MERCEDES LITIGATION MGMT AGREEMENT

Charles Lyndon is a boutique litigation firm based in London. We have particular expertise in financial services, environmental (including non-native invasive species), consumer protection, transport, telecommunications, sports and entertainment.

MERCEDES LITIGATION MANAGEMENT AGREEMENT

Annex C

This Litigation Management Agreement (“LMA” or “Agreement”) is an agreement between you and all the Claimants in the group litigation (including any settlement discussions or negotiations) in relation to Mercedes NOx emissions (the “Mercedes Group Matter”) who have instructed Charles Lyndon Limited (“Charles Lyndon”). In the LMA, Charles Lyndon shall include any and all of its lawful agents. The LMA is a contract between you and Charles Lyndon in addition to being a contract between you and the other Claimants.

The LMA:

provides for the appointment of a committee (the “Committee”) to, if and where necessary, take decisions in relation to the Claimants’ participation in the Mercedes Group Matter and sets out:

  • how the Mercedes Group Matter will be managed, including how costs will be shared between the Claimants, how information will be shared with the Claimants and how decisions will be taken by the Committee; and
  • the obligations of the Claimants to each other.

DATED AS AT THE DATE OF YOUR ACCEPTANCE OF THE TERMS OF THE AGREEMENTS BETWEEN:

(1)          You, and all those who enter into a counterpart of this Agreement (each referred to as a “Claimant” and together the “Claimants”).

AND

(2)          Charles Lyndon.

BACKGROUND

A. The Claimants are, or were, owners (either by way of outright purchase or by way of a hire purchase, leasing agreement or Personal Contract Purchase Agreement) of Mercedes vehicles which were fitted with a ‘defeat device’ or were subject to a voluntary software recall and are claiming for damages against the Opponent(s) (the “Claim”).

B. The Claimants will first try to negotiate a settlement to the Claimants’ claims without issuing proceedings. However, it may be necessary for the Claimants to begin and / or join proceedings (the “Proceedings”) against Daimler AG, and any other party against whom Charles Lyndon and the Committee consider it prudent to begin or join proceedings against (the “Defendants”).

C. The Claimants have all confirmed that they understand and appreciate the following:

    • the risks of the Proceedings (the “Risks”);
    • their obligations to the court; and
    • the nature of the allegations that may be pursued in the Proceedings.

They have also all authorised a director (or person of similar seniority) of Charles Lyndon or of its lawful agents or assigns to, if required, issue a claim on their behalves and/or to sign Statements of Truth.

D. This Agreement confirms certain aspects of the process by which the Mercedes Group Matter will be managed, this includes:

    • the role of the Committee;
    • how information will be shared between the Claimants;
    • how costs will be dealt with; and
    • how the Claimants’ costs, liabilities (including any costs of the Defendants that the Claimants may be ordered to pay in certain circumstances, referred to as “Adverse Costs”), and any recoveries from the Claim will be apportioned and, where relevant, distributed.

E. The Committee has entered or may enter into the following documents on the Claimants’ behalf:

    • in relation to Adverse Costs, one or more After the Event insurance policies (the “Policy/Policies”) and/or an agreement that a litigation funder will indemnify the Claimants against some or all of the risk that the Claimants are ordered to pay Adverse Costs, (the “Indemnity”); and
    • a Priorities Agreement which may be entered into with a litigation funder or third party.

F. The general effect of the Policy and/or the Indemnity would be that the Claimants’ own costs of the Proceedings would be dealt with under the DBA and that any Adverse Costs would be covered by the Policy and/or the Indemnity, subject to the Risks.

G. In this Agreement, the “Claim Proceeds” includes all and any value due to and/or received by, directly or indirectly, on behalf of, or in lieu of payment to, any of the Claimants in connection with or arising out of the Claim. This may be as a result of any judgment, award, order, settlement, arrangement or compromise whatsoever and includes payment of any damages, compensation, interest, restitution, recovery, judgment sum, arbitral award, settlement sum, compensation payment, costs and interest on costs, whether in monetary or non-monetary form, whether actual or contingent, and is before deduction of any taxes or any other statutory withholdings which any of the Claimants may be liable to pay.

IT IS HEREBY AGREED AS FOLLOWS

1. Declaration of Common Interest and Purpose

1.1 It is accepted that there are variations in the Claimants’ individual circumstances, in particular in respect of which vehicle they own or owned and how many vehicles they own or owned.

1.2 Despite this, the Claimants agree that they have a common interest in the Mercedes Group Matter. The Claimants warrant by entering into this Agreement that they have no interest adverse to the success of the Claim, Proceedings and/or settlement.

1.3 The Claimants’ common interest is in attempting to secure the highest possible damages for the Claimants. It is understood that if a judgment is made by the court, the court may order that some Claimants are compensated in a different way from others.

1.4 However, if there is a settlement, the Claimants understand that it is likely that no detailed account will be taken of the individual merits of individual Claimants’ cases (if any) and that the overriding policy will be to treat Claimants equally on the basis that adjudicating between individual Claimants’ cases would be disproportionately expensive and burdensome.

1.5 Nevertheless, the Claimants accept that in order to achieve some level of fairness within the Claimant group it may be necessary to distinguish between different categories of Claimant. If necessary, this will be undertaken in accordance with the Distribution of Global Damages Clause below at clause 8.

2. Sharing of Information, Confidentiality and Legal Professional Privilege

2.1 Information confidential to the Claimants shall be referred to as “Confidential Information”. The Claimants agree that Confidential Information supplied to Charles Lyndon in relation to the Mercedes Group Matter may be shared with third parties where necessary including a litigation funder (“the Funder”)  any third party your claim is assigned, subcontracted or otherwise transferred to or any agent Charles Lyndon appoints.  The Claimants also agree that the duty of confidentiality owed to them individually by Charles Lyndon in respect of the facts of their individual claims disclosed to Charles Lyndon by the Claimant or by any other party in or third party to the Proceedings and any documents produced by them or to them through disclosure,  shall be waived as against Charles Lyndon, the Funder, other Claimants and the Committee in so far as Charles Lyndon considers it necessary or helpful to compare the facts of individual claims.  In either case, the Claimants’ Confidential Information will be shared on terms of confidentiality and without any waiver of privilege.

2.2 Charles Lyndon shall be authorised to share Confidential Information with any other solicitors’ firms with whom they may subsequently cooperate with or assign, subcontract or otherwise transfer your claim to.

2.3 To allow efficient communication and management of the claims, Charles Lyndon shall be authorised to report to the Claimants as a body on the facts underlying each Claimant’s claim, this may include facts as stated in the evidence disclosed by the Defendants.

2.4 The Claimants agree that they will disclose to Charles Lyndon the fact of and terms of any offer to settle made to any individual Claimant in relation to the Mercedes Group Matter and that these may be disclosed by Charles Lyndon to any other Claimant and to the Committee or any other relevant committee.

2.4 The Claimants further agree that, if Charles Lyndon considers it to be necessary or helpful, it may use information or documents from one Claimant’s individual claim in any other Claimant’s individual claim or in the Mercedes Group Matter in general.

2.6 Any information shared amongst the Claimants and between the Claimants and the Committee pursuant to clauses 2.1 to 2.5 above shall be kept 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 undertake 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.

2.7 If a Claimant ceases to be a party to this Agreement for any reason, his duty of confidentiality shall continue with full force and effect.

2.8 The Claimants agree that Charles Lyndon’s duty to report to their clients shall be satisfied by Charles Lyndon reporting to the Committee.

2.9 All communications between Charles Lyndon and any or all of the Claimants 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.

2.10 The Claimants agree that they will not disclose to any person who is neither a Claimant nor a professional adviser to a Claimant with a duty of confidentiality to that Claimant any communication, including any advice, received from Charles Lyndon or the Committee in connection with the Mercedes Group Matter or Proceedings.

2.11 The Claimants agree that Charles Lyndon may instruct a third-party firm to manage some of the administrative burden of the Mercedes Group Matter or Proceedings and, in particular, to maintain a secure website to facilitate communication and the exchange of information between the Claimants, the Committee and Charles Lyndon and may instruct a third-party claims administrator to administer any Claim Proceeds.

2.12 The Claimants acknowledge that Charles Lyndon has entered into or may enter into an agreement with the Funder under which the Funder will advance sums to Charles Lyndon by way of working capital for the claims in return for payment out of the fees payable to Charles Lyndon in the event that the claims succeed. The Claimants agree that Charles Lyndon may share information about the claims, including information which is subject to legal professional privilege, with the Funder for that purpose.  Charles Lyndon agrees only to do so if the Funder agrees (a) only to use such information for that purpose; (b) to keep such information confidential; and (c) to maintain any privilege in the information.

3. Claimants’ Costs

3.1 Unless agreed otherwise in writing with Charles Lyndon, the Claimants’ liability for costs will be provided for by the terms of the Engagement Letter, the DBA and any Policy.

3.2 The Claimants agree so far as may be possible to run the common elements of their separate claims jointly, and for the common costs (“Common Costs”) to be shared in accordance with this Agreement. The Common Costs shall be deemed to include the following:

3.2.1 the premium(s) of any Policy or Policies entered into on the Claimants’ behalves; and

3.2.2 the costs of building the Claimant group (including the costs of attending on potential Claimants, whether or not they subsequently join the group and the costs of promoting the Mercedes Group Matter to other potential Claimants, including the costs of establishing and maintaining a case website, PR costs and advertising costs).

3.3 Elements of Claimants’ individual claims which are unique to individual Claimants are defined as “Individual Costs”. The costs of dealing with specific issues which apply to more than one but not all Claimants will be treated as Common Costs.

3.4 The Claimants agree that, if appropriate, the Proceedings will be managed under a Group Litigation Order (“GLO”) which means an order of the Court under CPR 19.11 in the Proceedings providing for the case management of the Claimants with other groups of claimants to the Claim and that the costs of any test case within any proceedings will be treated as Common Costs.

3.5 As further set out in clause 4 below, by entering into this Agreement each Claimant agrees that, from 11 February 2019, his or her share of costs shall be dealt with under the DBA.

3.6 The Claimants authorise Charles Lyndon to incur legal and other professional costs and disbursements. These costs and disbursements may include but are not limited to the fees of Leading and Junior Counsel, experts, PR professionals, the suppliers of case management and document management software, and costs draftsmen.

3.7 Pursuant to the terms of the DBA, the Claimants agree as follows:

3.7.1 Charles Lyndon’s own fees and Counsel Fees are covered by the DBA, which provides that the only fee they may charge to the Claimants is a contingency fee if the Claim is successful.

3.7.2 Charles Lyndon will fund Expenses on behalf of the Claimants while the Claim is continuing, subject to the Claimants’ liability to pay those Expenses as set out in the DBA.

3.8 The Claimants further agree that, in respect of Common Costs, Charles Lyndon reporting to the Committee will be a sufficient report to them and that Charles Lyndon will have no further duty to report on Common Costs to the Claimants directly. Charles Lyndon will have no duty to produce itemised reports showing each Claimant’s Proportionate Share of Common Costs, save for at the conclusion of the Proceedings or any settlement.

4. Costs Sharing

4.1 The Claimants agree that, unless the court orders otherwise, the amount of costs referable to each Claimant and payable under the DBA shall be the Individual Costs relating to that Claimant together with a proportionate share of the Common Costs calculated by reference to the number of vehicles in respect of which each Claimant claims (the “Proportionate Share”).

4.2 Each Claimant agrees that Charles Lyndon is entitled to charge them a Proportionate Share of all work undertaken from 11 February 2019.

4.3 The Claimants recognise the Proportionate Share as defined in this Agreement is based on what the Claimants will claim and that the result of the Proceedings or any settlement may be that the actual relationship between a Claimant’s damages and the overall damages awarded may differ.

4.4 The Claimants agree that Charles Lyndon if appropriate should apply to the court for a court order reflecting the agreement at clause 4.1 above. In the event that no such order is made, the Claimants and each of them agree to the following mechanism in respect of their Proportionate Share of costs:

4.4.1 an individual Claimant can require all the other Claimants to provide him with their share of an indemnity in respect of its own liability for Common Costs, each such indemnity in respect of other Claimants’ shares of Common Costs being calculated on the same basis as the Proportionate Share in respect of each individual Claimant’s Common Costs liability, so that, in that event, each Claimant is liable for their own Proportionate Share of the Common Costs and Individual Costs and, further, a share calculated on the same basis as the Proportionate Share in respect of an indemnity for each of the other Claimants’ costs; and

4.4.2 that indemnity will be, in total, a full indemnity.

4.5 by agreeing to accept the indemnity mentioned above in clause 4.4.1, an individual Claimant is required to provide each and every one of the other Claimants with his share of an indemnity in respect of the other Claimants’ own costs, such share being on the basis set out in clause 4.4.1 above.

5. Sharing the Risk of Paying the Defendants’ Costs

5.1 The Risks include that Claimants may be jointly and severally liable in law for Adverse Costs if the Policy or Indemnity is insufficient to and/or in any way fails to cover all of the Defendants’ costs. However, the Claimants agree collectively that the Claimants’ liability for Adverse Costs should be several and not joint.  No single Claimant should bear more than a Proportionate Share of any adverse costs order.  In respect of each Claimant’s adverse Individual Costs, each Claimant will bear a several liability.

5.2 The Claimants agree that, if appropriate, Charles Lyndon should apply to the court for an order reflecting Clause 5.1.

5.3 In the event that no such order is made, the Claimants each accept that any Claimant who is burdened with a greater share should be entitled to recover the difference from his fellow Claimants. The Claimants agree that this right shall not be contested.

5.4 Nothing in this Agreement shall make the Committee or any member of it liable for Adverse Costs, save to the extent that any such member faces a liability in respect of his capacity as a Claimant.

6. The Committee

6.1 If the Committee is constituted then initial members of the Committee (the “Initial Committee Members”) will be appointed by Charles Lyndon.

6.2 The following rules shall govern Committee meetings:

6.2.1 Committee meetings must be held in the presence of Charles Lyndon;

6.2.2 Committee meetings 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 agreed by a Majority of Committee Members’ votes cast (“Majority” in this Agreement means more than 50%);

6.2.3 Committee meetings held by the Initial Committee Members shall be considered quorate where:

6.2.3.1 If membership of the committee is between three and six, where three or more members are in attendance (either in person or virtually);

6.2.3.2 If the number of Committee Members has fallen beneath three, if all remaining members are in attendance (either in person or virtually);

6.2.3.3 If the number of Committee Members has risen to seven or more, if four or more members are in attendance (either in person or virtually);

6.2.4 no one other than a Committee Member or a representative of Charles Lyndon shall be entitled to attend a Committee meeting other than by the invitation of at least three Committee Members or by the invitation of Charles Lyndon;

6.2.5 minutes of all meetings must be taken by Charles Lyndon and approved by the Committee;

6.2.6 the Committee may agree by a Majority of the votes cast to appoint a Chairman and the Chairman may exercise a casting vote in the event of a tied vote;

6.2.7 the Committee may agree by a Majority of the votes cast to dismiss the Chairman and appoint a new Chairman.

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

6.3.1 a person shall cease to be a Committee Member as soon as he or she:

6.3.1.1 retires by notifying each member of the Committee and Charles Lyndon in writing. They may only retire where enough Committee Members remain in office to form a quorum for meetings;

6.3.1.2 dies;

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

6.3.1.4 has a bankruptcy order made against him or her; or

6.3.1.5 is subject to a resolution by a Majority of votes cast by Committee Members at a properly convened meeting of the Committee and with simultaneous consent of Charles Lyndon, that he or she should cease to be a member of the Committee.

6.3.2 the Committee shall appoint a person a new 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 twelve and providing that Charles Lyndon has given its consent).

6.4 The Committee will give instructions to Charles Lyndon in relation to the conduct of the Mercedes Group Matter and Proceedings, including but not limited to:

6.4.1 the execution of documents such as, the Policy or Policies, any Indemnity or any Priorities Agreement;

6.4.2 discontinuance in relation to any individual Claimant;

6.4.3 Charles Lyndon’s cooperation with other firms;

6.4.4 strategy generally;

6.4.5 the commencement and conduct of settlement negotiations;

6.4.6 the acceptance and making of offers to settle;

6.4.7 in relation to the commencement or response to an appeal of any interlocutory or final order in the Claim; and

6.4.8 the assignment or appointment of an agent to enter into and conclude settlement negotiations with the Defendants

6.5 In relation to all matters other than the acceptance and making of offers to settle, the business of the Committee will be resolved by vote and any resolution or decision will require a Majority of the votes cast. In the event of a split vote the Chairman shall have the casting vote.

6.6 In relation to the acceptance and making of offers to settle and the operation of the Distribution of Global Damages Clause, in addition to the decision being made in accordance with Clause 6.5, no vote in favour of the acceptance or making of an offer shall be passed unless Charles Lyndon advises it to be in the best interests of the Claimants as a whole.

6.7 In addition, the Committee will, in relation to the Mercedes Group Matter/Proceedings:

6.7.1 act as the Claimants’ representatives to Charles Lyndon;

6.7.2 ensure that Charles Lyndon report to the Claimants from time to time on the progress of the Proceedings or any settlement negotiations;

6.7.3 ensure that Charles Lyndon report to any insurers in accordance with their requirements;

6.7.4 approve any invoices raised by Charles Lyndon on behalf of the Claimants;

6.7.5 approve Charles Lyndon’ accumulating work in progress; the Committee may appoint an independent costs draftsman to assist them in this respect; and

6.7.8 give instructions as to the distribution of Claim Proceeds to the Claimants.

6.8 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.

6.9 Subject to clause 6.8 above, and subject to a member of the Committee breaching his or her duties of confidentiality, no member of the Committee shall be liable to the Claimants (or any of them) for his or its own acts, neglects or defaults or for any loss to the Claimants incurred in connection with his role as a Committee Member, unless caused through his own fraud or dishonesty.

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

6.11 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.

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

7. Authority of the Committee

7.1 Each Claimant appoints the Committee to be his, her or its agents in relation to the Mercedes Group Matter/Proceedings and confirms that the Committee may give instructions to Charles Lyndon in relation to the conduct of the Mercedes Group Matter and or any Proceedings, including without limitation:

7.1.1 discontinuance by all Claimants, or any one or more of them;

7.1.2 the entry into and conduct of settlement negotiations;

7.1.3 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);

7.1.4 the instruction of Counsel, experts and the incurring of any other third party liability that Charles Lyndon advises is necessary for the conduct of the Mercedes Group Matter or Proceedings;

7. 1.5 the execution of the Policy or Policies;

7.1.6 the negotiation of new terms under which Charles Lyndon will act or for the appointment of an agent or the assignment of the Claimants claims;

7.1.7 strategy generally; and

7.1.8 that the Committee may do any ancillary necessary act and execute any ancillary necessary document.

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

8. Distribution of Global Damages Clause

8.1 The Claimants recognise that if there are negotiations to settle the Mercedes Group Matter or Proceedings with the Defendants, it is highly likely that any offers made will be on a global basis. Such offers may be made on the basis of a global sum for damages with costs to be paid separately (“Global Damages Offer”) or on the basis of a single sum to be paid in full and final settlement of damages and costs (“Global Full and Final Offer”).

8.2 The Claimants specifically authorise the Committee to solicit and make a Global Damages Offer or a Global Full and Final Offer on behalf of all Claimants or a sub-group of Claimants as may be appropriate.

8.3 Where a Global Damages Offer results in a settlement, the Claimants specifically authorise the Committee to distribute the Claim Proceeds, subject to the terms of any Priorities Agreement, by reference to the amounts claimed or by any other method which Charles Lyndon or Counsel advises is an appropriate method of determining a global settlement of damages.  The Claimants agree that the Committee has a discretion to decide which of these methods (and/or a combination of these) is most appropriate.

8.4 The Committee will not instruct Charles Lyndon to make or accept a Global Full and Final Offer unless it has first agreed with Charles Lyndon how the sum proposed to be offered or accepted will be deemed divided between damages and costs. Following acceptance of such an offer, the parts of the sum agreed to represent damages and costs shall each be treated as such for the purposes of the DBAs and all other relevant agreements.  The part representing damages shall then be treated as if it were the result of a settlement following a Global Damages Offer in accordance with this clause 8.

8.5 In giving this authority, the Claimants understand that the effect of this “Distribution of Global Damages Clause” is that no detailed account will be taken of the individual merits of individual Claimants’ cases and accept that adjudicating between individual Claimants’ cases would be disproportionately expensive and onerous.

8.6 It is understood by the Claimants that it is not possible at this stage to predict with accuracy how any court may determine how damages should be calculated; and nor is it possible to predict how any discussions with the Defendants and the ongoing litigation will clarify how damages should be calculated.

8.7 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 this clause. The Committee will then instruct Charles Lyndon to prepare a submission to an arbitrator (the “Distribution Arbitrator”) which sets out the background and the factors influencing the Committee’s decision.  The Distribution Arbitrator shall be a retired High Court Judge, to be nominated by the Committee on the advice of Charles Lyndon and, in the absence of a nomination, to be nominated by the Chairman for the time being of the Chancery Bar Association.

9. Recovery of Damages and Costs

9.1 The Claimants agree that the Claim Proceeds as defined in Recital G shall be paid out in accordance with the terms of the DBA and any Priorities Agreement.

9.2 Notwithstanding any other provision of this Agreement, if any Claim Proceeds are paid prior to the disposal of any part of the Mercedes Group Matter or 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 Charles Lyndon and the Committee will be sufficient to fund the expenses to be incurred in connection with:

9.2.1 such parts of the Mercedes Group Matter or Proceedings as have not at that stage been settled or finally determined by the court; and/or

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

10. Distribution of Claim Proceeds

10.1 The Claimants agree that the distribution of any Claim Proceeds shall be effected through Charles Lyndon and/or their duly appointed agent who will be instructed to distribute the Claim Proceeds in accordance with an agreed formula. The costs of distributing the Claim Proceeds will be paid out of the Claim Proceeds.

11. Commencement

11.1 This Agreement shall commence on the date that the first Claimant accepts its terms.

12. Execution by Charles Lyndon

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

13. Termination

13.1 If a Claimant dies during the course of this Agreement the rights and obligations of that Claimant under this Agreement shall pass to his personal representatives.

13.2 Any Claimant who is found to have brought a fraudulent claim (a “Fraudulent Claimant”) risks having this reported to the police and being subject to a criminal prosecution. In the event that it is established that a claim is being brought dishonestly, the Committee acting on behalf of all other Claimants and Charles Lyndon may elect to jointly terminate this Agreement.  Charles Lyndon will also be entitled to terminate the DBA with the Fraudulent Claimant with the consequences set out therein.

13.3 A Claimant who wishes to discontinue his claim prior to being joined to any Proceedings but after the period of 14 days described below at clause 14 under “Your Right to Cancel” may only do so with the permission of the Committee.

13.4 In addition to requiring the permission of the Committee, a Claimant who is joined to the Proceedings after the period of 14 days described below at clause 14 under Your Right to Cancel may, as a consequence of the provisions of Part 38 of the Civil Procedure Rules, be able to withdraw only with the permission of the fellow Claimants or with the permission of the court, if Proceedings have been issued. 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 any Policy or legal expenses insurance.

13.5 In addition, if a Claimant is permitted by the Committee to discontinue prior to the resolution of the Mercedes Group Matter or Proceedings, that Claimant will be deemed to have terminated their DBA with Charles Lyndon with the consequences set out therein.

13.6 The same consequences will apply to any Obstructive Claimant (as defined in clause 15.6 below) whose Claim is required to be discontinued under Clause 15.6 below.

13.7 If any Claimant ceases to be a party to this Agreement, the obligations contained in this Agreement shall remain in full force and effect in relation to the departing Claimant’s liabilities for their own costs and any Adverse Costs incurred up to the end of the calendar month in which the departing Claimant ceases to be a party to this Agreement.

13.8 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.

14. Your right to cancel

14. 1 Each Claimant is entitled to cancel this Agreement without incurring any liability to Charles Lyndon 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. If you wish to cancel the Agreement then you must complete the Cancellation Notice at Annex A of the Engagement Letter.

14.2 As well as the Cancellation Notice at Annex A of the Engagement Letter, an explanation of your right to cancel is contained at Section 15 of the Terms of Business.

15. General Matters

15.1 By entering into this LMA you warrant that:

15.1.1 you have not formally instructed another firm of solicitors to bring a claim for you;

15.1.2 you do not act as a solicitor for, or work for a firm of solicitors who act for, other claimants in this or similar litigation;

15.1.3 you are not a member of Defendants’ legal team;

15.1.4 you will not pass on any information about the case to the Defendants’ legal team; and

15.1.5 you are not a member of the board of a company within the Mercedes or Daimler AG Group or other Defendants, and are not closely related to anyone who is.

15.2 A partial completion of the registration process will not result in an individual becoming a Claimant. Charles Lyndon accepts no liability to any person who believes that they are a Claimant but do not appear to have received confirmation of such.

15.3 The Claimants accept that they are responsible for the accuracy of the information they supply to Charles Lyndon and for the consequences of its being inaccurate. In particular, each Claimant is responsible for ensuring that a claim is made on their behalf in respect of the correct Mercedes Group Vehicle and the correct number of Mercedes Group Vehicles and for ensuring that the information supplied as to the purchase and sale prices is accurate.  Charles Lyndon has no duty to the Claimants to check the accuracy of the information supplied.

15.4 The Claimants will each act in good faith in applying this Agreement in accordance with the common objective of managing and pursuing the Mercedes Group Matter or Proceedings to obtain maximum possible damages overall and to share costs liabilities in accordance with the principles apparent from this Agreement.

15.5 The Claimants accept that in joining the Proceedings they are joining a group of Claimants who are collectively pursuing claims that are suitable to be run as group litigation. In doing so, they gain the advantages of economies of scale but no Claimant is being advised on whether they have alternative causes of action in respect of their purchase of the affected vehicles against the Defendants in the Proceedings other than those that are brought collectively through the Proceedings; nor are they being advised on the possibility of their being able to bring different claims against other Defendants.

15.6 The Claimants will respond promptly to communications from the Committee and Charles Lyndon, and will provide all possible assistance to Charles Lyndon in connection with the Claim, including as to:

15.6.1 the signing of any letters of authority that may be required;

15.6.2 the disclosure of documents and data; and

15.6.3 the drafting of witness statements, recognising that if they do not, they will damage their case and those of their fellow Claimants. Because of the importance to all of the Claimants of cooperation, if in Charles Lyndon’s reasonable opinion any Claimant has persistently failed so unreasonably to comply with requests for cooperation that they are obstructing the efficient progress of the Mercedes Group Matter or Proceedings (an “Obstructive Claimant”), Charles Lyndon may ask the Committee to instruct them to take steps formally to discontinue the claim of any Obstructive Claimant, with the consequences described at clause 13.4 and 13.5 above, and all Claimants accept that if they become an Obstructive Claimant, the authority they have given to the Committee will extend to the Committee being empowered to require an Obstructive Claimant’s Claim to be discontinued.

15.7 The Claimants will keep this Agreement and its terms confidential unless required by the court to disclose it in any Proceedings or for the purpose of determining a dispute pursuant to clause 15.8.

15.8 This Agreement shall be governed by the laws of England and Wales and the Claimants agree that any dispute other than in relation to the Distribution of Global Damages Clause at Clause 8 in connection with or arising from this Agreement will be submitted to arbitration by a Queen’s Counsel or retired High Court Judge to be nominated by the Committee and in the absence of such nomination to be nominated by the Chairman for the time being of the Chancery Bar Association. 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.

15.9 All notices, documents, consents, approvals, or other communications (a “Notice”) to be given hereunder shall be in writing and shall be transmitted by first class post, or by facsimile or other electronic means 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 mail shall be deemed to have been duly served two working days after the date of posting.  Any Notice sent by facsimile or other 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).

15.10 The Claimants each confirm their irrevocable agreement to the terms of this Agreement either digitally as communicated by the Representatives (in the case of those Claimants who have internet access) or by signing a hard copy (for those who do not have internet access) and it 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.

 

Lets Talk…

If you have any questions about a specific case we are working on or want to know more about who we are and what we do, then speak to our team. We will get back to you as soon as possible.

IMPORTANT NOTICE: The information you provide will be only used by us to administer your enquiry and any response. Use of this form does not create a solicitor-client relationship and information transmitted will not necessarily be treated as privileged or confidential. If you are a client, please get in touch with your usual firm contact directly for the most timely response.

15 + 3 =