Civil Litigation case update – December 2023
An update on cases from the Civil Litigation Team
Group litigation under the spotlight in the context of military noise induced hearing loss
The Civil Procedure Rules allow for a number of ways in which to conduct multi-party litigation. Abbott and others v Ministry of Defence  EWHC 1475 (KB) and Abbott and others v Ministry of Defence  EWHC 2839 (KB) place the spotlight on two of the available procedures: i) the use of a single claim form for multiple joint claimants under CPR 7.3, and ii) group litigation orders (GLO) under CPR 19.21 to CPR 19.26 and Practice Direction (PD) 19B. The ‘Abbott litigation’ concerns current and former military personnel who claim damages from the Ministry of Defence (MoD) for military noise-induced hearing loss (M-NIHL).
In 2021, Hugh James solicitors issued a single claim form against the MoD on behalf of David Abbott and 3,558 others. The case came in front of Master Davidson for case management in July 2022, where he took the view that the use of an ‘omnibus’ claim form to commence proceedings on behalf of 3,500-odd claimants was not permitted under the CPR. As a result, Master Davidson ordered each claimant named on the “omnibus” claim form to issue a separate claim by issuing a new claim form and paying the appropriate fee. A key reason for this decision was the Master’s interpretation of CPR 7.3 which provides for multiple joint claimants to use a single claim form where the claims can be “conveniently disposed of in the same proceedings”. The Master equated “disposed of in the same proceedings” with “disposed of in a single trial” and concluded that “there obviously could not be a trial of 3,500 claims at one sitting.” 
The Claimants successfully appealed the Master’s decision, and in June 2023 the divisional court in Abbott v Ministry of Defence  EWHC 1475 (KB) observed:
‘The question here was not whether the full cohort of 3,000+ M-NIHL claims encompassed by the omnibus claim form, as amended, could be tried at a single trial hearing; it was whether that cohort of claims had sufficient commonality of significant issues of fact that it would be useful or helpful, in the interests of justice, that any determination of those issues in proceedings brought by any one of the claimants against the MoD in respect of their M-NIHL injury claim would be binding also as between the MoD and any other of the claimants in respect of their such claim.’ 
The court noted that the CPR provide no absolute limit on the number of claimants on a single claim form. Weight of numbers alone is not relevant to whether it is proper to use a single claim form; rather, the determining feature is the convenience test under CPR 7.3, which states that a single claim form should only be used to start multiple claims (in the cause of action sense) “which can be conveniently disposed of in the same proceedings”. The degree of commonality between the causes of action will generally be the most important factor in determining whether it would, or would not, be convenient to dispose of them all in a single set of proceedings.
In October 2023, the 3000+ Abbott claimants applied for a GLO. That application was supported by the Defendants, but opposed by some 5000 claimants in other proceedings represented by firms of solicitors other than Hugh James solicitors. In Abbott and others v Ministry of Defence  EWHC 2839 (KB) the court concluded that the Abbott claimants failed to make out their case that the threshold requirements for a GLO are met. In reaching this decision, the court took into account the fact that there had been a “wholesale failure” by the claimants’ solicitors to comply with Practice Direction 19B. For example, instead of consulting the Law Society’s Multi Party Action Information Service and forming a solicitors’ steering group to properly identify one firm of solicitors to take the lead, the claimants’ solicitors have simply assumed that they will be that firm. As a result, there is no common approach to this application between Hugh James solicitors (acting for the 3000+ Abbott claimants) and the 36 firms of “other solicitors” representing some 5000 claimants. The court noted at paragraph 46:
‘It was common ground before us that, if a GLO were to be granted, the MoD would apply to stay all other M-NIHL cases around the country. Accordingly, the effect of a GLO would be to restrict the access to the Court of many claimants not represented by [Hugh James Solicitors] until the lead cases within the GLO are resolved, a period unlikely to be less than two years. In our judgment, the court should be slow to take a step that would have that consequence, especially where large numbers of claimants would be disadvantaged or delayed in their pursuit of proper compensation, and where the procedures for achieving unanimity of approach have been ignored by the applying firm.’
Although the court did not exclude the possibility that a GLO may be justified in the future, it stressed that any renewed application would need to evidence that the guidance in Practice Direction 19B had been followed.
In addition to these procedural errors, the court was also unpersuaded that a GLO would be beneficial to the administration of justice or an effective means of saving costs. The circumstances in which the thousands of claimants, i.e., the 3000+ Abbott claimants and the other 5000 claimants, sustained their injury vary considerably and the allegations of breach of duty are diverse. In view of the fact-sensitive nature of these individual claims, the findings in the lead cases would not be dispositive of many of the other claims. These other claims would still need to be thoroughly investigated and presented, meaning a duplication of effort would not be avoided.
Aside from the guidance around group litigation generally, the Abbott litigation raises noteworthy subject-specific issues including the suitability and sufficiency of diagnostic criteria standardly used in claims involving NIHL in the context of M-NIHL (see the list of “common issues” at paragraph 78 in Abbott and others v Ministry of Defence  EWHC 1475 (KB)).
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