Limited re-trial in high-value financial services claims

Newly-appointed Acting Deemster Marsh has given judgment in two high-value financial services claims being heard together: Kells & others v Friends Provident International Ltd (ORD 20/0011) / Dickinson & others v Utmost International Isle of Man Ltd (ORD 20/0012) (06.10.26).

Background

The Acting Deemster, formerly Chief Master of the English High Court, Chancery Division, was appointed, in June 2026, in circumstances he described (at § 2) as: “highly unusual, if not unprecedented”.

Each of the two claims comprise a large number of individual claims, which have been case managed and tried together.

Two CMC’s were held in 2022; two in 2023; a PTR; and then, over 20 days in April-May 2024, the trial of Stage 1 of 10 test claims, on limited issues. The Acting Deemster continued (at §§ 8-11):

“8. Despite there having been a trial some 2½ years ago, there is no judgment. The Acting Deemster who tried the Stage 1 trial has now resigned. The parties are left having expended large sums on a complex and lengthy trial without… a judgment. … [T]here needs to be a retrial… The issue… is how can that best be carried out in accordance with the overriding objective…

9. … [T]he position today is deeply unsatisfactory… [N]one of the parties to this claim, or their legal representatives, bear any responsibility for it. The Claimants brought the claim with the assistance of a funder, but understandably the budget for the Stage 1 trial did not include the costs of a retrial. There has been significant prejudice incurred by all the parties and I note that some 24 Claimants sadly have died since judgment was reserved in 2024.

10. … [T]he trial of Stage 1 was conducted with the benefit of the Opus 2 Platform. Daily transcripts of submissions and evidence were prepared and all the documents, submissions and so on were uploaded to the platform and are still available. The court has recordings of the oral evidence at trial.

11. The task for this court of producing a judgment following a trial of which the judge writing the judgment has no knowledge is a formidable one. The closing submissions alone run to over 500 pages. There are complex issues of law and significant differences of approach between the parties about the evidence received by the court at the trial. Furthermore, and importantly, the trial concerned two separate Defendants and individual claims, each of which must be determined. There may be common issues of law, but the facts in each of the two claims (the claim against FPIL and the claim against Utmost), let alone each test claim, are significantly at variance. The task for the trial judgment was never going to be straightforward. In circumstances in which the trial judge has resigned, the task is all the more difficult.”

Summary of claims

The Acting Deemster summarised the claims at §§ 4-7:

“4. … [T]he claims concern losses claimed… in respect of particular funds that were included at their election in, what are termed, Portfolio Bonds. … [T]he bond acted as an investment wrapper and gave investors a very wide range of investments which could be included… [T]he investor, through their IFA, selected the investments that were to be included. Those investments were held beneficially by FPIL, or Utmost… and the investor obtained an interest in notional units which corresponded to the value of the asset held by the Defendants. The value of the units could go up or down as the underlying value changed. If, as occurred in respect of certain funds, the value reduced to nil, the units in the notional fund reduced accordingly.

5. The Claimants seek damages for negligent misrepresentation under [s] 2(1) of the Misrepresentation and Unfair Contract Terms Act 1980, or alternatively, negligent misstatement at common law. They seek in addition, damages for breach of a common law or contractual duty, together with interest and costs.

6. … the trial that took place in April and May 2024 was on agreed issues in respect of ten test claims. In essence the issues were:

(1) Was either one of two representations made?
(2) Were they continuing representations? and
(3) Were they relied upon when entering contracts with the Defendants?
(4) Did the Defendants owe a duty of care in contract or in tort in respect of the terms pleaded…

7. As to the breach of duty claim… the Claimants say that the Defendants were under a duty to carry out… ‘due diligence’ … before accepting funds onto their investment platforms, and to keep the performance of those assets under review. Issues of breach, limitation, causation and loss were not included in the Stage 1 trial.”

Common ground

At § 16, Acting Deemster Marsh identified four points where the parties agreed:

“(1) … that there should not be a full retrial in the sense of a re run of the trial conducted in April and May 2024. This in my judgment is sound. The cost and the complexities involved in running the same trial where there has already been evidence given, is highly unsatisfactory. It is clearly not in the interests of justice to order a full, new trial.

(2) … that no further evidence should be produced.

(3) … that no new case will be permitted to be put forward. … [A]n effort should be made to put this court in the same position that Deemster Corbett was in at the end of the Stage 1 trial.

(4) … that there should be a limited retrial followed by a judgment as quickly as reasonably can be achieved. The issues are about how best to proceed and achieve that objective.”

Decision

Noting that Utmost’s Counsel were also in a 10-week trial commencing in mid-March 2027 – see Parry, Morrison & Pankovas v Utmost International Isle of Man Ltd & others (ORD 21/0011, ORD 23/0009, ORD 24/0045) (02.10.26) (see Coren Law, High Court gives guidance on foreign law evidence (19.10.26)) – at §§ 27-28, the Court listed “several compelling factors” at play:

“27. … (1) The Claimants’ ability to participate on an equal footing with the Defendants. … [A] reasonable opportunity needs to be afforded to the Claimants to resolve their funding issues. The spectre of a retrial … not attended by counsel for the Claimants is deeply unattractive…

(2) There is the question of expedition. Finality within a reasonable period is a crucial element of the proper conduct of a claim. The lengthy period since the end of the trial suggests that there should be a retrial very soon, but expedition may have to cede to overall fairness.

(3) As to fairness… it is I have to say, very hard to achieve. … [A]lmost any course of action that the court proposes will have some degree of unfairness to each party. Fairness of course involves balancing competing, and often irreconcilable, considerations.

28. The sort of factors that I have in mind that are in play here are five:

(1) … It is not possible for the court to turn the clock back.

(2) Significant further delay is highly undesirable, but the Claimants do need time to sort out their funding position.

(3) Placing an impossible burden on Utmost’s legal team would be prima facie unfair.

(4) And this factor is highly significant… the court cannot safely produce a judgment to an adequate standard on its own. There is a need for assistance from the parties. I have a real concern… about making findings of fact in light of the way in which the trial proceeded.

(5) The court should not force the Claimants to participate, or to incur costs, if it is genuinely the case that there is no funding, at least in the short term.”

The Court concluded at § 30:

“Although it would have been highly desirable to hold hearings in December 2026 and January 2027, I am satisfied that this would be unjust given the burden of the Morrison trial that is faced by Utmost. … I have no real option other than to give way to that trial… The further delay is very unattractive, but I consider it is unavoidable in the interest of justice.”

The Court proposed a directions timetable leading to a hearing in September 2027.

Note for practitioners: The timetabling of a limited re-trial in Kells and Dickinson, in unusual case management circumstances, was decided by reference to the overriding objective.

Disclaimer: professional advice should be sought before applying any information in a given case.

For advice on litigation relating to Isle of Man civil procedure, or disputes relating to financial services, contact Coren Law.

See other Coren Law Legal Updates on civil procedure and financial services.

See also Coren Law’s Isle of Man civil procedure portal: Click On | Coren Law.

Photo credit: Adam Smigielski