Harry Steinberg KC of 12 King’s Bench Walk, Kate Boakes of Matrix Chambers and David Green of 12 King’s Bench Walk represented more than 3,400 claimants for noise-induced hearing loss in claims against the MOD, in their successful appeal against the way that the group litigation cohort was initiated and organised. Counsel were instructed by Simon Ellis of Hugh James.
Roughly 3,500 current and former members of the armed forces (represented by Hugh James solicitors) were seeking damages for noise-induced hearing loss, suffered during their military service (“M-NIHL”). The claims were in various stages of preparation. All 3,450 claims were issued on one omnibus claim form on 28 June 2021.
The MOD agreed that the group of claims gave rise to common or generic issues, covering issues such as the MOD’s duties and regime of protective equipment, and emergent scientific research about the diagnosis and quantification of M-NIHL. Although neither side sought a Group Litigation Order (GLO), both sides agreed to a system of common case management, towards a single trial of lead claims to resolve the generic issues.
After a CMC on 7 July 2022, Master Davison ordered that the use of a single claim form in these circumstances was impermissible ( EWHC 1807 (QB)). He considered that:
- In a GLO – accepting and adopting the Defendant’s submission on this point – each claimant would be required to issue their own individual claim form, and there was no reason to treat this cohort of claimants more favourably;
- Having 3,500 separate claimants’ claims on one claim form would “put an intolerable strain on the court’s computerised case management system” (CE-File);
- The Claimant’s approach did not meet the test at CPR r7.3, that the claims could be “conveniently disposed of in the same proceedings”, because there could not be a trial of 3,500 claims at one sitting.
The Claimants’ appeal was expedited and was heard by the Divisional Court of the King’s Bench Division (Dingemans LJ and Andrew Baker J) on 17 May 2023. The Claimants contended that the order was wrong and that there was nothing objectionable about the issue of the 3,500 claims together, particularly since all of the Claimants sought collective resolution of generic issues. The Defendant strenuously opposed the appeal and argued that each claimant required its own claim form, both in this cohort and in all group litigation generally (whether with or without a GLO).
Judgment was handed down on 16 June. The Claimants’ appeal was successful. Giving the leading judgment, Andrew Baker J held that:
- Master Davison’s analogy with a GLO was inapt, and based on an incorrect assumption that GLOs required an individual claim form per claimant.
- This was not right and was a misreading of CPR PD19B and of Boake Allen v Revenue & Customs Commissioners  1 WLR 1386. It was correct – and entirely common – for large groups of claimants in group litigation to issue their claims using the same claim form.
- The functioning of the court’s IT system was also not a permissible factor; and neither was it a convincing one.
- Finally, Master Davison had given an unduly restrictive reading to r7.3 and the requirement that the claims should be capable of being “conveniently disposed of in the same proceedings”. This did not necessarily mean that they had to be capable of disposition in a single trial.
- The true test under r7.3 was whether the claims had sufficient commonality that it would be useful to use the same set of proceedings to resolve them, so that findings in respect of any one claimant would be binding against all of the others.
This decision will be welcomed by lawyers and litigants involved in group claims across all areas of civil litigation. The suggestion at first instance that group litigation required the issue of a separate claim form (and the payment of an individual court fee) per claimant would undoubtedly have had a chilling effect on the ability of claimants to make group claims, and would have seriously impeded access to justice. It would also have called into question the validity of a number of large pieces of group litigation already progressing through the courts, where large omnibus claim forms had been used.
The Hugh James Military Deafness litigation continues to progress. By the time of the appeal, almost all of the 3,500 claims had been issued separately, pursuant to Master Davison’s order. The claims are now being case managed by Garnham J and Master Davison towards a trial of the agreed generic issues in lead cases in autumn 2025.