3,450 CLAIMANTS CAN USE THE SAME CLAIM FORM: DIVISIONAL COURT DECISION ON CPR 7.3.
I am grateful to David Platt KC for sending me a copy of the decision of the Divisional Court in Abbott -v- Ministry of Defence [2023] EWHC 1475 (KB). The Court overturned a previous decision of a Master and allowed 3,450 claims issued on a single claim form to proceed. A copy of the judgment is available here Abbott v MOD approved judgment 16.6.23
” Expressing that affirmatively, in terms of what CPR 7.3 required, the sense is that the level of commonality had to be such that all claims would be resolved, or all but resolved, by the determination of the 16 lead cases. In my view, CPR 7.3 neither states
nor implies such a test. If there are likely to be common issues of sufficient significance that their determination would constitute real progress towards the final determination of each claim in a set of claims, that could be enough for a conclusion that common
disposal rather than separate disposal of that set of claims would be convenient.”
THE CASE
The claimants are bringing an action alleging injury following exposure to noise whilst in the military. All the claims (3,450 in this case) were issued on one claim form. At first instance the Master had to consider the question of whether this was permissible. It was held it was not. The judgment at first instance was considered in detail in a previous post.
THE CLAIMANTS’ SUCCESSFUL APPEAL
Mr Justice Andrew Baker found that the test under CPR 7.3 had been set too high.
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. I thus
agree in substance with the analysis put forward by Mr Steinberg KC (see paragraph 12
above):
(i) CPR 19.1 provides that any number of claimants (or defendants) may be joined
as parties to a claim, i.e. to a set of proceedings commenced by a single claim
form under CPR Part 7 (or equivalent).
(ii) The CPR therefore provide no absolute limit on the number of claimants on a
single claim form. Weight of numbers, without more, is not relevant to whether
it is proper to use a single claim form.
(iii) The qualification to that is CPR 7.3 and its test of convenience. 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”. As White
Book n.7.3.5 says, that is the sole test stated by CPR 7.3, and “In terms neither
the rule nor its related practice direction provides any further test.”
(iv) The governing principle, therefore, is not whether there is a large number of
claimants and/or causes of action. Rather, it is the convenience of disposing of
the issues arising between the parties in a single set of proceedings. The degree
of commonality between the causes of action, including as part of that the
significance for each individual claim of any common issues of fact or law, 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.
72. Within Master Davison’s reasoning, albeit the focus was on the impossibility of a single
final trial of all 3,000+ claims, there are views on commonality, namely that the claims
are “disparate in terms of the periods and circumstances in which each claimant
sustained his or her NIHL. [The claims] have a common defendant and a number of
common themes. But that is all. They otherwise present a huge variety of unitary
claims.” Of the proposal to select and try 16 lead cases, the Master said that would “not
meet the objection. It is not realistic to suppose that the other 3,484 cases would be
resolved or fully resolved by the outcome of the lead cases” (emphasis added).
73. Expressing that affirmatively, in terms of what CPR 7.3 required, the sense is that the
level of commonality had to be such that all claims would be resolved, or all but
resolved, by the determination of the 16 lead cases. In my view, CPR 7.3 neither states
nor implies such a test. If there are likely to be common issues of sufficient significance
that their determination would constitute real progress towards the final determination
of each claim in a set of claims, that could be enough for a conclusion that common
disposal rather than separate disposal of that set of claims would be convenient.
74. I consider therefore that in testing the matter by the impossibility of a single trial
determining all the claimants’ M-NIHL claims in one go, and by setting the
commonality bar too high, Master Davison misdirected himself as to the meaning of
CPR 7.3. It was not suggested that, if that be the conclusion on appeal, the matter should
be remitted to Master Davison for a fresh decision rather than that we assess for
ourselves whether CPR 7.3 was satisfied.
75. In the event, at a further case management conference before Garnham J and Master
Davison sitting together on 21 April 2023, a trial of lead claims was ordered in the MNIHL Litigation with a trial window of Michaelmas Term 2025, on a time estimate
expressed as “16 weeks (10 weeks sitting with what are likely to be three 2 week breaks
for judgment)”. A “list of generic issues” set out in a schedule was approved, but
Judgment Approved by the court for handing down. Abbott et al v MoD
without explanation of, or ruling as to, the legal effect of such approval. The lead claims
to be tried are to be taken from 8 lead cases and 12 reserves, to be identified, the
intention being that the reserve cases be suitable, and made ready, to be tried as lead
cases if lead cases originally selected (or earlier substituted) settle or are discontinued.
Directions were given for pleadings, disclosure, factual and expert evidence, and other
pre-trial steps.
76. Mr Platt KC proposed that it was likely the findings made upon the trial of lead claims
would be treated by the parties as persuasive. However, he was also candid that the
MoD’s formal position was that those findings will not be binding except in respect of
the lead claims that are tried, so the MoD will not be bound as against other claimants
by findings adverse to it, and other claimants will not be bound as against the MoD by
findings adverse to the lead claimants. Mr Steinberg KC did not accept that. It is not
necessary for the disposal of this appeal to resolve that dispute. It suffices to say that
the MoD’s formal position is not self-evidently wrong, but it could not be advanced if
the proceedings were still constituted by the omnibus claim form (or if, to like effect,
the 3,000+ separate sets of proceedings now in existence were all consolidated). On the
face of things, that would seem to make it convenient, as the claimants have said all
along, for there to be a single action.
77. If the commonality across the claims cohort were very limited, there might not be that
convenience after all. But in that case also, it would be difficult to see why trying lead
cases would result in findings that might even have persuasive significance to any real
extent for other cases in the cohort. Thus, the MoD’s acceptance that the approach now
approved by Garnham J is not merely good case management, to avoid the parties
having to deal with a huge practical burden of litigating thousands of claims
simultaneously, but rather there is enough commonality for the content of whatever
may be decided in 8 lead claims, if selected well, to be of real significance for all the
rest, to my mind concedes the convenience of common disposal, whereby it will be put
beyond argument that the significance in question has the character of findings that bind
and not merely findings that may have a persuasive impact.
78. We were taken through the approved list of generic issues during argument. With the
benefit of that list, and of counsel’s explanations of the significance of some of the
issues, and without putting this forward as exhaustive, in my view there are questions
that are likely to be important across the claims cohort as to:
(i) the content of any duty of care during different periods of time, with particular
reference to (a) changes in health and safety at work legislation or regulations
and/or (b) the promulgation from time to time of guidance in relation to military
noise exposure as a health risk;
(ii) the existence or content of any duty of care during training or service overseas;
(iii) the adequacy of standard protective equipment, training and instruction
provided to military personnel;
(iv) the suitability or sufficiency of standard diagnostic criteria for NIHL, and
normal methods for detecting and/or quantifying NIHL, as tools for confirming
(or not) and/or measuring NIHL caused by exposure to excessive noise of
particular types said by the claimants to be particular to the military;
Judgment Approved by the court for handing down. Abbott et al v MoD
(v) the ‘latency issue’ (as it has been called), viz. whether NIHL can be assessed for
all practical purposes as coterminous with any period of exposure to excessive
noise or whether hearing deterioration may occur subsequent to the cessation of
exposure;
(vi) whether and if so to what extent natural or age-related hearing loss is accelerated
by military noise exposure;
(vii) the significance (if any) of asymmetric hearing loss for the purpose of a claim
that M-NIHL has been suffered.
79. The nature and likely importance to all the claims of those common issues persuades
me, by a clear margin, that it would be convenient for all the claims to be disposed of
in the same proceedings rather than in separate sets of proceedings (whether, that is,
one set of proceedings per claim, as Master Davison required, or sets of proceedings in
which the claimants were grouped in some way but not so as all to be privy to one
omnibus claim form). That is so even if it is also true, as I apprehend it may be, that a
final determination of any given claim, if tried on its own, would involve other issues
as well.
80. In Durrheim at al v Ministry of Defence [2014] EWHC 1960 (QB), Patterson J, DBE,
was concerned with M-NIHL claims then in progress in County Courts around the
country, or in prospect. Some 45 County Court claims had been issued and 29 further
claims were at the pre-action stage (ibid at [6]). I infer, although this is not said in terms,
that each claimant had issued their own claim form. Senior Master Whitaker had refused
an application by the MoD for an order requiring all those claims to be transferred to
the High Court for centralised case management and providing for a common case
management process and timetable. The judge was not persuaded that that refusal was
wrong; indeed she regarded it as having been the correct decision. The MoD’s appeal
against the refusal of its application was therefore dismissed.
81. I do not think that decision affects the present case. It did not concern CPR 7.3 and the
onus was on the MoD to persuade the court that it should not allow the various
claimants, as they had chosen, to pursue their individual claims separately in the County
Court. The degree to which, as the judge saw it, the MoD’s liability, if any, to each
claimant would ultimately turn on facts individual to that claimant was emphasised.
That emphasis notwithstanding, I do not think it can be said that if the claimants had
been acting collectively, and preferred to pursue a single claim as co-claimants, the
judge would have said they could not properly do so by operation of CPR 7.3. As I
noted at the outset, common disposal may be convenient even if a single action is not
the only reasonable way in which to determine multiple claimants’ similar claims.
82. Mr Steinberg KC submitted that the view that Master Davison was wrong to require
each claimant to issue their own claim form resonates with an observation of Picken J
in Rawet v Daimler AG, supra, at [48]. In that case, your Lordship decided, with Picken
J, that CPR 17.1(1) allowed a claim form to be amended prior to service to add, remove
or substitute a party, including by adding an additional claimant, without obtaining the
consent of the other parties or the permission of the court. The contrary view of Mann
J in Various Claimants v G4S plc [2021] 4 WLR 46 was not followed, and at [48]
Picken J described that contrary view as “too formalistic” and “inconsistent with the
overriding objective”, noting that “To require claimants in group litigation to have to
Judgment Approved by the court for handing down. Abbott et al v MoD
issue separate proceedings every time that additional claimants are sought to be added
entails a disproportionate approach to costs and, worse still, potentially represents a
denial of access to justice.” Mr Steinberg argued that the same could be said here of
Master Davison’s requirement in this group litigation that every claimant issue their
own claim form in order to have their claim prosecuted as part of the group. I agree,
and am glad therefore to have found, although it means respectfully differing from
Master Davison, that CPR 7.3 did not require or justify his decision in this case.
Conclusion
83. For those reasons, and if my Lord agrees, I would allow this appeal and invite counsel
to assist as to the precise form of order to be made.