Mr David Abbott and Others v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham,Garnham J |
| Judgment Date | 15 November 2023 |
| Neutral Citation | [2023] EWHC 2839 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB 2021-002484 |
[2023] EWHC 2839 (KB)
Mr Justice Garnham
and
Master Davison
Case No: QB 2021-002484
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Harry Steinberg KC and Aliyah Akram (instructed by Hugh James Solicitors) for the Claimants
David Platt KC and Peter Houghton (instructed by Keoghs) for the Defendants
Chris Barnes KC and Amrit Atwal (instructed by Alma Law, AWH Solicitors, BLZ Solicitors, Clear Law, Eldred Law, Gorvins, Greenbank Lawyers, Imperium Law, Irwin Mitchell, Jiva Solicitors, JMW Solicitors, Kinetic Law, M&S Law, Russell Worth Solicitors, Simpson Millar, Slater and Gordon, Veritas Solicitors LLP, and Watkins & Gunn) for the Opposing Parties
Hearing dates: 20 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 15 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is the judgment of the Court following a Case Management Hearing (CMH) conducted on 20 October 2023.
During the course of that hearing we made orders concerning the discontinuance of the unitary claims that had been commenced by the Claimants after Master Davison's order of 25 July 2023 and the application to add claimants who served in the UK special forces (and the application to add so called “MAB Claimants”). The terms of these orders are set out in an order of the Court.
We adjourned an application for costs arising out of the abandoned unitary claims to enable the parties (i) to make formal application to HMCTS for return of court fees, (ii) to issue any necessary applications to have HMCTS joined as a party, and (iii) to prepare skeleton arguments on the issue. We indicated that if the costs matter remained in dispute we would hear that application in early December 2023.
The one remaining matter raised in the CMH concerned the Claimants' application for a Group Litigation Order (“GLO”). That application is supported by the Defendants, but opposed by a significant number of claimants in other proceedings represented by firms of solicitors other than Hugh James solicitors (hereafter “HJS”).
The issue for us at this stage is whether the threshold requirements for a GLO are met. Were we to find those requirements are met we would need to consider whether such an order ought to be made, a question which would involve consideration of the alternatives.
We had the benefit of detailed written and oral arguments on the GLO application from Mr Harry Steinberg KC for the Claimants, Mr David Platt KC for the Defendants, and Mr Chris Barnes KC, who was instructed by 18 firms of solicitors whose clients oppose the making of a GLO. His submissions, he told us, were supported by another 18 firms of solicitors who also oppose the grant of a GLO. The solicitors representing these opposing parties are instructed, we were told, by more than 5,000 claimants who seek to pursue claims for damages for noise induced hearing loss (“NIHL”) caused in the course of their work for HM Armed Forces. For convenience, we will refer to these claimants as the ‘opposing parties’. We are grateful to all counsel for their helpful submissions.
Background
In 2017 HJS issued a claim form in proceedings entitled Turner et al. v MOD, by which 200 Claimants sought to pursue claims for damages for hearing loss which they claimed were the result of exposure to excessive noise during military service.
By an order dated 24 April 2020 Master Davison gave the parties in Turner a deadline of 22 August 2020 to make an application for a GLO if they thought that appropriate. The Claimants made no such application.
On 28 June 2021 HJS issued a High Court claim form against the MOD on behalf of Mr David Abbott and 3,558 others.
On 25 July 2022 Master Davison held that it was impermissible for the Claimant to begin this claim by a single claim form. The Claimant appealed that decision and, on 17 May 2023, the appeal was heard by a Divisional Court (Dingemans LJ and Andrew Baker J). The appeal was allowed ( [2023] EWHC 1475 (KB)). In the course of their judgments members of the court made observations about the future conduct of these proceedings. Andrew Baker J said:
“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;
(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…
84. I have not judged it necessary in order to resolve this appeal to consider the comparative merits or demerits of a GLO in relation to M-NIHL claims. I do though add this, in case either of the parties view it as relevant to the terms of any order to be made consequent upon allowing the appeal, namely that:
(i) if the only consideration is how most appropriately to deal with the M-NIHL claims on which Hugh James are instructed for the claimants, it may be that a GLO would add nothing;
(ii) there may, however, be wider considerations, since we were told by Mr Platt KC that the MoD has been notified to date, in total, of some 7,690 claimants or possible claimants in this jurisdiction (there is apparently also a large number of claimants in Northern Ireland), so that as things stand Hugh James represent only c.50% of the potential litigation cohort here. Mr Platt indicated on instructions that there are now around 20 other claimant firms of solicitors involved and around 100 other claim forms have been issued;
(iii) Master Davison gave other firms of solicitors instructed in M-NIHL claims against the MoD the opportunity to make representations about the case management of the Abbott et al v MoD claims, and some did so, for the case management conference he heard in October 2022 at which he adopted the basic approach proposed for the Abbott et al cohort of identifying lead cases for a first trial;
(iv) we were told that the gist of the representations made was to the effect that those other firms did not wish the claims they are carrying to be embroiled in the Abbott et al litigation being pursued by Hugh James, but it is not obvious that that should be decisive against the making of a GLO, if any interested party wished now to contend that there should be one and issued an appropriate application; and
(v) if any such application is to be made, then other things being equal it ought to be made in the near future, while the Abbott et al litigation is still in its early stages...
To continue reading
Request your trial