Abbott & Ors v. Ministry of Defence  EWHC 1807 (QB): bulk claim form impermissible
David Platt QC and Peter Houghton have appeared for the Ministry of Defence (‘MOD’) in an important case concerning the extent to which multiple individual claimants can be included on a single issued claim form.
The backdrop to this decision are two large cohorts of claims brought by Hugh James solicitors on behalf of current or former servicemen and women alleging that they have sustained noise-induced hearing loss (‘NIHL’) from military noise exposure.
In 2017, a single claim form was issued against the MOD in the name of Adrian Turner & 209 Others. A single court fee of £10,000 was paid. The claim form had attached to it a schedule of the names and addresses of the 210 individual claimants. In 2018, the claims were stayed to permit an exchange-of-information process and negotiations between the parties. This was a form of common case management falling short of a formal Group Litigation Order (‘GLO’). An application to lift the stay and seek directions to trial could be made in individual cases that proved incapable of resolution.
Separately, in 2019 Senior Master Fontaine considered a claim form issued against the MOD in the name of Taylor Bargh & 4 Others. She held that this approach to issue was impermissible. The claims had very little in common other than the facts that they were all for the same type of injury (non-freezing cold injury or ‘NFCI’) and were all against the same defendant.
In 2020, Master Davison raised the point in relation to the Turner claimants. He ruled that the inclusion of the 210 individual claimants’ claims on a single ‘bulk’ or ‘omnibus’ claim form was not permissible. The case management order of 2018 was varied so that in every case in which the stay was lifted the claimant would have to issue a claim form, pay the relevant fee and served Particulars of Claim and expert medical evidence in the normal way. To avoid a limitation windfall for the MOD, the deemed date of issue of such unitary claim forms would be the date on which the bulk claim form was issued.
Subsequently, another omnibus claim form was issued by Hugh James against the MOD on behalf of further NIHL claimants, in the name of David Abbott & 3,449 Others. Again, a single court fee of £10,000 was paid. This time the claim form had appended to it a schedule of names and addresses of 3,449 individual claimants running to 324 pages. On 7 July 2022, Master Davison was called upon to consider once more whether this constituted a permissible approach.
The Master had no hesitation in concluding that the issue of a single bulk claim form was not permitted in the prevailing circumstances. The central planks in his reasoning were as follows.
CPR 19.1 – “any number of claimants or defendants may be joined as parties to a claim” – allows multiple claimants. Although the rule uses the singular ‘claim’, CPR 19.1 is subject to CPR 7.3 which provides that, “a claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings” (emphasis added).
The 3,500 individual claims plainly could not be conveniently disposed of in the same proceedings. The contrary was, “not seriously arguable”. The claims had a common defendant and a number common themes, but that was all. They were, “far, far too disparate in terms of the periods and circumstances in which each claimant sustained his or her NIHL”. In short, they presented, “a huge variety of unitary claims”. The whole approach to the Turner cohort – lifting the stay in individual claims so that they could be progressed as unitary matters – showed that a cohort such as this could not be conveniently disposed of in the same proceedings. There could not be a trial of 3,500 claims at one sitting. Although there was a proposal to select 16 ‘lead cases’ for trial, the outcomes of those cases would not fully resolve the entire cohort.
Further, these military NIHL claims were being managed in a way analogous to a formal GLO, and under GLO procedures there would be a mandatory requirement to issue a claim form and pay the relevant court fee for each claim on the group register: CPR PD 19B para. 6.1A and Boake Allen Ltd & ors v. HMRC  UKHL 25. Other military NIHL claims had been issued by claimants represented by different solicitors – all had issued individual claim forms and paid appropriate court fees. There was “no proper basis” to treat the Hugh James claimants differently.
Moreover, the proposal to place 3,500 separate claims on a single claim form – with a single claim number – would place “an impossible strain” on the court’s computerised case management system.
The Master declined to make an order similar to that which he made in Turner, staying the claim and directing individual claimants whose cases did not settle then to issue their own claim forms. He described that order as, “something of a concession, reflecting the fact that the appropriateness of joining them all together on one claim form had initially been overlooked”. In contrast, the Abbott cohort was not deserving of indulgence given that Hugh James knew full well that it had already twice been ruled that this sort of omnibus claim form was impermissible. Conceptually speaking, a stay anticipated that a claim would one day be revived and progressed whereas, “as presently constituted, these claims cannot be progressed because each one requires its own claim form”. The claimants were asking the court to ‘warehouse’ the Abbott claims or to treat the issue of the bulk claim form as “a species of standstill agreement”. However, that was not a proper use of the court’s procedures (though it remained open to the parties to reach a standstill agreement themselves).
Master Davison therefore directed that individual claim forms for the 3,449 Abbott claimants (excluding Mr Abbott himself) had to be issued and court fees paid within six months; non-compliance in an individual case would see that case struck out.
The following learning points emerge:
- The case provides a reminder of the limits of CPR 7.3, i.e. the ‘convenient disposition’ requirement.
- Lawyers representing a cohort of claimants, each of whom has an individual claim with its specific circumstances, should take particular care before including the entire cohort on a single claim form. They should consider the CPR 7.3 test. A common defendant and several common themes will not suffice to pass that test.
- If there is any doubt, individual claim forms will have to be issued and separate court fees paid. That will require a high level of administrative efficiency and will impose a considerable financial burden. (However, a formal GLO will not provide a means of circumventing that burden.)
- Lawyers representing a client faced with a single bulk claim form that includes multiple disparate claims by individual claimants should consider a preliminary challenge. The lenient approach taken in Turner is unlikely to be repeated in light of the decisions in Bargh and now Abbott. A strike out, or alternatively an unless order, is a realistic target.
The Claimants have indicated their intention to appeal.
David Platt QC and Peter Houghton were instructed by Eleanor Fox of Keoghs for the MOD.
The full text of the judgment is available on Bailii: https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2022/1807.html
Peter’s article on the decision will appear on Lexis Nexis shortly.