Judgment has today been handed down in the appeal against the decision of the court of 7 July 2022, regarding the use of a single group claim form to issue approximately 3,500 claims on behalf of military personnel bringing claims for noise induced hearing loss against the Ministry of Defence.
The judgment, handed down by Lord Justice Dingemans Vice President of the King’s Bench Division and Mr Justice Andrew Baker, determined that the practice of issuing claims using a single group claim form was permissible if the convenience test was met – an approach commonly adopted across the profession for more than two decades.
Our specialist military lawyers represents large group of current and former members of the armed forces bringing claims for hearing loss, said to be as a result of exposure to excessive levels of noise during military service. The claims forming the subject matter of this appeal were issued on a single claim form, a step required as a result of the Government passing the Overseas Operations (Services Personnel and Veterans) Act 2021, which had a potentially negative impact on those who had not issued court proceedings by the date the relevant sections of the Act came into force.
These claims came before the Court for case management on 7 July 2022. The Court on that occasion determined that the Claimants were not permitted to bring their claims via a single claim form, but instead were required to issue individual claim forms to commence their claim. The Claimants and Defendant agreed their approach in advance of the hearing, but after the court raised the issue of individual claim forms, the issue became contested and the Defendant made submissions supportive of the court’s proposal.
The Claimants appealed this decision, arguing that it was permissible under CPR 7.3 and CPR 19.1 to issue a group claim form in this way. The relevant test, it was submitted, was whether the claims “can be conveniently disposed of in the same proceedings”. The Claimants also argued that there was no absolute limit to the number of claimants (or defendants) that can be added to a single claim form and the only relevant test was one of convenience. Further, it was argued that contrary to the findings of the Court, there was no requirement on a Claimant wishing to join litigation subject to a Group Litigation Order, to issue an individual claim form as a pre-requisite for doing so.
At the appeal hearing on 17 May 2023 the MoD contested the appeal, arguing the original order and the reasoning behind it was correct. The Divisional Court allowed the appeal. It determined there was no requirement on a Claimant to issue an individual claim form and the practice commonly adopted to date, namely of issuing claims for more than one Claimant using a single group claim form, was permissible if the convenience test was met. This applied equally to claims subject to a Group Litigation Order. The Court noted several previous examples of group claims where this practice had been followed, sometimes involving many thousands of Claimants.
The Court also determined, contrary to the decision at first instance, that it was not a requirement for claims to be issued on a single claim, that they all had to be capable of determination in one trial. The Court held that the real question was whether the cohort of claims on the claim form had sufficient commonality, in relation to the issues to be determined, that it would be useful or helpful for a determination of any common issues to be made which would then be binding on the remainder of the cohort. If it was convenient for such issues to be disposed of in this way, a single set of proceedings would be justified.
Speaking about the decision, Simon Ellis, partner and head of the Military Department at Hugh James, commented:
“We welcome today’s judgment which confirms the long-standing practice of issuing groups of claims using a single group claim form, in circumstances where the claims have a high degree of commonality, as has been the case across the profession for more than 20 years.
“At Hugh James, our specialist military lawyers are representing thousands of current and former military personnel who have suffered hearing loss because of unprotected exposure to excessive levels of noise during service, due to no fault of their own. We hope this decision represents a further step towards obtaining the redress they deserve.
“We have great sympathy for our military clients due to the additional delays caused by having to bring this appeal and, on their behalf, are grateful to Harry Steinberg KC and David Green of 12 Kings Bench Walk and to Kate Boakes of Matrix Chambers, for their skill and expertise in dealing with this case and achieving this outcome.
“Following the much-needed judgement we are focused on doing all we can to secure a brighter future for our clients and are urging the MoD to constructively engage with them in order to resolve these claims quickly and in a cost-effective manner.”