing of information, confidentiality and legal professional privilege

6.1. You and the other Claimants agree that:

(a) The duty of confidentiality owed to each of you individually by Harcus Parker in respect of:

(i) the facts of your individual Claims disclosed to Harcus Parker by the Claimant or by any other party in or third party to the Proceedings; and

(ii) any documents produced by you or to you through disclosure, 

shall be waived as against your fellow Claimants and the Committee in so far as Harcus Parker considers it necessary or helpful to compare the facts of individual Claims for the purposes of advising on and conducting the common aspects of the Proceedings. The Claimants’ Confidential Information will be shared on terms of confidentiality and without any waiver of privilege.

(b) You will disclose the facts and terms of any offer to settle made to you to Harcus Parker and to any other Claimant and to the Committee.

(c) If Harcus Parker considers it to be necessary or helpful, Harcus Parker may use information or documents derived from one Claimant’s individual Claim in any other Claimant’s individual Claim or in the Proceedings in general. For the avoidance of doubt this extends to the sharing of Confidential Information with barristers instructed in the Proceedings, third-party litigation funders or insurers with an interest or potential interest in the Proceedings, and any other third party who owes an obligation of confidence to Harcus Parker.

(d) Harcus Parker’s duty to report to its clients shall be satisfied by Harcus Parker reporting to the Committee and that it is in the best interests of the Claimants as a whole for communications with them to be limited because of the risk that sensitive, confidential, and privileged information may be passed to the Defendants.

(e) You will not disclose to any person who is not either a Claimant or a professional adviser of a Claimant with a duty of confidentiality to that Claimant any advice received from Harcus Parker or any other communication received from the Committee in connection with the Proceedings. For the avoidance of doubt, the contents of this agreement and the DBA are, subject to clause 4.1(h) confidential, and the Claimants agree that they will not disclose the contents of either document to any person who is not either a Claimant or a professional adviser of a Claimant with a duty of confidentiality to that Claimant.

(f) Harcus Parker may, for reasons of cost efficiency or otherwise, instruct a third-party firm to manage some of the administrative burden of the Proceedings and, in particular:

(i) to process and collate information from responses to subject access requests made by Harcus Parker;

(ii) to maintain a secure database to store and organise information about the Proceedings and the Claimants; and

(iii) to administer the distribution of the Overall Claim Proceeds.

6.2. Any information shared pursuant to clause 6.1 above shall remain fully confidential as against any person who is not either a Claimant or a professional adviser of a Claimant with a duty of confidentiality to that Claimant and the Claimants agree that they will keep all such information fully confidential and will not disclose any such information to any third party except for the purposes of obtaining professional advice.

6.3. If a Claimant ceases to be a party to this agreement, that Claimant’s duty of confidentiality shall continue with full force and effect.

6.4. All communications between Harcus Parker and the Claimants or any of them shall be subject to legal professional privilege and the Claimants irrevocably agree that solicitor-client privilege shall not be waived or abrogated from in any way by the passing of Confidential Information amongst the Claimants. Harcus Parker shall be authorised to report to the Claimants on the facts underlying each Claimant’s Claim, including the facts stated in the evidence disclosed by the Defendant.

7            The DBA and the Claimants’ own costs

7.1. You and the other Claimants agree so far as possible that Harcus Parker should seek to run the common elements of the Proceedings jointly, and for Generic Costs to be shared in accordance with this agreement.

7.2. The Parties recognise, however, that not all of the costs of bringing the Claims will be Generic Costs. Costs which are not Generic Costs may be either Individual Costs or Issue Costs.

7.3. Subject to any order of the court to a different effect, the Claimants agree that Individual Costs and Issue Costs within the Proceedings or sub-groups of Claims will be treated as Generic Costs unless Harcus Parker decides, at its discretion and after consultation with the Committee, that it would be fair and proportionate to treat certain costs as being either Individual or Issue Costs. In exercising this discretion, Harcus Parker will have regard to the administrative costs of distinguishing between different kinds of costs and the utility of the distinction, bearing in mind its potential impact as well as the amount of costs at issue.

7.4. The Claimants agree to apply for an order or orders that as far as possible their cases be managed together and agree that the costs of any lead or test case or cases within the Proceedings will be treated as Generic Costs.

7.5. You and each of the Claimants authorise Harcus Parker to incur Disbursements on your behalf. Disbursements may be either Generic Costs, Issue Costs or Individual Costs.

7.6. By entering into this agreement each Claimant agrees that his or her share of costs, as further set out in clause 8 below under the title ‘Costs Sharing’, shall be calculated as though Harcus Parker had begun to act for each Claimant on the date on which Harcus Parker began acting in relation to the Proceedings.

7.7. The Claimants agree as follows:

Disbursements

(a) Harcus Parker will raise disbursement-only invoices (subject to the definition of ‘Disbursement’ in the DBA) and will submit them to the Committee for approval on behalf of the Claimants. These invoices will make clear that the primary liability for Disbursements is the Claimants’, so that the Claimants can recover these costs from the Defendants, even though Harcus Parker will pay these costs in the first instance.

Harcus Parker’s time costs

(b) When requested by the Committee, Harcus Parker will submit to the Committee for approval an account of the time costs they have incurred on Proceedings. As set out at clause 11.9(d) below, the Committee will satisfy itself as to the reasonableness of the time incurred.

7.8. The Claimants further agree that Harcus Parker’s reporting on costs to the Committee will be a sufficient report to them and that Harcus Parker will have no further duty to report on costs than to report to the Committee. For the avoidance of doubt, Harcus Parker will have no duty to produce itemised reports showing each Claimant’s Proportionate Share of its costs, save for at the conclusion of the Proceedings, and only to the extent that it is necessary to do so in order to invoice the Claimants.

8            Costs sharing between the Claimants

8.1. The Claimants agree that, unless the court orders otherwise, the amount of costs referable to each Claimant shall be a Proportionate Share of the Generic Costs and, as appropriate, Issue Costs, plus any Individual Costs referable to any particular Claimant within each Claim they pursue.

8.2. The Claimants recognise that the result of the Proceedings may be that the actual relationship between a Claimant’s damages and the overall damages awarded may differ from the Proportionate Share.

9            The Defendants’ costs and the costs of Adverse Costs insurance

9.1. Nothing in this agreement shall impose any liability on Harcus Parker or any third-party funder to meet any Adverse Costs orders. The Claimants retain responsibility for any Adverse Costs. The remainder of this clause deals with how it is proposed to protect the Claimants from that risk.

9.2. Harcus Parker intends, at an appropriate point in time, to seek to obtain insurance against the risk of Adverse Costs in respect of the Proceedings.

9.3. You and each of the Claimants acknowledge that if insurance is in place the Claimants may be jointly and severally liable in law for Adverse Costs within each Claim they pursue if the policy (or policies) of insurance which is obtained is insufficient and/or in any way fails to cover all of the Defendant’s costs. However, the Claimants agree collectively that the Claimants’ liability for Adverse Costs should be several and not joint within each Claim they pursue. The Claimants also acknowledge that the terms on which insurance is likely to be offered will include a cross-subsidy between the Claimants such that the insurance overall will pay out only if there are no Overall Claim Proceeds from which Adverse Costs can be satisfied. The effect of this will be that if the Claims of some Claimants succeed and some fail the Adverse Costs of those that fail will be borne by those that succeed. The Claimants further acknowledge that the terms of the insurance are likely to include a cross-subsidy as between different types of Claim, with the same effect. Subject to that, no single Claimant should, in the event of an Adverse Costs order in respect of Generic Costs or Issue Costs being made, bear more than a Proportionate Share of such Adverse Costs. Each Claimant will be individually and severally liable for his or her own Individual Costs.

9.4. You and each of the Claimants agree that Harcus Parker should, if it thinks it necessary, apply to the court for an order reflecting this agreement.

9.5. In the event that no such order is made, you and the Claimants each accept that any Claimant who is burdened with a greater share than their Proportionate Share within each Claim they pursue should be entitled to recover the difference from their fellow Claimants within that Claim: any Claimant who has initially borne a greater burden of such liabilities shall have a right of recovery which the Claimants agree will not be contested against any of his or her fellow Claimants who have not paid their due share. For the avoidance of doubt, this clause 9.5 will only apply in the unlikely event that the court does not make an order reflecting clause 9.3.

9.6. Nothing in this agreement shall make the Committee or Committee Member liable for such costs save to the extent that any such member faces a liability in respect of his or her capacity as a Claimant.

10         Sharing costs and risk with other groups

10.1. You and the other Claimants recognise that it is possible that individuals other than those who chose to instruct Harcus Parker will seek to pursue similar claims to those of the Claimants. You acknowledge that the Committee’s authority will extend to agreeing to share costs and risk with other groups, and that this may include an agreement that Harcus Parker will agree to share work with the solicitors acting for other groups. Harcus Parker will be instructed to endeavour to ensure that any work- or cost-sharing agreements will mirror the agreements between the Claimants recorded in this agreement.

10.2. Specifically, you and the other Claimants recognise that your Claims share a number of common features with the TSB Claims, and that there are advantages to both you, the Claimants and the TSB Claimants in seeking to run or to manage those features of the two sets of proceedings together. As a result, you and the other Claimants acknowledge that the Committee may liaise with any committee of TSB Claimants to seek to agree efficiencies across the claims and that where practicable Harcus Parker will seek an order from the court providing for the harmonization of the two sets of proceedings.

11         The Committee

11.1. Subject to the provisions of this agreement, you and each Claimant irrevocably appoint the Committee to be your agents in relation to your Claims and you each confirm that the Committee may give instructions to Harcus Parker in relation to the conduct of the Proceedings, including without limitation:

(a) discontinuance by all Claimants, or any one or more of them;

(b) the entry into and conduct of settlement negotiations;

(c) subject to sub-clause 11.8 the acceptance and making of offers to settle (including for the avoidance of doubt the acceptance and making of offers in accordance with the Distribution of Global Damages Clause and the acceptance of making of offers to settle not only the claims in the Proceedings but also to enter an agreement in full and final settlement of all claims the Claimants may have against the Defendant);

(d)  the instruction of Counsel, experts and the incurring of any other third-party liability that Harcus Parker advise is necessary for the conduct of the Proceedings;

(e) the execution of any policies of Adverse Costs insurance or third party funding agreements;

(f) the negotiation and execution of documents comprising new terms under which Harcus Parker or its successor will act; and

(g) strategy generally.

11.2. Each Claimant in addition irrevocably agrees that the Committee may do any ancillary necessary act and execute any ancillary necessary document on his or her behalf.

11.3. The Claimants agree further to ratify and to confirm anything the Committee does or executes on their behalf in relation to the Proceedings in the proper execution of its role.

11.4. The following rules shall govern Committee meetings:

(a) Committee meetings must be held in the presence of Harcus Parker, may be called by any Committee Member and may be held in person on seven days’ notice or by conference call on 24 hours’ notice, such notice to be provided by email or by other means if so agreed by a Majority of Committee Members’ votes cast;

(b) Committee meetings held by the Initial Committee Members shall be considered quorate only if three or more members are in attendance, whether in person, by telephone or via video conferencing facilities. If the number of Committee Members has fallen beneath three by the operation of clause 11.5, a Committee meeting shall be quorate if all remaining members are in attendance. If the number of Committee Members is seven or more, a Committee meeting shall be quorate only if four or more members are in attendance, whether in person, by telephone or via video conferencing facilities;

(c) no one who is not a Committee Member or a representative of Harcus Parker shall be entitled to attend a Committee meeting other than by the invitation of at least four Committee Members or by the invitation of Harcus Parker;

(d) minutes must be kept of all meetings by Harcus Parker and approved by the Committee;

(e) the Committee shall agree by a Majority of the votes cast to appoint a Chairperson from time to time, and the Chairperson may exercise a casting vote in the event of a tied vote;

(f) the Committee may dismiss the Chairperson for the time being and appoint a new Chairperson by a Majority of the votes cast;

(g) the Committee may agree by a Majority of the votes cast to delegate certain decisions to a sub-committee of not fewer than three members provided that the Committee is kept fully informed of all decisions that are made and the reasons for them.

11.5. The following rules shall govern the appointment, removal, and resignation of Committee Members:

(a) a Claimant shall cease to be a Committee Member as soon as he or she:

(i) retires by notifying each member of the Committee and Harcus Parker in writing (but only if enough Committee Members remain in office to form a quorum for meetings);

(ii) dies;

(iii) applies for a voluntary winding up, becomes insolvent or enters a voluntary arrangement with its creditors;

(iv) becomes incapable by reason of mental disorder, illness or injury of managing and administering his or her own affairs;

(v) has a bankruptcy order made against him or her; or

(vi) is subject to a resolution by a Majority of votes cast by Committee Members at a properly convened meeting of the Committee and with prior or simultaneous consent of Harcus Parker, that he or she should cease to be a member of the Committee. 

(b) No Claimant shall be appointed a member of the Committee until he or she has executed a confidentiality agreement on terms stipulated by Harcus Parker; and

(c) a Claimant shall be appointed as a member of the Committee by the resolution of a Majority of votes cast by Committee Members at a properly convened meeting of the Committee, providing that the number of Committee Members shall not exceed nine and providing that Harcus Parker has given its consent.

11.6. The Committee will give instructions to Harcus Parker in relation to the conduct of the Proceedings, including (without limitation):

(a) discontinuance in relation to any individual Claimant;

(b) strategy generally;

(c) how the Claims should be grouped;

(d) the commencement and conduct of settlement negotiations;

(e) the execution of any policies of Adverse Costs insurance and any documents or agreements ancillary to any such policies.

11.7. In relation to all matters other than the acceptance and making of offers to settle, the business of the Committee will be resolved by a Majority of Committee Members voting. In the event of a split vote the Chairperson shall have the casting vote.

11.8. In relation to the acceptance and making of offers to settle and the operation of the Distribution of Global Damages Clause, the decision of the Committee must be made by a Majority of Committee Members voting and no vote in favour of the acceptance or making of an offer shall be passed unless Counsel advises it to be in the best interests of the Claimants as a whole. The detailed operation of the Distribution of Global Damages Clause is dealt with at clause 12 below.

11.9. In addition, the Committee will:

(a) act as the Claimants’ representatives to Harcus Parker in relation to the Proceedings;

(b) ensure that Harcus Parker reports to the Claimants from time to time on the progress of the Proceedings;

(c) ensure that Harcus Parker reports to insurers in accordance with their requirements;

(d) approve on behalf of the Claimants any invoices raised by Harcus Parker (including in respect of any Disbursements incurred);

(e) approve Harcus Parker’s accumulating work in progress; the Committee may appoint an independent costs draftsman to assist them in this respect and is entitled to rely on his or her advice; and

(f) give instructions as to the distribution of the Overall Claim Proceeds to the Claimants.

11.10. The Claimants agree that the Committee’s discretion to negotiate settlement should not extend to the Committee agreeing to settle on a basis that frustrates the payment to Harcus Parker of the Solicitors’ Fee. The Claimants further agree that the Committee may not agree to a settlement that does not involve the payment of a cash sum sufficient to satisfy the Solicitors’ Fee without the prior written consent of Harcus Parker.

11.11. The Claimants agree that in the event that the Claimants succeed at trial, the Committee shall instruct Harcus Parker to procure that any order giving effect to the judgment shall be on terms that a cash sum sufficient to satisfy the Solicitors’ Fee be paid to Harcus Parker before the distribution of the remaining Overall Claim Proceeds to the Claimants.

11.12. The Committee will at all times act in accordance with the terms of this agreement and use its reasonable endeavours to act in the best interests of the Claimants as a group.

11.13. Subject to clause 11.12 above, and subject to a member of the Committee breaching his or her duties under the separate confidentiality agreement that each must sign pursuant to clause 11.5(b), no member of the Committee shall be liable to the Claimants (or any of them) for his or her own acts, neglects or defaults or for any loss to the Claimants incurred in connection with his or her role as a Committee Member, unless caused through his or her own fraud or dishonesty.

11.14. No Committee Member shall be liable for the acts, neglects or defaults of any other Committee Member.

11.15. The Committee Members shall be indemnified by the Claimants against any costs, losses or expenses to which they may become liable as a result of the proper exercise of their duties as Committee Members.

11.16. The Claimants agree that the Committee Members shall be entitled only to reimbursement of their reasonable expenses.

12         Distribution of Global Damages Clause

12.1. The Claimants recognise that if there are negotiations to settle the Proceedings with the Defendants, it is possible that any offers made will be on a costs-inclusive global basis. The Claimants specifically authorise the Committee to solicit offers on such a basis and to allocate and distribute the Overall Claim Proceeds, subject to obtaining advice from Harcus Parker and from Counsel and subject to the terms of clause 12.2 below, by reference to the amounts claimed or by any other method which Counsel advises is an appropriate method of determining a global settlement of damages. The Claimants also recognise that there may be circumstances that arise in which it is necessary to decide how a global offer should fairly be framed, how a global sum of damages should be allocated between different categories of Claimant, and that it may be appropriate for one category of Claimant to settle without another settling, and that different considerations, including different assessments as to the overall strength of the claims of the groups may apply to each group. The Committee has a discretion to decide which of these methods (and/or a combination of these) is most appropriate. 

12.2. In giving this authority, the Claimants appreciate that the effect of this ‘Distribution of Global Damages Clause’ may be that no detailed account will be taken of the individual merits or demerits of individual Claimants’ cases (if any) and accept that adjudicating between individual Claimants’ cases would be disproportionately expensive and burdensome.

12.3. It is expressly understood by the Claimants that it is not possible at this stage to predict with accuracy how the court may determine how damages should be calculated; and nor is it possible to predict how the argument between the Claimants and Defendant will clarify how damages should be calculated.

12.4. Any Committee Member may require the decision of the Committee under this Distribution of Global Damages Clause to be referred prospectively to arbitration in accordance with clause 12.5 below. The Committee will then instruct Harcus Parker to prepare a submission to the Distribution Arbitrator which sets out the background and the factors influencing the Committee’s decision.

12.5. The submission to the Distribution Arbitrator will include the following instructions:

(a) This matter is being referred to arbitration because the Committee appointed by the Claimants in the Proceedings either disagrees as to what is the correct and fair manner to distribute the Overall Claim Proceeds between the Claimants or because it wishes to be reassured that an offer made is fair as between different categories of Claimants, and / or that the method of distribution of the Overall Claim Proceeds it agrees is appropriate.

(b) The Proceedings are conducted subject to agreements between the Claimants which contain an agreement to work together which provides that if there is a settlement before trial, it will not be necessary to take account of the individual issues of each Claimant’s case if it would be expensive and burdensome to do so.

(c) At the outset of the Proceedings, it was not clear what factors would be relevant to the distribution of global damages.

(d) The issue to be decided, as to which the arbitrator has complete discretion, is whether each Claimant who is able to prove his or her entitlement to a share of the Overall Claim Proceeds should receive the same amount whether they should receive a payment which reflects other factors, and if so what factors.

(e) In reaching his or her determination, the arbitrator is asked to bear in mind the principles underlying this agreement and the additional cost and complexity that may flow from distinguishing between different groups of Claimants.

12.6. The Distribution Arbitrator’s decision will be binding on all Claimants, so that no Claimant may subsequently challenge it.

12.7. The costs of instructing the Distribution Arbitrator and of the Distribution Arbitrator shall be borne by the Overall Claim Proceeds after the distribution of the Solicitors’ Fee.

13         Recovery of Damages and Costs

Notwithstanding any other provision of this agreement, and subject to the terms of the DBA, if any of the Overall Claim Proceeds are paid prior to the disposal of any part of the Proceedings or prior to any payment in respect of costs, a retention will be made from the damages of an amount which in the reasonable view of Harcus Parker and the Committee will be sufficient to fund the costs to be incurred in connection with:

13.1. such parts of the Proceedings as have not at that stage been settled or finally determined by the court; and/or

13.2. assessment proceedings or negotiating the recovery of costs with the Defendants.

14         General Matters Relating to Settlement and Distribution

14.1. The Claimants recognise that the entire or part of the amount of any settlement (before the deduction of the Solicitors’ Fee) may be subject to taxation. The Claimants further recognise that Harcus Parker has no duty to advise them in relation to taxation matters and is specifically not retained to do so.

14.2. The Claimants have each agreed with Harcus Parker that it will act for them in the Claims under the DBAs and recognise that Harcus Parker will, in reliance on the DBAs, incur considerable expense and undertake a considerable amount of work in the expectation of being paid the Solicitors’ Fee in the event that each of the Claims are successful. The Claimants and each of them warrant that they will not seek to settle or accept an offer to settle directly with the Defendants or any associate of the Defendants:

(a) without the Defendants paying the Solicitors’ Fee under the relevant DBA to Harcus Parker; or

(b) on a basis which frustrates the payment to Harcus Parker of the Solicitors’ Fee.

14.3. If, notwithstanding sub-clause 14.2, any Claimant does settle directly with the Defendant, that Claimant agrees:

(a) that he or she will not spend or transfer away the amount they receive in settlement from the Defendant; and

(b) that he or she will immediately inform the Committee and Harcus Parker that they have accepted a direct settlement and of the amount of such settlement and will transfer to Harcus Parker an amount equal to any sums due to Harcus Parker under the DBA plus VAT.

14.4. The Claimants agree that the Committee should, not without the prior written consent of Harcus Parker, accept any offer of settlement from the Defendants in relation to any Claim which does not include terms that the Solicitors’ Fee be paid directly to Harcus Parker by or on behalf of the Defendant.

14.5. If for any reason it is not possible to give effect to the above agreement, the Claimants agree that the distribution of any of the Overall Claim Proceeds may be effected though the instruction of a class action claims administrator, who may be instructed to distribute the Overall Claim Proceeds in accordance with an agreed formula. The costs of distributing the Overall Claim Proceeds will be paid out of the Overall Claim Proceeds.

15         Commencement

This agreement shall commence on the date that the first Claimant accepts its terms and shall be refreshed at the date each additional Claimant becomes a party to it.

16         Termination

16.1. If a Claimant dies during the course of this agreement the rights and obligations of that Claimant under this agreement shall pass to his or her personal representatives.

16.2. A Claimant who wishes to discontinue his or her claim prior to proceedings being issued on her behalf but after the period of 14 days described below at clause 17 under ‘Your Right to Cancel’ may only do so with the permission of the Committee.

16.3. In addition to requiring the permission of the Committee, a Claimant for whom a claim has been issued after the period of 14 days described below at clause 17 may, as a consequence of the provisions of Part 38 of the Civil Procedure Rules, be able to withdraw only with the permission of his, her or its fellow Claimants or with the permission of the court. The normal position is that a discontinuing claimant is ordered by the court to pay a share of the Defendants’ costs up to the date of discontinuance. Any such court order would be the sole responsibility of the discontinuing Claimant. It is very unlikely that the payment under any such court order would be covered by insurance.

16.4.  If any Claimant ceases to be a party to this agreement, the obligations contained in this agreement (subject always to the terms of the DBA which, if they conflict with the terms of this agreement, shall take precedence) shall remain in full force and effect in relation to the departing Claimant’s liabilities (if any) for Claimants’ and Defendants’ costs incurred up to the end of the calendar month in which the departing Claimant ceases to be a party to this agreement.

16.5.  In the event of one or more Claimants ceasing to be a party to this agreement for any reason it is further agreed that the obligations of the remaining Claimants one to another will continue in all respects.

17         Your right to cancel

17.1. Each Claimant is entitled to cancel this agreement without incurring any liability to Harcus Parker in respect of it at any time until the expiry of the fourteenth day after the day on which he, she or it enters into the agreement in accordance with clause 20.2. If you wish to cancel the agreement, then you must notify Harcus Parker of your desire to do so in writing. You may inform Harcus Parker by email or by letter to Harcus Parker Limited, 7^th Floor, Melbourne House, 44-46 Aldwych, London WC2B 4LL, or by email to mp@harcusparker.co.uk.

17.2. When you receive an email confirmation of your acceptance as a Claimant in the Proceedings, you will be provided with an explanation of your right to cancel in the form annexed to this agreement.

18         Severability

If any of the provisions of this agreement is found by a court or other competent authority to be void or unenforceable, such provision shall be deemed to be deleted from this agreement and the remaining provisions of this agreement shall continue in full force and effect. Notwithstanding the foregoing, the parties shall thereupon negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision so found to be void or unenforceable.

19         Law, jurisdiction and disputes resolution

19.1. This agreement shall be governed by the laws of England and Wales.

19.2. You and each of the Claimants agree to submit any dispute arising out of or in connection with this agreement including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of the arbitration shall be London. In the event that an issue is referred to arbitration, the arbitrator’s decision will be binding on all Claimants, so that no Claimant may subsequently challenge it.

20         Execution

20.1. In making this agreement available for signature, Harcus Parker has given its agreement to its terms. In addition, Harcus Parker will execute a single copy of the agreement and such execution shall be evidence of Harcus Parker’s agreement with every Claimant who agrees to this agreement.

20.2. You and each of the Claimants confirm your irrevocable agreement to the terms of this agreement electronically by giving your electronic consent to it. This agreement is intended to apply as between all of the Claimants who agree to this agreement, with the intention that any Claimant who agrees to this agreement will have the obligations set out in this agreement to all other Claimants, irrespective of the date on which any Claimant agreed to this agreement.

Schedule 4 - Glossary of Defined Terms

In the DBA, the LMA, Harcus Parker’s engagement letter and the Privacy Notice, the following terms have the following meanings.

Adverse Costs

Any costs which the Claimants are ordered to pay by the court in respect of any Claim they pursue.

Claim(s)

Each Claimant’s individual claim (which may comprise more than one claim in law) against the Defendant, brought as part of the Proceedings, and arising out of the Claimant’s residential mortgage.

Claim Proceeds

The sum total of any and all value due to and/or received by, on behalf of, or in lieu of payment to, a Claimant in connection with or arising out of the Claim or the Proceedings as a result of any judgment, award, order, settlement arrangement or compromise, (including payment of any damages, compensation, interest, restitution, recovery, judgment sum, arbitral award, settlement sum, compensation payment), whether in monetary or non-monetary form, whether actual or contingent, and before deduction of any taxes which the Claimant may be liable to pay thereon.

Such Claim Proceeds may include Financial Ombudsman determinations and / or payments under the Financial Services Compensation Scheme. 

For the avoidance of doubt Claim Proceeds do not include: i) any costs, barristers’ fees or Disbursements paid or payable by another party to the Proceedings; and ii) any future benefit received by any Claimant as a result of the Proceedings resulting in the Defendant reducing interest rates on that Claimant’s outstanding mortgage or loan.

Claimant and Claimants

Individuals who have instructed Harcus Parker to bring a Claim against the Defendant as part of the Proceedings and whose names, addresses, and the date on which they instructed Harcus Parker appear in a register kept by Harcus Parker.

Committee

A group of not more than [9] Claimants to whom authority to take certain decisions in respect of the Proceedings is delegated by each Claimant.

Committee Member(s)

The Initial Committee Members plus any individuals who subsequently join the Committee, minus any Initial Committee Members who cease to be members of the Committee.

Confidential Information

Information which is confidential to the Claimants or Harcus Parker.

Data Controller

According to UK Data Protection Laws, the data controller is responsible for deciding why and how Personal Data is processed. Harcus Parker is the Data Controller responsible for the Processing of your Personal Data in relation to the Claim (including any related Processing undertaken on the Website or elsewhere).

DBA Regulations 2013

The Damages-Based Agreements Regulations 2013 (Statutory Instrument 2013/609).

Defendant and Defendants

NRAM Limited, Landmark Mortgages Limited and Topaz Finance Limited (trading as Heliodor)

Disbursements

The expenses which Harcus Parker will need to pay in order bring the Proceedings (excluding barristers’ fees which are included in the Solicitors’ Fee).

These include:

i) the fees of experts;

ii) Court fees (where applicable);

iii) the payment of insurance premiums (if relevant, and whether or not such premiums are payable up front or only in the event of success);

iv) the costs, as applicable, of data rooms, disclosure platforms, and electronic bundling systems; and

v) couriers and other document production costs such as photocopying charges.

Distribution Arbitrator

A retired High court Judge, to be nominated by the Committee on the advice of Harcus Parker and, in the absence of a nomination, to be nominated by the Chairman for the time being of the Chancery Law Bar Association.

Generic Costs

Costs which relate to elements of the Proceedings which are applicable to all of the Claimants.

Harcus Parker

Harcus Parker Limited of Melbourne House, 44-46 Aldwych, London WC2B 4LL.

Individual Costs

Costs which relate to elements of Claimants’ individual claims which are solely attributable to individual Claimants, where those individual Claimants have not been selected as ‘test cases’ or ‘lead cases’ or the like.

Individual Rights

UK Data Protection Laws give you individual rights so that you keep control of your Personal Data. Any reference to individual rights in this privacy context concerns the rights listed at Clause 6 of the Privacy Notice.

Initial Committee Members

The members of the Committee who are present at and who approve the minutes of the first Committee meeting.

Issue Costs

The costs of dealing with specific issues which apply to some but not all Claimants.

Legal Basis

Harcus Parker are always required to rely on a legal basis to Process Personal Data.

Reference to legal basis means any, some or all of the following six data protection legal bases: consent, contract to which you are a party, legal obligation, vital interest, public task, and/or legitimate interest.

Majority

More than 50%.

TSB Claimants

Individuals who have instructed Harcus Parker to bring claims against parties other than the Defendants which arise out of other ex-Northern Rock PLC mortgages now owned by TSB Bank Plc

Notice

All invoices, notices, documents, consents, approvals, or other communications sent by Harcus Parker, a Claimant or the Committee regarding the DBA or the LMA.

Obstructive Claimant

A Claimant who, in Harcus Parker’s reasonable opinion, has persistently failed so unreasonably to comply with requests for cooperation that they are obstructing the efficient progress of the Proceedings.

Other Defendant

Anyone other than the Defendants who Harcus Parker advises you to bring a claim against.

Overall Claim Proceeds

The Claim Proceeds of all the Claimants taken together.

Personal Data

Any information which directly or indirectly identifies you. We have listed the main Personal Data we Process about you at Clause 2 of the Privacy Notice.

Proceedings

The Claims of all Claimants together.

Process, Processing and Processed

Any activity impacting Personal Data, including accessing, collecting, holding or anonymising, is considered processing Personal Data under UK Data

Protection Laws.

Proportionate Share

A fraction of which the numerator is the value of the Claimant’s Claim and of which the denominator is the aggregate value of all the Claims of those Claimants who, as at the date of the relevant calculation, are parties to the LMA and who participate in the Proceedings.

For the purposes of calculating the Proportionate Share, the ‘value’ shall mean the amount claimed by each Claimant, unless the Committee, upon Harcus Parker’s recommendation, decides upon a different definition of value for the purposes of this clause, in which case the Committee shall procure that the Claimants are notified.

Purpose for Processing

We are required to disclose the reason for Processing your Personal Data; that is what we call the purpose for Processing. We have detailed our key purposes at Clause 2 of the Privacy Notice.

Questionnaire

Any questionnaire concerning the Claim, made available to you in any manner and which you will or may have already filled in so that you can express your interest in, or formally join the Claim.

Social Platforms

According to UK Data Protection Laws, we are also responsible for the way we Process your Personal Data we obtained through our social accounts.

Solicitors’ Fee

An amount of money equivalent to 35% plus VAT of a Claimant’s Claim Proceeds.

TSB

TSB Bank PLC of Henry Duncan House, 120 George Street, Edinburgh EH2 4LH.

UK Data Protection Laws

UK Data Protection Laws means the UK General Data Protection Regulation, the Privacy of Electronic Communications Regulations, the Data Protection Act 2018 and any other local data protection laws applicable to the UK.

Website

Our website concerning the Claim is located at the following URL www.mortgageprisonersclaims.com

Win

The resolution of a Claim which results in a Claimant recovering or becoming entitled to any Claim Proceeds.