Army claims: Practice direction not followed
The High Court has rejected an application by Welsh firm Hugh James for a group litigation order (GLO) in the face of objections from 18 other law firms.
The firm is acting on over 3,500 noise-induced hearing loss (NIHL) claims brought by former members of the armed services but Mr Justice Garnham said granting an order would have the effect of “severely limiting the access to justice” of a further 5,000 claimants, represented by the other firms.
Garnham J, sitting with Master Davison, said practice direction 19B provided the procedure for applying for a GLO, and it appeared that there had been a “wholesale failure” by Hugh James to comply.
The law firm had not consulted the Law Society’s multi-party action information service to obtain information about other cases giving rise to the same issues, nor had it formed the appropriate solicitors’ steering group.
“They have not devised a proper method to select one firm of solicitors, out of those acting for claimants in such cases, to take the lead in applying for the GLO and in litigating the GLO issues.
“Instead, HJS [Hugh James Solicitors] have simply assumed that they will be that firm. The PD provides that the lead solicitor’s role and their relationship with the other members of the solicitors’ group should be carefully defined in writing. That has not happened.”
The High Court heard in Abbott v Ministry of Defence [2023] EWHC 2839 (KB) that Hugh James issued a claim form against the Ministry of Defence on behalf of David Abbott and 3,558 others in June 2021.
The claimants’ application for a GLO was supported by the MoD, but “opposed by a significant number of claimants in other proceedings represented by firms of solicitors other than HJS”.
Chris Barnes KC, counsel for the 18 law firms, who said his submissions were supported by a further 18, argued that a GLO was neither necessary nor workable.
Hugh James had “at no stage” sought to discuss the need for GLO with any of the firms he represented and there had been “no attempt to consider how the military deafness claims as a whole might properly be managed”.
Most of the other law firms’ claimants had after-the-event insurance, “which, in the majority of cases, would not cover a GLO” and some of the claims were expected to settle, Mr Barnes said.
“Liability is admitted in many of them and many claimants have already received offers of settlement.” If a GLO were made, there was likely to be “very significant delay”,
Counsel for Hugh James, Harry Steinberg KC, said there was “persisting concern” that, without a GLO, trials would take place in other claims in which the generic issues would need to be determined by a court without the benefit of evidence prepared for the test claims.
There were “significant common issues amongst such claims which, once determined, would constitute real progress towards the final determination of the whole cohort”.
It was common ground that if a GLO were granted, the MoD would apply to stay all other military NIHL cases around the country.
Garnham J said: “Accordingly, the effect of a GLO would be to restrict the access to the court of many claimants not represented by HJS until the lead cases within the GLO are resolved, a period unlikely to be less than two years.
“In our judgment, the court should be slow to take a step that would have that consequence, especially where large numbers of claimants would be disadvantaged or delayed in their pursuit of proper compensation, and where the procedures for achieving unanimity of approach have been ignored by the applying firm.”
It might be possible for Hugh James to remedy the procedural position by complying with the practice direction in future months.
“But certainly for the present, we regard HJS’s failures in this regard as a factor pointing firmly away from the grant of a GLO. To grant such an order in this case would have the effect of severely limiting the access to justice of those represented by firms other than HJS.”
Further, given the variety of claims, it appeared that findings in the lead cases would not be dispositive of many others, the judge observed. “Those other claims will still need to be thoroughly investigated and presented in detail. Furthermore, a GLO will impose its own burden of administration, effort and costs.”
He rejected the contention that the “floodgates” would open without a GLO, saying there was no empirical evidence of a likely flood of claims being litigated to trial. Figures suggested that, in the last five years, 4,153 military NIHL claims have been settled with only two or three trials resulting.
Garnham J added the court did not “exclude the possibility that a GLO might be justified at some stage in the future if, for example, there is the flood of cases in the county court, or inconsistent decisions at circuit judge level emerge.
“If there was a renewed application, it would be essential that the solicitors making the application had followed the guidance in the practice direction before doing so.”
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