OMNIBUS CLAIM FORMS: COURT MANAGEMENT OF CASES AND “DISAGGREGATION”

A problem with “omnibus” claim forms and subsequent case management was considered in detail in the judgment of Mr Justice Garnham and Master Davison in Adams & Ors v Ministry of Defence [2024] EWHC 1966 (KB).  The judgment considered the practical difficulties that arise when “omnibus” claim forms are issued and then the individual claims have to be “disaggregated”. This process leads to some complex problems in terms of court and case management.

“Where it appears at the outset that claims which are sought to be joined to an omnibus Claim Form will not, via trial of lead cases, be dispositive or at least largely dispositive of the cohort, that is a relevant factor in deciding whether to issue an omnibus Claim Form. To put that differently, if it can be anticipated that a stage will be reached where the cases in the cohort will all require individual determination, then a court may be hesitant to approve the use of an omnibus Claim Form because of the practical difficulties that may be encountered and as are exemplified by this case. To put that differently again, the convenience of such a Claim Form may be short-lived.”

THE CASE

An “omnibus” claim form had been issued in relation to a number of claims against the Ministry of Defence.   There were initially 604 claims, 566 of which were ongoing.  Some preliminary issues had been resolved, but individual cases had to be determined.

“Messrs Hugh James Solicitors are acting for three large (and in some cases overlapping) cohorts of ex-military personnel who have sustained (1) noise induced hearing loss, (2) non-freezing cold injuries (“NFCI”) and (3) post-traumatic stress disorder. The defendant is the Ministry of Defence. In the first two cohorts, the claims have been pursued by means of what have come to be called “omnibus” Claim Forms, whereby multiple claimants have been joined to one Claim Form. In this judgment, we are dealing with the NFCI claims. The question has arisen whether these claims should continue via an omnibus Claim Form, or whether some other, and if so what, procedural vehicle would be appropriate”

WHAT SHOULD BE DONE?

A hearing was held to determine how the cases should be managed. There were now hundreds of individual claims all being dealt with under one claim number.

1. 1. The case came before the court for case management (Master Davison, sitting alone) on 29 April 2024. As at that date, QB-2019-001608 comprised 604 claims of which 566 were ongoing (i.e. had not been settled or discontinued). Keoghs LLP were acting for the MOD in 25 ongoing claims and Clyde & Co in the remainder. Pursuant to the order of Sweeting J dated 10 May 2022, Hugh James were at liberty to add further claims by amendment and there was no backstop or cut-off date for further claims. Two features were apparent at the CMC:

i) The resolution of generic issues by agreement had fulfilled the primary purpose or motive for the joinder of multiple claimants. From that point on, the claims were being, and could only be, progressed and tried individually.

ii) The joinder of so many individual claims on to one Claim Form had given rise to administrative difficulties, which are discussed below.

1. In the light of the above, Master Davison directed that a hearing was to be listed to consider “whether these claims can / can still be conveniently disposed of in the same proceedings” (the wording of CPR r.7.3). Until that issue was determined, it was also directed that no further claims should be added to the Claim Form.

THE PROBLEM

1. 1. The difficulties referred to at paragraph 4(ii) above were as follows. All legal systems maintain a case file. In England & Wales, the file is digital and exists on a case management system called CE File. CE File essentially operates as a large bundle of digitised documents which is compiled and added to in roughly chronological order. It has limited search facilities and no facility at all for creating sub-files. A combination of the following problems presented themselves. First, when the claims were ordered to be transferred / transferred back to the Royal Courts of Justice, that order was not fully actioned at the transferring courts, and so the file was incomplete. (This was no fault of the parties.) Second, CE File is not set up to cater for the same defendant (in this case the MOD) being represented by two different firms of solicitors. To put that another way, CE File assumes that a party to the claim has one, and only one, firm of solicitors representing. Third, because CE File does not allow the creation of sub-files, having multiple, active cases – all at different stages of progress – on a single file presents logistical difficulties for the staff whose job it is to action case management orders and directions. It also makes it difficult and time-consuming for judges looking at the file to find particular documents. These problems had led to many CE File submissions being rejected or queried, a large backlog and a series of internal discussions as to a better way forward. These discussions eventually led to a further order dated 24 May 2024 which (1) split the file into those cases where Keoghs acted for the MOD and those where Clyde & Co acted and (2) directed that, going forward, cases where the stay was lifted and which therefore became active claims (accruing at the rate of at least 4 every month) should be progressed within a new, separate court file which would be given its own case number.

1. The result is that the omnibus Claim Form is now, in effect, a repository for claims which, when they become active claims, are transferred to a new file. The omnibus claim is, accordingly, being progressively “disaggregated” (an expression not found in the rules but which featured prominently at the hearing before us).

THE DECISION

In this case, given the complex procedural history, the judges decided to leave matters as they are.

1. 1. Not without hesitation, we have decided that for this particular cohort of claims and in the particular circumstances that have arisen, we should not disturb the status quo.

1. 1. Our hesitation arises in the following way. The cases have already been disaggregated – for reasons which the parties acknowledge are well-founded. We accept that difficulties with CE File cannot be determinative of the propriety of using or continuing to use a single, omnibus Claim Form. So, if rules of court mandated the use of a single Claim Form then, however administratively difficult that turned out to be, the court would have to find some way of accommodating or managing that situation. But, as we have already observed, the relevant rule looks to “convenience” and it seems to us that that can and should include the convenience of the court and the court’s systems – not least because that is a factor which impacts directly on the parties themselves and, indirectly, upon other court users and the wider public. The resources of the court are shared and finite and the court is entitled, if not bound, to consider convenience in a context that goes beyond the narrow interests of the particular parties before it.

1. 1. The analogy the parties drew with the Abbott cohort of military noise deafness claims is not exact. Although some generic issues in the military noise deafness cohort have been compromised (in much the same way as in the NFCI cohort), others are going forward to a trial of lead cases. The stage has not been reached in Abbott where each individual claim falls to be progressed to its own trial or assessment of damages. Had that stage been reached, then Abbott would be presenting the very same problem as we are currently confronting, which is whether, once multiple claims have reached the stage of individual assessment, it can be said to be convenient that they are disposed of within the same set of proceedings. Prima facie, it seems to us that the answer to that is, no. Adopting the language of Abbott (and recognising that these matters are relevant not mandatory) it can no longer be said that the omnibus Claim Form is promoting “real progress” or “real significance” or a “binding effect” across the cohort. Further, pursuant to the order of Master Davison dated 24 May 2024, albeit without the issue of individual Claim Forms or payment of the issue fee, the active claims in this cohort are, to all practical intents and purposes, already being treated as separate, individual claims, each with its own case number. That there are factual similarities, a body of common expert evidence and template directions does not, in our view, take matters very much further because such conveniences as arise from these factors would arise equally if the claims were disaggregated but still subject to overall case management by one judge. The same goes for the persuasive effect of decisions in individual cases. That does not require or depend on those cases being part of an omnibus Claim Form.

1. 1. There are, however, factors pulling the other way. Whilst we might not ourselves have approved the use of a single, omnibus Claim Form from the outset (see further below), such orders were made by His Honour Judge Cotter QC and Sweeting J and the parties have for some years proceeded on that basis. To the extent that the omnibus Claim Form has become inconvenient, the parties were correct to say that the court has now addressed that by measures short of requiring the issue of new Claim Forms and that there would be no obvious gain to be had if that was required. The 24 May 2024 Order was a pragmatic response to the situation that had arisen and was well within the scope of the court’s wide case management powers. By contrast, to require new, individual Claim Forms at this stage would involve the parties in work which was essentially duplicative and which would impose its own administrative burden on the court. Further, such a requirement would frustrate the legitimate expectations of the claimants concerned, (some of whom are also part of the Abbott litigation where, through no fault of theirs, the claims were disaggregated and then, pursuant to the order of the Divisional Court, re-aggregated). We are reluctant to inflict further upheaval.

1. Given that the Claim Form in QB-2019-001608 is already overloaded, we propose to order that no more claims be added to that file nor to the other, associated files, but that new claimants, instead of being added to that Claim Form, must issue a fresh Claim Form with a maximum number of claimants which, subject to anything the parties may wish to submit, we will provisionally fix at 60. Only the name of the first claimant will be entered on to the front page of CE File. The other claimants are to be listed in a numbered schedule, which may be added to until the maximum is reached, whereupon a further Claim Form is to be issued. When claims become active, they will, as presently provided for in the 24 May 2024 Order, be given their own case number. But we will make a qualification to that order. Provided that active claims are marching in step towards a common trial date, there is no reason why they cannot be dealt with in tranches (as Mr Steinberg KC indeed suggested). The size of each tranche will be dictated by the number of claims that can conveniently be tried at one sitting. Our provisional thinking is that a realistic maximum is three and that, given the near certainty of settlements along the way, a maximum tranche size for active claims should be six.

AN IMPORTANT POSTSCRIPT

1. 1. Omnibus Claim Forms are topical at the moment. When such orders were made in this cohort of claims, the judges concerned did not have the benefit of argument nor the benefit of the cases cited above, which have given valuable guidance on the subject. As a result of the decisions in Abbott and Morris, omnibus Claim Forms and CPR r.7.3 are the subject of consideration by the Civil Procedure Rule Committee. In these circumstances, we make just one further, short observation.

1. Where it appears at the outset that claims which are sought to be joined to an omnibus Claim Form will not, via trial of lead cases, be dispositive or at least largely dispositive of the cohort, that is a relevant factor in deciding whether to issue an omnibus Claim Form. To put that differently, if it can be anticipated that a stage will be reached where the cases in the cohort will all require individual determination, then a court may be hesitant to approve the use of an omnibus Claim Form because of the practical difficulties that may be encountered and as are exemplified by this case. To put that differently again, the convenience of such a Claim Form may be short-lived.