COURT REFUSES TO GRANT AN ORDER FOR A GROUP LITIGATION ORDER: INCORRECT PROCEDURE; COSTS AND “WHACK -A-MOLE” CONSIDERED

Several kind people have sent me a copy of the decision in Abbott & Ors v Ministry of Defence [2023] EWHC 2839 (KB). This is an unusual case because, despite the claimant and defendant being in agreement, the court did not make a Group Litigation Order.

“CPR 19.22(1) stipulates that Practice Direction 19B provides the procedure for applying for a GLO. It appears to us that there has been a wholesale failure by HJS, as the solicitor acting for the proposed GLO applicant, to comply with that Practice Direction in making this application.”

THE CASE

The claimants are bringing claims for damages arising out of hearing losses suffered whilst serving in the armed forces. Following an initial decision on whether they can bring one action using one claim form (decided in the claimants’ favour) the court was considering further directions. The claimants applied for a Group Litigation Order (“GLO”).

OPPOSITION TO THE GLO

The defendant supported the application for a GLO. It was, however, opposed by a significant number of claimants represented by other solicitors.

THE COURT’S DECISION: NO GLO TODAY

1. 1. There is no dispute that the claims of the HJS claimants and those of the opposing parties cannot be consolidated and cannot proceed by way of representative parties, that the number of claims here is sufficient for a GLO, and that the claims are of a type – personal injury arising from exposure to noxious phenomenon – which is recognised as appropriate for a GLO

1. 1. There are three major issues to address before the grant of a GLO in this case could sensibly be contemplated. Those are: (i) the effect of making an order on the access to justice for the opposing parties; (ii) the extent to which findings in test cases under the GLO would be binding on other actions; and (iii) the related issue of the utility of a GLO in a case such as this. We deal with each point in turn.

Access to Justice

1. 1. CPR 19.22(1) stipulates that Practice Direction 19B provides the procedure for applying for a GLO. It appears to us that there has been a wholesale failure by HJS, as the solicitor acting for the proposed GLO applicant, to comply with that Practice Direction in making this application.

1. 1. It is right to note that, in preparation for the case management conference in Abbott v MoD in October 2022, Master Davison gave other firms of solicitors the opportunity to make representations. However, HJS have not consulted the Law Society’s Multi Party Action Information Service in order to obtain information about other cases giving rise to the relevant issues. HJS have not formed the appropriate Solicitors’ Steering Group. They have not devised a proper method to select one firm of solicitors, out of those acting for claimants in such cases, to take the lead in applying for the GLO and in litigating the GLO issues. Instead, HJS have simply assumed that they will be that firm. The PD provides that the lead solicitor’s role and their relationship with the other members of the Solicitors’ Group should be carefully defined in writing. That has not happened.

1. 1. The result is that there is no common approach to this application from solicitors acting for claimants in the cases likely to be caught by the proposed GLO, and no established mechanism for resolving differences between those firms or managing the process. On the contrary, the approach of HJS has, it appears, alienated many of the other firms acting for M-NIHL claimants. In substance, the Court is being asked to impose a GLO in the face of strongly expressed objections from 36 firms of “other solicitors” representing some 5000 claimants.

1. 1. In the VW NOx litigation [2018] EWHC 2308 (QB) Senior Master Fontaine said at paragraphs 16 – 17

…The reasoning underpinning CPR 19PDB is to ensure that by the time claimant solicitors seek to engage with defendant solicitors in respect of a proposed GLO application they have co-ordinated the claims and identified GLO issues, which means co-ordinating the pleadings and causes of action and putting in place a structure which will enable the court to order a GLO which will justly and efficiently dispose of the claims caught by the GLO issues. The court will also be concerned at the GLO hearing to ensure that funding is in place, costs sharing is in place, and that all the claimant groups are able to speak with one voice. There is no requirement of perfection, and there will often be certain points that need to be agreed, but there will be a certain threshold at which remaining issues that are not agreed will be capable of being determined by the court. That is why paragraphs 2.1 and 2.2 of the Practice Direction refer to the formation of a solicitors’ group, the identification of lead solicitors and in fact say that where one firm does take the lead, their relationship with the other firms in the group “should be carefully defined in writing”. This is designed to ensure that the second pre- application stage can take place, namely discussion with the defendant. The defendant needs to know that it is dealing with a notional lead solicitor who can speak with the authority of the group that has been co-ordinated. 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.

1. 1. In that case the court was concerned with a case where the defendants opposed the grant of a GLO, but the points made by the Senior Master are equally apposite here where a GLO is opposed by many of those acting for claimants likely to be effected.

1. 1. 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 HJS 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. We note, in that context, the evidence of Mr Evatt of Alma Law to the effect that some of the claims in which solicitors other than HJS are instructed are at an advanced stage and are expected to settle. He says “Liability is admitted in many of them and many Claimants have already received offers of settlement.” We accept the submissions of Mr Barnes that a large number of other claimants would be disadvantaged, at least in the short and medium term, were this the course the court decided to adopt. Whatever stage their claims had reached, their actions are likely to be stayed to permit the GLO to operate.

1. 1. It is no answer to these concerns that the stay would not affect cases not yet issued or cases that did not involve GLO issues. The GLO issues as drafted, or re-drafted, will be aimed at catching all or most M-NIHL claims. And it seems to us fair to assume that the MOD will not negotiate non-issued claims before the lead claims are tried. Such a moratorium might be more attractive in circumstances where access to justice considerations were offset by ultimate costs savings, an issue to which we return below.

1. 1. Of course, it may be possible for HJS to remedy the procedural position by complying with the Practice Direction in future months. But certainly for the present, we regard HJS’s failures in this regard as a factor pointing firmly away from the grant of a GLO. To grant such an order in this case would have the effect of severely limiting the access to justice of those represented by firms other than HJS.

The Binding Nature of Judgments in the GLO

1. 1. In paragraph 12 of his statement of 9 October 2023, Mr Bird, on behalf of the MOD, sets out the defendants’ “position” as to the binding effect of decisions in related cases. That paragraph identifies what Mr Bird has been “advised” on the topic but we take it to represent the MoD’s stance on the issue. Indeed, Mr Platt indicated that he had assisted in the drafting of this part of the statement. Mr Bird says this: “I am advised that the position is this:

i) The doctrine of “res judicata” will operate to bind all those claims where a finding of fact or law falls within this legal principle in circumstances where the issue is later considered by another Court;

ii) If there is a GLO and additional claimants participate, then findings in the GLO will bind those additional cases which otherwise would not be so regarded. However it would be open to a party in a non-participating claim in a subsequent High Court dispute to argue (for instance) that the original finding of law by a Judge of equal status (e.g. in the lead case process) was wrong and should not be followed—or that the expert medical evidence should be interpreted differently on the facts of the later case;

iii) Within the enclosure of the GLO, findings of act or law (e.g. the meaning of a particular provision in the Noise Regulation) are binding on participating litigants. The principle is enshrined in CPR 19.23 (1)(b).

iv) However, the extent to which any such findings are truly “binding” (rather than highly persuasive or influential) should not be overstated. Findings of fact are usually case specific. A finding that Serviceman A who served in the Parachute Regiment between 1985 and 1995 in N. Ireland has Noise Induced Hearing Loss as a result of exposure to military noise does not “bind” Serviceman B whose was deployed with the Green Jackets in Germany and Cyprus between 1990 and 2005. Both these claims will have different factual matrix and different arguments over breach of duty, contributory negligence, limitation, medical causation and quantum. All these elements are fact and case specific.

v) However the practical effect of findings made in the lead cases (e.g. on medical causation and breach of duty or contributory negligence) are likely to be highly influential in the resolution of a large number of other claims.

vi) The issue of whether Prof Lutman or Prof Moore is correct in his interpretation of some key disputed medical issues (such as the dynamics of M-NIHL, hearing loss latency and the primacy of the audiogram) is a key part of the litigation. A resolution in the lead cases will bind other cases within the GLO if a binary or transmissible finding is made. It will not be determined by itself whether Serviceman C has in fact developed Noise Induced Hearing Loss or whether he left the armed forces due to injury or of his own volition.”

1. 1. In general terms, we agree with that analysis. The outcome of the lead cases would, potentially, be binding on all those named as Claimants in the Hugh James Military Deafness Litigation. Furthermore, the doctrine of precedent will apply, most notably if an issue is considered in the High Court. It is not necessary to have a GLO to achieve those outcomes. A GLO would go further and would also bind the “other claimants”. But, as was pointed out by both the MOD and the opposing parties in argument before us, because the individual claims are so fact sensitive, the lead claims will not, in fact, be dispositive of either the bulk of the HJS claims or the other claims.

1. 1. A similar position obtained in Durrheim v Ministry of Defence [2014] EWHC 1960 (QB). The MoD had sought the transfer of various personal injury claims, made by serving and former service personnel alleging noise-induced hearing loss, from the county courts to the High Court. They argued that the handling of numerous cases of the same type in different county courts would be more expensive and less efficient than dealing with them in one place. Its application was a preliminary step to establishing a scheme of common case management, such as the making of a group litigation order or directions for trial of lead or test cases. The Senior Master found that expense and efficiency did not amount to a sufficient reason, given the factual differences between the cases. He observed that the transfer of the cases would be likely to cause unnecessary delay, and he noted that it was not easy to find funding for group actions.

1. 1. The MoD appealed, arguing, amongst other points, that the Senior Master had failed to consider proportionality, specifically in relation to the duplication of disclosure and expert evidence, contrary to the overriding objective. Pattison J dismissed the appeal. At paragraph 94 of she said:

I have looked at the extremely useful spreadsheet that was produced by the appellant which illustrates the variety of weapons involved, each as a noise source. By way of example some 20 light weapons are listed. In addition, there was considerable variety of PPE. The noise exposure occurred in a wide variety of situations including active operations and training. In those circumstances an assessment of noise exposure in one case will be of limited, if any utility, in relation to another.

1. 1. We conclude that, in circumstances like the present, the fact that judgment in a GLO case is binding on all claims caught by that GLO does not weigh heavily in the scales in favour of granting the order.

The Utility of a GLO now

1. 1. Against that background, we are, at least for the present, unpersuaded that a GLO would be beneficial to the administration of justice or an effective means of saving costs, certainly in circumstances where such an order would have the adverse effect on access to justice discussed above. We say that for the following reasons.

1. 1. There is no dispute that, in principle, a GLO may be suitable for “industrial disease or accident” claims. The paradigm example is perhaps a claim by numerous factory employees about injuries sustained in consequence of a particular industrial process, where the allegations of negligence are common to all. In Hutson, the court held it was appropriate to make a GLO in respect of claims brought by or on behalf of former employees of Tata Steel who claimed to have suffered ill health as a result of harmful emissions at coke plants throughout England and Wales. GLOs are also appropriate in cases where there are huge numbers of claims each, or most of which, raise similar issues of facts and law (such as was the case in the VW NOx Emissions Group Litigation [2020] EWHC 783, where a software function in a car engine manufactured by Volkswagen, which enabled the engine to recognise when it was being tested for compliance with vehicle emissions standards and to produce fewer emissions of nitrogen oxide as a result was a prohibited “defeat device” for the purposes of Article 3 (10) of EU Parliament and Council Regulation 715/2007.)

1. 1. This case seems to us a much less obvious candidate for a GLO. Actions for damages for noise induced hearing loss (NIHL) have a long history, going back many decades. Such actions have been brought by servicemen against the MOD since the Crown Proceedings Act of 1987 repealed the immunity conferred on the Armed Forces by section 10 of the Crown Proceedings Act 1947. The general principles applicable to such proceedings are well established. The circumstances in which the thousands of claimants in the HJS cohort, and those who form the opposing parties, sustained their injury vary considerably and the allegations of breach of duty appear more diverse.

1. 1. It is right to observe, as did Mr Platt, that the wording of CPR r 19.21 deals with claims which “give rise to common or related issues of fact or law (the “GLO issues“)”. The rule does not stipulate that the GLO issues must be dispositive of the GLO claims. That distinction is reflected in the Divisional Court’s decision in this case; they said that “real progress” towards the resolution of the other claims (paragraph 73) and/or “real significance” for all the rest of the claims (paragraph 77) was enough to justify an omnibus claim form. Nevertheless, this remains a highly relevant factor in the decision whether or not to make a GLO. If the lead claims will not dispose of the other claims, or a good proportion of them, that diminishes the utility of a GLO.

1. 1. We say “appear” because we have been taken to the pleadings in only a small sample of the relevant claims. In giving reasons for our order of 21 July 2023 we noted that “…the extent to which (judgments in the lead claims) will bind other claimants will still depend on those other claims presenting issues that are the same as the lead claims or so similar that (such judgments) must be treated as binding. At the present time, in the absence of any taxonomy or classification of the other claims, it is not possible to form a view“. That still remains the position. Despite those observations, HJS have made no attempt to classify their claims or otherwise to make good the submission that judgment on the issues raised in the lead cases would, on the facts, bind other cases in the group. What material we have from HJS on this topic is contained in the witness statement of Mr Ellis dated 7 August 2023 in support of the GLO application, which in turn refers to his second statement dated 15 March 2018.  The relevant paragraphs are 5 – 13 and 10 – 25, respectively.  These paragraphs place the claimant cohort into 8 separate categories of Armed Forces personnel and the sources of noise exposure described are very diverse in terms of type, settings and scale.  If this evidence can be called a classification at all, it is one that offers little encouragement for the proposition that the lead cases will be dispositive.

1. 1. In circumstances where the findings in the lead cases will be dispositive of few, if any, of the other claims, the duplication of effort will not be avoided. Those other claims will still need to be thoroughly investigated and presented in detail. Furthermore, a GLO will impose its own burden of administration, effort and costs. As it is put by the authors of Class Actions In England and Wales, 2nd Ed, at 3-010:

“If the common issues are limited, so too may be the benefits of a GLO; where each of the claims to be grouped have at their core issues which must be determined on a case-by-case basis, a GLO may not be appropriate”.

1. 1. Finally, we consider briefly the other arguments said to favour the immediate grant of a GLO.

1. 1. It is suggested that without such an order there is a risk of inconsistent judgments in M-NIHL cases around the country. We accept that such a risk exists but observe that to date no such inconsistency has emerged. Plainly, there would be benefit in an early High Court hearing of some of the issues in the HJS litigation (a matter we return to below) but we have seen no evidence to suggest that this threat is significant.

1. 1. It is suggested that, absent a GLO, the MoD will spend vast amounts of time and money travelling around the country responding to numerous, similar, individual actions, (playing “whack-a-mole” as Mr Platt put it). Again we have seen no evidence that this is likely. There is nothing to suggest that there are huge numbers of county court cases likely to go to trial in the near future, and we anticipate that proper case management in the individual cases will greatly reduce that risk.

1. 1. It is said that a GLO will avoid the duplication of evidence in successive cases. However, first, that assertion presupposes the same issue will be litigated repeatedly and that seems to us very unlikely. And second, there is no evidence that that has occurred to date.

1. 1. It is said that if there is no GLO, the “flood gates” will open. But there is no empirical evidence of a likely flood of claims being litigated to trial. In fact, on figures produced by Mr Barnes (and not disputed by Mr Steinberg or Mr Platt), in the last five years 4,153 M-NIHL claims have been settled with only 2 or 3 trials resulting.

Conclusions

1. 1. We conclude that the Claimants, supported though they were by the Defendants, have failed to make out their case that the threshold requirements for a GLO are met. Accordingly the application for such an order is dismissed.

1. 1. We do not, however, exclude the possibility that a GLO might be justified at some stage in the future if, for example, there is the flood of cases in the County Court, or inconsistent decisions at Circuit Judge level emerge. If there was a renewed application, it would be essential that the solicitors making the application had followed the guidance in the Practice Direction before doing so.

1. By way of a postscript, we would add that, were it thought there might be benefit in obtaining an early judgment of the High Court on one or more of the issues currently assigned to the test cases, (perhaps the issues arising from the disagreement between Professor Moore and Professor Lutman about diagnostic criteria, latency and synaptopathy), we would be willing to hear an application that that be treated and heard as a preliminary issue in the present proceedings.