Group Litigation Orders not always the appropriate method to resolve multiple claims

The High Court rejected an application for a Group Litigation Order (GLO) for military noise induced hearing loss (mNIHL) claims from a claimant firm due to the lack of utility of a GLO. The lack of utility was caused mainly by the applicant claimant firm’s wholesale failure to comply with the requirements set out in CR PD19B for obtaining a GLO.  The application was supported by the defendant but opposed by other claimant firms due to those failures.  Given the decision in Abbott and others v Ministry of Defence [2023] EWHC 2839 (KB), it is possible that, even if the requirements in CPR PD19B had been followed, the application would have been refused.

This latest decision in the pursuit of increasing number of mNIHL claims against the MoD demonstrates that a GLO will not necessarily be accepted as an appropriate method to resolve large numbers of similar claims.  The Court had to consider the usual GLO factors of whether a number of claims giving rise to common or related issues could be resolved by a GLO, but without the applicant claimant firm having complied with the requirements set out in CPR PD19B.  The defendant supported the application for a GLO, but this did not resolve the deficiencies created by the failure to comply with CPR PD19B.

GLO Application decision

In considering the impact of granting the GLO would have on access to justice, Garnham J referred to the words of Senior Master Fontaine in VW NOx Emissions Group Litigation (Crossley v Volkswagen Aktiengesellschaft) [2018] EWHC 2308 (QB):

“Group procedures are seeking, so far as possible, to ensure that where there are a multiplicity of claimants, claims, and issues, they are treated, for all practical purposes, as one claim. The structures are intended to enable the defendants to conduct themselves as they would if they were facing a claim by one or more claimants in a more straightforward fashion.”

In failing to consult with other claimant firms representing almost 5000 other claimants, resulting in 36 other claimant firms opposing the GLO application, the applicant claimant firm made it impossible for the goal of a group action to be realised.  The multiplicity of claims would persist, with no unified approach to the claims possible.  There would also be an express adverse impact on access to justice if the GLO was granted as claims not in the GLO would likely be stayed, even those on the brink of settlement.

Although the GLO would only be binding on the parties to the GLO, as it would be a High Court authority it would be binding on the lower County Court thus requiring challenges to be brought in the High Court unnecessarily.  It was also importantly found that, given the considerable variation in the circumstances of individual claims, decisions on the lead cases in the GLO, if granted, would not necessarily be binding on the claims part of the GLO.  This significantly reduces the utility of a GLO.  Garnham J referred to the decision of Durrheim v Ministry of Defence [2014] EWHC 1960 (QB) in which it was decided that the efficiency of centralised management of multiple claims was not sufficient on its own to grant a GLO where the facts of claims within the GLO varied widely, so as to make the GLO of limited use.

The Court addressed other grounds submitted in support of the GLO application, rejecting assertions that a GLO would prevent inconsistent judgments, the need for the parties to incur costs travelling to attend trials and that the costs of obtaining evidence would be duplicated.  There was no evidence submitted in support of these submissions.  The Court noted in support of its rejection of these assertions that, out of over 4,000 mNIHL claims which have been settled over the past 5 years, only 2 or 3 have progressed to trial.

GLO suitability

Even if the applicant claimant firm had complied with CPR PD19B and arrived at an agreed approach to the claims, it is arguable whether the application would have been successful.  Considering the required utility of a GLO of being able to resolve multiple claims as a single claim due to common or related issues, as outlined by the comments from VW NOx Emissions Group Litigation  and Durrheim, the considerable variation between the claims meant that decisions on lead claims in a GLO would not have facilitated settlement of non-lead claims.  A coordinated GLO would also have prevented resolution of claims capable of settlement for the duration of the GLO.

Comment

The obstacles in obtaining a GLO are well established, but those obstacles will be insurmountable if the requirements for group actions in the CPR are not followed.  Even if those requirements are followed a GLO is not guaranteed simply by virtue of a high volume of claims.  The key requirement of common or related issues allowing claims to be managed effectively as one action must be satisfied.