The High Court in London has decided that a group of circa 3,500 claims for noise-induced hearing loss cannot proceed via a single claim form.
Background
In David Abbott & Others v Ministry of Defence [2022] EWHC 1807 (QB), Master Davidson referred to two instances in which Hugh James had unsuccessfully adopted the same approach:
- The first had been before the same Master in 2018 and consisted of 250 claims, referred to as the ‘Turner cohort’. The Master permitted a stay to allow for negotiated dispute resolution and subsequently amended the original case management order such that, in every claim in which the stay was lifted, a separate claim form would be required.
- The second, which had been before Senior Master Fontaine in 2019, consisted of five claims. The Senior Master ruled that it was not permissible to issue all five claims on one claim form, as they “had very little in common other than the fact that they were all for the same type of injury and all against the MOD.”
The “Abbott cohort” consisted of circa 3,500 claims with widely differing facts which had been placed on the same claim form. The Master described them as “far too disparate” and noted that, common defendant and some common themes aside, they consisted of “a huge variety of unitary actions”. He rejected the contention on behalf of the claimants that a trial could be held in relation to 16 proposed lead cases, finding that it would not be dispositive. In determining the case, the Master observed that:
- Whilst CPR 19.1 indicates that “any number of claimants or defendants may be joined as parties to a claim”, CPR 7.3 clarifies that such claims should be capable of being ‘conveniently disposed of in the same proceedings’.
- Around 100 military noise-induced hearing loss claims had been issued by other firms, and there was no basis for treating the Abbott cohort more favourably.
- Placing 3,500 separate claims on one claim form would put an impossible strain on the court’s computerised case management system.
In a judgment that reads as part guidance and part warning, the Master indicated that the claim form had been issued despite the claimants’ solicitors “knowing full well that I (and Senior Master Fontaine) had already ruled that that course was impermissible”. He indicated that the requested stay was inappropriate and that, unless individual claim forms are issued within a period of 6 months, the claims will be struck out. That period reflects the need for the solicitors (Hugh James) to review each claim and consider the position as regards the court fees. Permission to appeal was refused.
Comment
The Master was at pains to state that the rationale for his detailed judgment was to deal “with a point that has now arisen several times in recent multi-party litigation against the MOD and because it has the potential to affect other cases”.
In our view, CPR 7.3 is better suited to a single incident, such as an explosion or a plane crash. It is unclear why, particularly given their earlier attempts, the claimant firm sought to proceed under that provision.
The alternative, which must have been considered, would be a Group Litigation Order (GLO). However, in order to meet the GLO hurdle, there needs to be a genuinely binary and generic set of issues to resolve - by way of example, a date of knowledge or a threshold for the de minimis effects of exposure.
To end as we began, there was just “no common ground to start from”.
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