Prior to being called to the Bar in 2015, Max Melsa worked with Gerard McDermott KC on all aspects of high-value cases arising from catastrophic personal injury, in particular involving travel and cross border claims of significant value and complexity. He now maintains a mixed practice of civil and family work, alongside representing interested parties at inquests.
The appeal in Abbott and others v Ministry of Defence [2023] EWHC 1475 (KB) concerned the claims of about 3,500 Claimants (for context, the average attendance at Fleetwood Town or Colchester United home games last season) and whether each of those Claimants required their own Claim Forms to be issued.
The Claimants were military personal who claim to have suffered noise induced hearing loss (NIHL). There were key traits within each claim that were common between them. The parties had agreed that there should be trials for lead cases and common issues by the time the case came to Master Davison in July 2022. At that CMC however, the Master questioned whether separate Claim Forms needed to be issued for each Claimant, and in finding that this was the case, directed for each of the Claimants to issue their own Claim Forms within 6 months or be struck out.
In the appeal, the Court considered the wording of CPR 7.3:
A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.
In granting the appeal, three determinations were made:
1. It was not disputed by the parties that being “disposed of” means the claims finally determined, not just case managed [51];
2. The test of convenience is only that common disposal be convenient; it does not require common disposal to be the only possible or reasonable way of determining the set of claims in question, or that separate disposal would be inconvenient [52]; and
3. “Convenient” is an ordinary word which means possible and helpful or useful, nothing more [53].
The Master’s error was to equate ‘the same proceedings’ with ‘a single trial’ which is not what CPR 7.3 requires [55].
In concluding, Baker J set out at [71]:
“The governing principle, therefore, is not whether there is a large number of claimants and / or causes of action. Rather, it is the convenience of disposing of the issues arising between the parties in a single set of proceedings. The degree of commonality between the causes of action, including as part of that the significance for each individual claim of any common issues of fact or law, will generally be the most important factor in determining whether it would, or would not, be convenient to dispose of them all in a single set of proceedings.”
The reality of what was set in motion from the Master’s judgment was the Claimants’ firm being required, within 6 months, to ask each Claimant to provide a Help with Fees Form if appropriate; submit any returned forms to the Fees Office; file a signed Claim Form; and then pay any issue fee required. It was as if Fleetwood Town or Colchester United had to provide season tickets to each person attending a home game, but also pay for them to attend.
Significant issues arose with Claimants being charged incorrect issue fees, the difference needing to be covered by the Claimants’ firm. The Court Office was also understandably overwhelmed.
The appeal judgment is therefore of great assistance to any firm dealing with large numbers of Claimants, reduces pressure upon the Court system, and is a victory for access to justice.
This article was first published as a “Dekagram” by Deka Chambers on 26 June 2023
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