David Abbott and Others v Ministry of Defence

Hearing date: 17 May 2023

Approved Judgment

This judgment was handed down remotely at 14.00 hrs on 16.6.23 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

Introduction

This is an appeal against an Order of Master Davison dated 25 July 2022, brought with permission granted on the papers by an Order dated 13 March 2023. That Order directed that the appeal should be heard, if possible, by a Divisional Court in view of the potential importance and general applicability of issues raised as to the meaning and effect of CPR 7.3 and CPR 19.1. In the event, the appeal turns principally on CPR 7.3 and there is very little in dispute as regards CPR 19.1.

By a High Court Claim Form dated 28 June 2021 issued by Hugh James Solicitors, proceedings were commenced against the defendant (‘the MoD’) on behalf of 3,559 individuals, namely David Abbott (‘Mr Abbott’), whose name and address were given on the first page of the Claim Form, and 3,558 others, whose names and addresses were set out in a schedule attached to and forming part of the Claim Form. On 20 October 2021, pursuant to CPR 17.1(1), the personal details given in the schedule were corrected for some claimants, and some claimants were removed entirely by the striking through of their rows in the schedule.

As thus amended, the Claim Form instituted High Court proceedings for the pursuit by Mr Abbott and the 3,449 others identified in the amended schedule of causes of action for damages against the defendant, to be set out later in particulars of claim. The Claim Form gave these “ Brief details of claim”:

“ The claimants were and/or are employees and/or members of Her Majesty's Army, The Royal Navy, The Royal Air Force and/or members of the armed forces. The claimants bring a claim for damages arising out of their exposure to excessive noise during the course of their service and/or employment with the defendant. The claimants have suffered injury as a result of this exposure, caused by the negligence and/or breach of statutory duty of the defendant, their servants and/or agents.”

Although that description goes wider, we were told that all causes of action to be pursued will be for noise-induced hearing loss (‘NIHL’) alleged to have resulted from exposure to excessive noise levels during military service. Thus each claimant's cause or causes of action (as will be alleged) will be for compensatory damages in respect of such military NIHL (‘M-NIHL’), for which it will be said the MoD is liable. It is part of the claimants' case, which is contentious between them and the MoD, that there are distinct characteristics to M-NIHL, as against other kinds of NIHL. That feature of the litigation is relied on when it comes to the application of CPR 7.3, with which this appeal is concerned. I therefore make clear that I adopt the label M-NIHL for convenience only.

The Claim Form was issued when it was to ensure that the claimants would not be affected by the Overseas Operations (Services Personnel and Veterans) Act 2021, which applies only to claims issued after 30 June 2021. Schedule 2 to the 2021 Act amends the Limitation Act 1980 and the Foreign Limitation Periods Act 1984 as regards actions in respect of personal injury or death relating to overseas operations of the armed forces. The detail of those amendments does not matter for present purposes.

Hugh James are also the claimants' solicitors responsible for a Claim Form issued in 2017 (Claim No. QB-2017-006007, Turner et al v MoD) by which around 200 other claimants sought to pursue similar claims. The resulting separate proceedings are now being managed together by Garnham J (‘the M-NIHL Litigation’, as I shall call it), alongside procedurally similar proceedings brought by action groups the members of which say that the MoD is liable to them for non-freezing cold injury (‘NFCI’) said to have been suffered through exposure to excessive cold during military service (‘the M-NFCI Litigation’) or for post-traumatic stress disorder (‘PTSD’) allegedly arising from military service (‘the M-PTSD Litigation’). Master Davison is the appointed Master for the M-NIHL Litigation and the M-NFCI Litigation; Master Cook is the appointed Master for the M-PTSD Litigation.

In Claim No. QB-2019-000555, Bargh et al v MoD, a number of claimants had issued a single claim form for the pursuit of their respective causes of action against the MoD (as they would allege) for NFCI damages. (In his judgment in this case, Master Davison said there were 5 claimants in Bargh et al, but that may have been a slip, as we were told by counsel it was in fact 45.) In December 2019, Senior Master Fontaine ruled that a single claim form should not have been used, on the basis that those claimants' respective causes of action had very little in common except that they were for a similar type of injury and were brought against the same defendant. In Turner et al v MoD, there had been a case management order staying the litigation, in favour of negotiated dispute resolution, with liberty to lift the stay, in respect of any given claimant, if NDR was not successful. In the light of Senior Master Fontaine's ruling in Bargh et al, Master Davison raised the issue whether a single claim form should have been used in Turner et al, leading to a further case management order requiring that any Turner et al claimant who sought to lift the stay would have to issue a fresh, separate claim form, but on the basis that its deemed date of issue would be that of the original bulk claim form.

Subsequently, HHJ Cotter QC (as he was then) had given directions in relation to a single claim form issued by more than 100 claimants, for the pursuit by them of M-NFCI claims. Those directions provided for a case management solution similar to that proposed by the claimants in this claim, as described below. The directions included a mechanism for additional M-NFCI claimants to be added to that claim form.

These proceedings, Abbott et al v MoD, came before Master Davison for case management on 7 July 2022. For that hearing (and subsequent to it) it was (and has remained) common ground between the claimants, acting by their solicitors, and the MoD, acting by theirs, that the just and proper way to deal with the litigation would be to:

(i) manage the cases of all the claimants in Turner et al v MoD and Abbott et al v MoD together;

(ii) identify and try first a number of lead cases to be selected from that very large cohort, with tailored directions for disclosure providing for full standard disclosure in the selected lead cases and some measure of generic disclosure in relation to common issues;

(iii) direct Hugh James to create and maintain a claims register, updated every three months, with basic particulars of the individual claims encompassed by the litigation and their current status from time to time (e.g. whether active, discontinued, settled or otherwise disposed of).

That proposed case management method has been adopted through successive Orders of Master Davison and Garnham J. The resulting directions have some similarities with those that might be found in a Group Litigation Order (‘GLO’) under Section III of CPR Part 19 and CPR PD 19B. That is not a surprise; and a GLO is not the only means by which a large number of claims giving rise to common issues of fact or law may be managed.

Master Davison took the view that the use of an ‘omnibus’ claim form by which to commence proceedings on behalf of the 3,500-odd Abbott et al claimants was not permitted under the CPR. The concern that an omnibus claim form should not have been used was not raised by the MoD, but by the Master of his own motion. However, the MoD argues that Master Davison's view is correct, and the appeal concerns its correctness or otherwise, not the fact that the MoD did not originally take the point itself.

The analysis put forward by Mr Steinberg KC on behalf of the claimants, and maintained before us as the basis for the appeal, was as follows:

“ 3. CPR r19.1 provides:

Any number of claimants or defendants may be joined as parties to a claim.

4. The phrase “any number” is important to stress. The rules expressly contemplate that there should be no absolute limit on the number of claimants who may be parties to a single claim. Sheer weight of numbers is an impermissible factor to take into account in determining whether a claim form is in order, or not.

5. This principle is subject to CPR r7.3:

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

6. The editors of the present (2022) edition of The White Book state that the sole test for joinder in one set of proceedings is one of convenience, e.g. ¶7.3.5:

The test for joinder in r.7.3 is merely whether the several claims “can be conveniently disposed of in the same proceedings”. In terms neither the rule nor its related practice direction provides any further test.

7. Therefore, the governing principle is not whether there is a large number of claims. Rather, it is the convenience of disposing of the issues in those claims in a single set...