B e f o r e :
MRS JUSTICE PATTERSON
David Allan QC (instructed by Hilary Meredith, Pannone and Scott Rees & Co) for the Respondents B Auld, D Blue, A Dawson, C Dodd, N Dravikula, C Hamilton, M Leighton, W Matthews, L Mentha, S Morris, C Shread, D Simms, J Sivoinauca, D Sloan, M Zecca, A Sipos and J King
Timothy Grice (instructed by Harris Fowler Solicitors and Wixted & Co) for the Respondents J Adams, C Burridge, W Downey, S Duffy, D Durrheim, S Reeve, E Williams, A Hodgson and A Monro
Brent McDonald (instructed by Gil Akaster LLP) for the Respondent D Scholey
Leigh-Ann Mulcahy QC, Adam Heppinstall and Hannah Curtain (instructed by The Treasury Solicitor) for the Appellant
Hearing date: 22nd May 2014
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mrs Justice Patterson:
- This is an appeal by the Ministry of Defence from a judgment of Senior Master Whitaker dated the 6th December 2013. His judgment dismissed an application by the appellant made on the 25th February 2013 under section 41 of the County Courts Act 1984 for an order:
a) to transfer the personal injury claims, made by serving and former service personnel alleging noise induced hearing loss (NIHL) caused by service, which are listed at Schedule 1 to the attached witness statement of Helen Mary Horsfall, from existing County Courts all around the country to the High Court in London so that they may be case managed centrally;
b) to transfer any subsequent cases that raise the same issues to the High Court;
c) to provide for a common case management process and timetable for these claims
in order that the cases can be managed expeditiously, consistently and in a way that minimised use of public funds.
- Permission to appeal was given by Mrs Justice Simler on the 17th February 2014.
- The claims the subject of the application are claims in negligence for personal injury sustained by serving and former service personnel which allege NIHL caused by service in the armed forces.
- A common issue in the claims is that NIHL has been caused in combat abroad or in pre-deployment training.
- Prior to late 2011 claims of NIHL arising in the same way were dealt with on an individual basis in whichever County Court the proceedings were issued in. It is unknown how many such cases there have been but it has been described as a fair number.
- Since late 2011 there has been a change in approach by the Ministry of Defence in how it deals with such cases. Although certain of the pending cases have been and are being completed in the local County Court they are to be regarded as run off cases. There were 62 claims in total at the time of the hearing. At the time of the appeal before me there were some 74 actual and prospective claims. I was told that 45 had been issued and 29 were at the pre-action stage.
- All claims have been stayed pending the outcome of this appeal. The exception is that of Mr Ek Pun in which the parties have agreed that the appeal should be dismissed. I have approved a consent order to that effect.
- There are six grounds of appeal. They are:
i) the Senior Master applied the wrong test to determine whether or not it was appropriate to order a test group of claims and misinterpreted the judgment of the Supreme Court in Smith v Ministry of Defence  UK SC 41 in its application to the present claims;
ii) the Senior Master failed to give any or any proper consideration to the degree of commonality across the group;
iii) the Senior Master failed to give any consideration to the importance of achieving consistency in first instance decisions across the group, specifically in relation to the determination of the existence and scope of a duty of care in combat conditions, following the guidance of the Supreme Court in Smith;
iv) the Senior Master wrongly took into account the issue of delay when in reality delay was a "neutral point" and will occur irrespective of whether or not a test group is ordered;
v) the Senior Master failed to give consideration to proportionality, specifically in relation to the duplication of disclosure and expert evidence, contrary to the Overriding Objective in CPR 1.1 that the court should decide cases at proportionate cost;
vi) the Senior Master failed to give consideration at all to the criteria for a transfer of claims to the High Court as set out in CPR 30.3(2) and failed to give consideration to the Attorney-General's note on that topic, specifically in relation to the complexity of the proceedings, public interest, and the location of the MOD and the Treasury Solicitors.
- All the claims raise the question of the extent to which, if at all, the appellant owes a duty of care (and, if so, what standard of care is applicable) where loss and damage is alleged to have occurred due to a failure to exercise reasonable care on the actual or simulated battle field; including in making procurement decisions about personal protective equipment (PPE) and other equipment to be used in such circumstances.
- The claims engage the principles set out in Smith. However, none of the claims in Smith concerned noise exposure. Nor did they deal with the particular difficulty in protecting against such exposure in combat or simulated combat situations such as the need for training in situational awareness and nor deal with the requirement of sufficient protection in certain circumstances.
- The appellant's application to transfer the claims to the High Court was said to be a preliminary step to the establishment of a scheme of common case management, such as the making of a group litigation order (GLO), and/or directions for trial of lead or test cases.
- The appellant acknowledges that it is asking the court to set aside a case management decision made by the Senior Master in the exercise of his discretion. It considers that the decision is a very serious retrograde step in modern case management.
- The appellant contends that the appeal should be allowed because the decision was wrong (CPR 52.11 (3)). Not only that, the decision of the Senior Master took into account immaterial factors as well as failing to take into account material factors in both of the decisions before him, namely, whether or not a test group of claims should be ordered and whether the claims should be transferred in to the High Court.
Approach to the hearing
- At the hearing Ms Mulcahy QC, who appeared on behalf of the appellant, submitted that the appeal should take place in a manner which was more akin to a re-hearing. That submission was based upon circumstances relating to Senior Master Whitaker. He had resigned his post on the 14th March 2014 as a result of a finding by the Judicial Conduct Investigations Office of serious misconduct. That arose from an investigation which found that Senior Master Whitaker had made misleading entries in his Outlook diary with the intent to mislead anyone who might scrutinise the record. In addition, the judgment of the 6th December 2013 was emailed out to the parties without any prior notice or circulation in draft. It was submitted that Master Whitaker must have been distracted by the investigation.
- There is no evidence before me to support the submission that Master Whitaker was distracted at the time of the hearing on the 4th November 2013. From the transcript of the proceedings he seems to have been entirely on top of the issues that were being argued before him. Although I accept that it is unusual to email out a final judgment without giving the parties the opportunity for amendment or correction his judgment deals with the arguments that he heard in a way that does not appear to be distracted. In those circumstances, I can see no basis for proceeding with the appeal in anything other than a conventional manner. It follows that this appeal is limited to a review of a decision of the lower court in accordance with CPR 52.11.
- When the matter was first before Senior Master Whitaker on the 23rd April 2013 he adjourned the application to await the decision on the Supreme Court in Ellis, Allbuttt and Smith. He gave a short judgment on that day of some 17 paragraphs.
- In that judgment Senior Master Whitaker recorded that there had been a large number of claims for hearing loss brought by service men since at least 2003 against the Ministry of Defence many of which had been dealt with and settled. He recorded that one of the defendant's main concerns was the handling of numerous cases of the same sort in different County Courts throughout the country as a more expensive exercise than if they were to be dealt with in one place. Because of the factual differences between the cases the Senior Master thought that if that was the only reason for transferring the cases, namely, that it would be cheaper and more efficient for the Treasury Solicitor that would not be a sufficient reason to transfer them.
- The Senior Master noted that the opposite side of the argument to that which was put by the now appellant, namely, that the claimants were entitled to have their claims tried without unreasonable delay and that they were entitled to have them tried according to what the dispute was between them and the defendant. He observed that the transfer of the cases would be likely to cause unnecessary delay and there may be problems in relation to funding for the claimants as it was not easy to find funding for group actions.
- He continued that there had to be something else to make it fair and consistent with the overriding objective to transfer the cases. He recorded that he had been taken through the criteria in CPR 30 and bore those criteria in mind.
- He recorded that the defendant had indicated that part of the reasoning behind the application was because they were in the process of changing their approach to how they were going to defend the cases. They were looking to run defences of combat immunity more vigorously. There were possibly other issues, of quantum and noise emitted by military hardware and of levels of attenuation provided by PPE, and specialist expert reports. They were considering changing their attitude to the criteria for diagnosis of hearing loss caused by military weaponry and hardware.
- In his view the Senior Master had to be convinced that all of the cases he was being asked to transfer into the High Court were cases that would involve common issues which were genuine common issues which arose in at least a large number of cases so that they could be tried by one judge in one court. In other words there had to be a good reason for grouping them.
- He then referred to the hearing which had taken place before seven justices in the Supreme Court on the 18th February 2013 in the case of Smith and the fact that judgment was outstanding. He continued "I am not prepared to make an order transferring these cases until I can be sure that there really will be, as a result of what the Supreme Court says, a position in which combat immunity as a defence is based on issues which are common to all these cases or a substantial number of them and which will be binding in all and which appropriately to be tried by one judge as opposed to a situation in which combat immunity is raised as a defence in each case but it depends entirely on the facts of each case and the criteria laid down by the Supreme Court."
- On the other issues such as noise emitted by military hardware the Senior Master was not prepared to make an order transferring the claims without there being some further analysis which could illustrate to him that there were actually issues that were appropriate for one judge to try so that there was not the position of inconsistent judgments around the country. The same applied to diagnosis of injury.
- At the end he adjourned the application to await the decision of the Supreme Court. He continued,
"By that stage, I want to make it absolutely clear, I will want, if the defendants are going to go on with this application, to be convinced that it is not just that there is a common defence, for example, combat immunity in each case, but that there is a situation in which a High Court judge should make a decision in respect of combat immunity or other issues which will be binding and relevant in all or a large number of these cases. If the situation is that it is just that a common defence is being raised in each case, and will have to be worked out on the individual facts of each case according to guidance we have been given in the Supreme Court then I do not see that as a reason for having these claims dealt with together, because I am not convinced that just bringing them here to make it easier for the Treasury Solicitor to manage them all in one court is an adequate reason for bringing them here."
- The hearing resumed on the 4th November 2013.
- In his judgment of the 6th December 2013 the Senior Master referred to his earlier judgment in which he said that he had not been satisfied that the case for transfer had been made out. He observed that the relevant areas of "common defence" were more numerous than just the combat immunity defences foreshadowed in Smith i.e. that a duty of care should not be found to exist in the circumstances of these or many of these claims and if it does, the standard of care should be calibrated at a lower level.
- In paragraph 5 of his judgment the Senior Master referred to the judgment of Lord Hope in Smith representing the view of the majority. It was their view that the defence of combat immunity should be construed narrowly and that it applied only in respect of active operations against the enemy. He quoted from paragraphs  and  of Lord Hope's judgment.
- On the separate question of whether it would be fair, just and reasonable for the MOD to be under a duty of care to avoid injury he noted that Lord Hope referred to the Court of Appeal's judgment in Mulcahy v MOD  QB 732 where it was held that there was no duty on the MOD in battle conditions to maintain a safe system of work nor did one soldier in those circumstances owe a duty of care to another. He then quoted Lord Hope at paragraph  where he said,
"… the question whether a duty should be held not to exist depends on the circumstances, on who the claimants are and when, where and how they are affected by the defendant's acts. Circumstances in which active operations are undertaken by our armed forces today vary greatly from theatre to theatre and operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk which must of course be avoided of judicialising warfare. For these reasons I think that the question, whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence."
- The Senior Master continued in ,
"Therefore in my judgment the question of whether the combat immunity defence can be made out or whether a duty of care is owed when the standard of care should be recalibrated in any claim is clearly fact sensitive. In effect the Supreme Court decided that such matters cannot be the subject of strike out on assumed fact. There must be a trial of the facts or I would suggest, at the very least, agreed facts upon which to base a final individual decision in each claim."
- The Senior Master noted that the cases in Smith in which the MOD was running the combat immunity defence were now back in the QBD being managed as individual claims on their own facts.
- The Senior Master continued that he did not accept that the Supreme Court had not given clear guidance and said in ,
"Indeed this is the guidance, that whether a claim falls within the narrow confines of the combat immunity defence is a matter to be decided on the facts of each case if necessary after they have been tried and found and similarly that the question of whether a duty of care should be imposed or the standard of care adjusted is equally a matter to be decided on the facts of each case as has been the case in respect of many previous first instance decisions."
- The Senior Master then recorded the MOD submission that where there are common allegations of negligence of similar factual circumstances the use of lead or test cases has a role to play in the efficient and proportionate resolution of claims. The MOD argued that the situation would result in a series of County Court trials arising in a random order and with the inherent potential for inconsistency that would be followed in all likelihood by appeals by the unsuccessful party to the Court of Appeal. That meant that there was the potential for stays of other claims behind any appeal and the claimants could be in the same position as that in which they were now with further delay and additional expenditure.
- That argument was rejected at  in the following terms,
"I reject that argument. In my judgment it is not that there will be answers to the legal test to be applied in 62 different ways. The fact is that the outcome may well be different in 62 different ways according to the facts of each case. In my judgment Mr Allen QC for some of the defendants and other counsel who put forward the same argument are correct to say that the situation which I envisaged in my interim judgment- "If the situation is that it is just a common defence is being raised in each case, and will have to be worked out on the individual facts of each case according to the guidance that we have been given in the Supreme Court" has in fact come to pass."
- The Senior Master concluded at  as follows,
"If I were to bring these claims in their entirety to the RCJ and choose some of them as test cases and stay the remainder there would be considerable delay in the resolution of the question in each case on its facts depending on the circumstances and the different types of 'kit' involved as to whether there was a duty of care and what the standard of care was in those circumstances. I think this would be unjust and not in keeping with the overriding objective even in its amended form. Of course litigation must be run at proportionate cost but that can relate to each individual claim just as much as the overall cost of several. When it is alleged by a numerous group of claimants that an alleged tortfeasor has negligently injured them in as many different circumstances as there are claims, it is not surprising that the tortfeasor may have to stand the expense of defending numerous claims in courts which are local to those claimants giving them local and for them speedier and cheaper justice. I have not forgotten that it was some years ago that the right of the crown to insist on claims being brought to London was abrogated. Having listened carefully to the defendants arguments it is my view that they are in reality wanting to bring these claims here to make it easier and cheaper for them to manage and fight them. I have no doubt that from their point of view that is perfectly legitimate and I do not criticise them for that but in balancing the advantages to them against the detriment to the individual claimants I have come to the conclusion that the defendant's application must be dismissed."
Misapplication of the legal test
- The appellant submits that paragraphs  and  of the judgment of Senior Master Whitaker show the test which he applied. The commonality that the appellant is concerned about was not of outcome but of issues. By analogy the appellant is seeking an approach similar to that which pertains for group litigation orders (GLO) to provide for case management of claims which give rise to common or related issues of fact or law. The confusion of Senior Master Whitaker is that in Smith the majority of the Supreme Court were not prepared to strike out claims without a factual basis.
- In Smith Lord Hope said at,
"The question which these claims raise is whether the doctrine of combat immunity should be extended from actual or imminent armed conflict to failures at that earlier stage. I would answer it by adopting Elias J's point, with which Owen J agreed in para 99 of his judgment in this case, that the doctrine should be narrowly construed. To apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it has previously been applied. That in itself suggests that it should not be permitted. I can find nothing in these cases to suggest that the doctrine extends that far.
He continued at [94 H],
"The principle as he described it is not limited to acts or omissions in the course of an actual engagement with the enemy. It extends to all active operations against the enemy. While in the course of actually operating against the enemy, the armed forces are under no duty of care to avoid causing loss or damage to those who may be affected by what they do. But, as Dixon J also said at page 362, there is a real distinction between actual operations against the enemy and other activities of the combatant services in the time of war."
- On procurement the appellant referred to  of Lord Hope's judgment which recognises that procurement depends ultimately on the allocation of resources which might be influenced as much by political judgment as by the judgment of senior commanders at Whitehall. As a result the fact that decisions about procurement are taken remote from the battlefield does not always mean that they will be appropriate for review by the courts.
- As to the argument that it would not be fair, just and reasonable to impose a duty of care at common law to protect against death or injury Lord Hope said at ,
"The closest the cases have come to applying that reasoning to cases involving members of the armed forces is Mulcahy v Ministry of Defence  QB 732, where Neill LJ said at p 750 that there was no duty on the defendants in battle conditions to maintain a safe system of work and Sir Iain Glidewell said at p 751 that one soldier does not owe to another a duty of care when engaged in battle conditions. As in the other cases, the question whether a duty should be held not to exist depends on the circumstances – on who the potential claimants are and when, where and how they are affected by the defendant's acts. The circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and from operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare. For these reasons, I think that the question whether the claims in this case fall within the exclusion that was recognised in Mulcahy or any extension of it that can be justified on grounds of public policy cannot properly be determined without hearing evidence."
- The appellant submits that what needed evidence was the issue of justiciability. There were, however, strong dissenting judgments from Lords Mance, Carnwath and Wilson.
- The common issues that are said to arise in the NIHL cases are as follows:
a) whether or not an injury sustained as a result of noise exposure in combat conditions is justiciable in principle (by reason of combat immunity or otherwise).
b) whether or not procurement related issues in particular (including failure to provide/replace PIHP/PPE) are justiciable (whether by reason of combat immunity or because no duty of care arises by reason of the Caparro third limb) and, if so, the nature and scope of the MOJ's duty in making such procurement decisions and the standard of care applicable.
c) whether or not the alleged the incompatibility of PPE with a claimant's radio/helmet and whether or not the choice of whether to wear the PPE to preserve situational awareness in combat or related conditions are justiciable matters and, if so, the nature and scope of the MOD's duty in respect of these alleged inadequacies in the PPE and the standard of care applicable. Further, whether as a matter of fact the alleged inadequacies in the PPE are established.
d) whether or not the alleged failure by the MOD to enforce use of the PPE in combat or related conditions is justiciable and, if so, the nature and scope of the MOD's duty in this regard and the standard of care applicable. Further, whether as a matter of fact the alleged lack of enforcement is established at a general level.
- Three cases have been selected by the appellant, namely those of Durrheim, King and Shread as possible test cases against which the common issues can be appraised. Counsel for the appellant stresses that the appellant is open minded to receiving suggestions on other suggested cases if the claimants' wish to bring forward any. As part of their appraisal they have reviewed all the other claims lodged against the proposed criteria.
- The selection it is submitted enables the issue of hearing loss in a combat situation, hearing loss from equipment provision and its suitability and hearing loss from pre-deployment training to be evaluated and whether it is fair, just and reasonable to impose a duty of care in the circumstances to be considered.
- The appellant accepts that issues of limitation will have to be considered on an individual basis. There are some 17 claims where the issue of limitation is raised.
- The appellant submits that the Senior Master provided no analysis on the issue of commonality and the extent to which it is relevant in the making of a GLO or test group of claims in principle. The appellant submits that the Senior Master focused wrongly on the fact sensitive nature of the claims and, in particular, the fact sensitive nature of the question of duty of care following Smith. That approach ignores the fact that all claims within a group will fall to be determined on the basis of their individual facts in a GLO judgment or that orders on the GLO issues are binding on the whole group save where the court orders otherwise on the application of individual claimants who have successfully argued that the facts of their claim call for a different determination. That situation does not mean that there is any bar to the making of case management directions which seek to determine common issues of law and fact which a group of claims share.
- The emphasis placed by the Senior Master on the case of Smith has to be seen in the context of a strike out application. The need for evidence to decide whether a defence of combat immunity should be successful or whether it is fair, just and reasonable to impose a duty of care has been wrongly transported from the Senior Master's consideration of Smith to his consideration of the appropriateness of the proposed test group.
Ground Two - Failure to have regard to identified common issues
- It is submitted that Senior Master Whitaker did not take sufficient account of consistency of decision making. The appellant relies on the judgment of Lord Woolf in Boake Allen Limited v Revenue and Customs Commissioners  I WLR 1386. In particular, reliance is placed on paragraphs 30-32 where Lord Woolf dealt with the importance of taking litigation steps that generate the least possible costs. Since then there has been a further shift as a result of the Jackson reforms and the change to the overriding objective which is now to be decided at proportionate cost.
- The reason why costs are of such importance here is because disclosure will involve some 27 firms of solicitors where the defendant may find itself having to produce the same documents 27 times.
Ground 3: Failure to have regard to consistency in decisions
- The appellant acknowledges that the Senior Master considered the issue of consistency but the question depends on the extent to which there are common issues which have been able to be identified.
Ground 4: Incorrectly taking into account a "neutral" point: delay
- The appellant submits that there will be delay in any event. No case has got past the close of pleadings. The issue of disclosure will take some considerable time. Inevitably that will act as a break on the speed of proceedings. Because of the issues involved it will be necessary to consider redaction for security reasons. If that can be done in a co-ordinated way that will make case management much simpler.
- The likely alternative to common management is a series of trials in the county courts arising in a random order from which there may be a series of appeals.
Ground Five - Failure to take into account proportionality and cost savings
- It is submitted that the Senior Master failed to give consideration to the proportionality of the order sought as opposed to the alternative of permitting claims to proceed on an individual basis. By providing a common disclosure timetable and directions the possibility of separate trial judges taking different views and satellite litigation is reduced. The Senior Master gave no consideration to the likely cost implications of running separate disclosure exercises.
- On expert evidence it is submitted that there are potentially 74 experts to be involved on behalf of the respondents if the claims are run separately. The expert evidence that is required for the determination of the claims to a large extent will be generic and there is nothing to be gained from repeating the exercise in each claim. Without a common case management framework there is a prospect of that occurring.
- No reference to any of those arguments is made by the Senior Master and the only mention of expert evidence appears in the summary of the MOD's submission followed by the bare rejection of that argument.
Ground Six - Failure to have regard to the criteria for transfer: CPR 30.3
- The Senior Master failed to give sufficient weight to the criteria set out under the CPR and gave no weight at all to the Attorney General's note at Annex 1 to PD CPR 66.
- Whilst not contending that the Senior Master had to exhaustively set out the criteria or the supplementary considerations in the Attorney General's note there was an onus upon him to at least confirm that the guidance had been taken into account. The bare reference to the criteria in part 30 in his first judgment is inadequate.
- Mr Allan QC, on behalf of several of the respondents, made three introductory points. First, the numbers of claims involved are relatively small. It is unlike the litigation which has involved hundreds or thousands of claimants. Further, it is litigation which has been carrying on for a number of years.
- The history of the litigation is such that claims by forces personnel for NIHL have been made over a period of time. The only evidence about the history has come from the solicitor acting for a group of claimants. It is of note that cases have been dealt with individually and have been settled. The last one to be settled was late in 2012. They have all proceeded in conventional fashion in the County Court which is the appropriate forum.
- Third, cost. From the claimant's perspective that is a vital consideration. At the first hearing the court had been alerted to the fact that ATE insurance had been provided on the basis of a unitary action. It was highly uncertain that insurers would cover a GLO. In response, the appellant had put forward the alternative test cases. However, that was no solution. It was unlike the case of Allen v British Rail Engineering Ltd  PIQR Q10 @ Q101 where there were common issues to be determined. There, a group of individuals who had worked in a factory contracted a variety of illnesses as a result of working there. All claimants were represented by the same firm of solicitors. Here there are a number of unitary actions where each claimant is represented by different firms. If a procedure is adopted requiring a claimant who is not represented to contribute it is difficult to see why a claimant who is not chosen as a test case should cost share.
- Those with ATE insurance obtained it on the basis of a unitary case in the county court. The level of indemnity in each case is £100,000. That is totally inadequate for a trial of a test case. That is assuming that the insurers are prepared to continue their cover. Upon being asked one insurer would not commit (in relation to 8 cases) and another refused to continue funding (in relation to 11 cases). Those responses were given on the 16th May 2014.
- It requires a compelling case of transfer to be made out. It is not surprising that Senior Master Whitaker came to his conclusion.
- The key question is whether there are common issues of law and fact that require to be resolved in each group of cases. It is evident that Senior Master Whitaker had that in mind in both his April and November 2013 judgments.
- It is clear from paragraph 3 of Senior Master Whitaker's judgment that he addressed that very point. That is not the same as commonality. Each case may have common attributes but that does not mean that the issues are common to each. In this litigation they are not.
- There are so many factual differences relevant to the key issues that the cases can only be decided on an individual basis. When looking at the issues of combat immunity, existence of a duty of care and whether that should be modified those can only be determined in the factual matrix for each case. The events took place in a large number of different theatres; not just countries but within a country there are many different theatres of operation giving rise to different exposures to noise.
- On noise there are a large number of different sources. By way of example, there are 20 light weapons. Each will have its own noise levels and characteristics.
- On enforcement there are a range of different instructions which vary from case to case. The determination in a test case of exposure to levels of noise and the role of noise protection is of limited value to any other case.
- The decision of the Supreme Court in Smith is clear on the extent of combat immunity. It applies to active operations against the enemy. For an individual case the issue will be whether the act or omission relied upon is within active operations. As to duty of care and whether that needs to be modified that will depend upon the factual findings which are unique to the individual case.
- By way of example three claimants were subject to a short review in the the Skeleton argument provided by Mr Allan QC on behalf of the claimants in the first hearing. Two are summarised here. Adam Sipos was on operational training prior to deployment to Afghanistan when operational moulds were made of his ear so that he could be provided with moulded ear protection. It was not provided when he was in Afghanistan operating artillery guns. He was provided with standard issue ear defenders which he had to remove to hear commands. The damage to his hearing resulted in his discharge from the army. Barry Auld enlisted in the army in September 2000. His allegation relates to exposure to loud noise during training and on deployment to Afghanistan in 2009. The appellant alleges that he had suffered deterioration in his hearing by 2004. Limitation is relied upon. The claimant pleads he was not informed of the result of his hearing tests in 2004 and 2006. He had a date of knowledge no earlier than December 2010.
- There are so many factual differences both during deployment and where exposure occurs prior to deployment and in a variety of training conditions that it is unlike the position in Allen v British Rail Engineering where the decision could be rolled out and applied to all cases in the group.
- An individual approach does not mean inconsistent results. The courts will have to apply the law as set out by the Supreme Court but the outcome will depend upon the factual circumstances which are found.
- As to an argument of duplication on disclosure and experts. On disclosure the appellant will have prepared a generic disclosure which only needs to be done once. What has to be done is what is required in an individual case. There is no reason to think that disclosure will be vast. It is difficult to form a view as to how extensive it is likely to be.
- On experts three fields have been identified. On two, medical and employment, they will require knowledge of an individual. On the third, engineering and/or acoustics, there will be some generic matters but assessment of exposure will have to be individual.
- On the question of limitation the appellant accepts that it is individual to a specific case but it is raised in a substantial number of cases. Whilst accepting that the existence of individual issues does not preclude a court from deciding test cases it emphasised that it is not straight forward.
- The delay which has occurred thus far has already been significant. It is said to be neutral. Experience shows that test cases do slow down litigation and make appeals more likely.
- The problem of funding will affect the speed of the process if the claims are able to proceed at all.
- Mr Grice adopted the submissions of Mr Allan QC.
- There had been delay thus far. Process would not speed up if the claimants became enmeshed in group action.
- On ground three the fact that the outcome may be different in the 70 plus cases was simply a result of how litigation worked.
- Delay was not a neutral factor. Test cases have to await an agreed procedure before they could be heard. There was no agreed procedure here or any suggested by the appellant. Senior Master Whitaker was entitled to take that into account. There was then delay inherent in cases being pushed behind a test case.
- Grounds five and six were covered by Mr Allan. On funding ATE funding landscape had changed enormously since 2013. As a result no insurer was rushing to assume risk. The position was thoroughly uncertain.
- Mr McDonald, who represented the claimant Scholey, was concerned that the issue of date of knowledge in his case be considered. If his claim was stayed as it dealt with issues between 1997 until 2012 they would be harder to deal with. His chance of justice would, therefore, be harder if he had to wait longer.
Discussion and conclusions
- The appellant faces a high threshold to overcome. This was a case management decision involving the exercise of judicial discretion. As the Court of Appeal have emphasised such a decision should not be lightly interfered with by an appeal court: see Mannion v Ginty  EWCA Civ 1667 at .
- There is some overlap between the grounds as formulated by the appellant. Notwithstanding that I will attempt to deal with matters in the same order that they were raised before me.
- The case of Smith is regarded as important by all parties. It was to await its hand down that the hearing was adjourned. In his judgment of the 6th December the Senior Master referred to his earlier judgment and made it clear that the two were to be read together. Rather, the earlier judgement is incorporated within and forms the basis for many of the comments in the December judgment. I have set out extracts from the judgment in Smith above. The Senior Master recorded that Lord Hope and the majority in the Supreme Court held that the scope of combat immunity was to be narrowly construed: it applied only in respect of active operations against the enemy. Decisions on the provision of protective equipment, training and its adequacy are outside that defence.
- On the question of whether it was fair, just and reasonable for the appellant to be under a duty of care to avoid injury and whether there should be any modifications to that duty if it existed those were all matters which the Senior Master found to be clearly fact sensitive. The Supreme Court had found that there had to be a trial of the facts before being able to adjudicate whether it was possible to strike out the claims before it.
- The Senior Master accepted that there were the three issues to be addressed as submitted by the appellant. Where he departed from the appellant was in his finding that the Supreme Court had given clear guidance.
- Although dealing with the position on a strike out application the judgment of Lord Hope is, in my judgment, clear. Lord Hope and the majority found that the scope of combat immunity should be construed narrowly. It is restricted to active operations against the enemy (see paragraph 94). The duty of care may extend to where men are being trained whether in pre-deployment or in theatre or when decisions are being made about the fitting of equipment to tanks or other fighting vehicles because in each of those situations there is time to think through the implications (see paragraph 95). Where, as in Private Ellis' case, there was a constant threat of enemy action by insurgents which was liable to cause death or injury there may have been a failure due to decisions taken by local commanders during active operations on the ground. In those circumstances there may be an argument that those claims are within the doctrine but that can only be determined on the facts (see paragraph 96).
- Whether it is fair, just and reasonable to impose a duty of care at common law will depend upon the circumstances. As Lord Hope said,
"Circumstances in which active operations are undertaken by our armed services today vary greatly from theatre to theatre and operation to operation. They cannot all be grouped under a single umbrella as if they were all open to the same risk, which must of course be avoided, of judicialising warfare."
- For those reasons Lord Hope found that whether the claims fell within the exclusion of combat immunity or whether any extension of it could be justified on the grounds of public policy could only be determined upon hearing evidence (see paragraph 98). He continued,
"Close attention must be paid to the time the alleged failures are said to have taken place, and to the circumstances in which and the persons by whom the decisions that gave rise to them were taken. It would be easier to find that the duty of care has been breached where the failure can be attributed to decisions about training or equipment that were taken before deployment, when there was time to assess the risk to life that had to be planned for, that it will be where they are attributable to what was taking place in theatre." (paragraph 99)
- Although there are very strong dissenting judgments which reveal a difference between the minority and majority in Smith they are dissenting judgments and I am bound to follow the majority.
- Senior Master Whitaker determined that the Supreme Court had given clear guidance by expressing his view in paragraph 10. That is one to which he could reasonably come for reasons which I have set out above. I do not accept, therefore, that the Senior Master misinterpreted or misapplied the judgment in Smith.
- The appellant submits that the Senior Master misled himself as he regarded commonality as being one of outcomes as opposed to being one of the issues which was at the heart of their argument. References were made to CPR 19.10 which provides the definition of a GLO. That is an order made under CPR19.11 which gives rise to common or related issues of fact or law.
- The Senior Master was very aware that that was the position. In his April decision, at paragraph 10, he said,
"I would have to be convinced that all of the cases that I was going to bring in here are cases which can be put under criteria of common issues of that sort and that these are genuine common issues which do arise in each or a large number of cases."
- It is quite correct that the Senior Master did not embark on a detailed analysis of the four common issues identified by the appellants nor did he scrutinise their application to the individuals proposed as test cases but he was clearly aware of the principles which he had to apply. He wished to clarify matters for the then defendant if it was to continue with the application (in paragraph 17). In his December judgment he referred back to that (at paragraph 12) when he concluded that the situation which he had envisaged in his interim judgment had in fact come to pass. As a result he was not persuaded even on the evidence that was before him that the cases did give rise to common issues of fact and law. In my judgment he applied the correct principles and came to a decision that he was entitled to as a matter of his discretion on the evidence before him. To condescend to the minute detail of the test cases is expecting too much of a judge in a case management decision of this nature.
- If that is wrong then I have looked at the extremely useful spreadsheet that was produced by the appellant which illustrates the variety of weapons involved, each as a noise source. By way of example some 20 light weapons are listed. In addition, there was considerable variety of PPE. The noise exposure occurred in a wide variety of situations including active operations and training. In those circumstances an assessment of noise exposure in one case will be of limited, if any utility, in relation to another.
- Some of the factual differences in the cases were set out in the earlier skeleton argument provided by Mr Allan QC on behalf of the claimants. That illustrates that one is not dealing here with a class of case which is similar to, for example, the white finger vibration cases. Although there is a common complaint of NIHL the issues of causation and breach of duty are sufficiently different, absent any other cogent argument to weigh in the balance, for a decision maker to come down against the transfer of the cases. In the circumstances if there are no or insufficient common issues of fact or law then the individual decisions will not be inconsistent but will be taken in their own factual context.
- Ground two I have dealt with in the analysis above.
- Ground three on consistency of decision making I have, in the main, dealt with also. For the reasons set out I do not think that the Senior Master confused the outcome with the issue of approach that the court needs to apply to come to his decision.
- Although the appellant contends that the Senior Master failed to consider the significance of an inconsistent approach by individual County Courts in relation to the principles to be applied to the individual cases that is not a submission that I accept. He was well aware of the large numbers of claims for hearing loss that had been brought since at least 2003 and to which he referred in his April judgment.
- In paragraph 11 of his December judgment he summarised the submissions made by the appellant which show that, in my judgment, he had grasped the concern of the appellant about inconsistency clearly. He did not regard the possibility of inconsistent approaches in what were then 62 cases as an issue. That is clear from his second sentence in paragraph 12 which says "in my judgment it is not that there will be answers to the legal test to be applied in 62 different ways". The clear inference of that is that he assumed that the legal test will be applied consistently. The importance of consistency therefore was one that he considered but disagreed with the appellant about.
- Ground four. The appellant contends that Senior Master Whitaker wrongly took into account the neutral point of delay. I reject that submission. He considered the consequences of transferring the claims into the High Court including the selection of some test cases. He was concerned that there would be considerable delay in the resolution of the question in each case on its facts. He had considered the opposing side of the argument in his April interim judgment when he said at paragraph 6 that "one has to take into account on the opposite side of the balance the fact that the claimants are entitled to have their claims tried without unreasonable delay and they were entitled to have them tried according to what the dispute is between them and the defendants, not what the dispute is between other similar claimants and the defendants."
- The appellant has argued that throughout the proceedings that delays is neutral because, first, of the extent of disclosure which is required and, secondly, the inherent risk of appeals from a series of trials in the County Courts arising in a random order.
- It seems to me that there has already been significant delay. The problem of continuing funding is clearly real for the claimants. Information given to me, which I have set out above, about the attitude of insurers illustrates the precarious nature of the funding position. The appellant submits that if there is an undue burden on other cases then it may be that their position will change and that they could reconsider the position of a GLO.
- Further, the appellant contends that the amount of indemnity obtained in the ATE policies illustrates that insurance was obtained on the basis that the MOD would settle the cases. The current limit does not take account of the fact that the costs are greater if the claims stay where they are. The position on the remaining 25 claims is (outside the 11 and 8 about whom information was known) unknown. What was important is that the court needed to make its decision justly and proportionately.
- I entirely accept the role of the court is to make its decision in a way which is in accordance with the overriding objective and which is proportionate in terms of cost. That means taking into account the real risk of difficulty in funding for the claimants and delay in obtaining revised funding if the cases are transferred into the High Court.
- Further, although the appellant asserts that the cost will be greater if the claims stay where they are, on the evidence before me, that is completely unsubstantiated. It may or may not be the case. Nor is there any evidence that the indemnity limit for the ATE policy was only obtained on the basis that the appellant would settle.
- I accept that disclosure will be a considerable and time consuming task particularly given the security issues that arise. There will be issues also of redaction.
- The Senior Master was aware of what the appellant was saying about disclosure. Again, it is correct that he did not deal with it in any great detail either in recording the argument or in his rejection of it.
- The likelihood is that there will be both generic and individual disclosure required. Generic disclosure will have to be prepared however the case is run. I find it almost impossible to come to a concluded view as to how extensive the exercise will be on the information that has been placed before the court. What is apparent though is that the appellant had been able to manage the disclosure exercise on previous cases proceeding individually in the County Court without any undue problem or at least any undue difficulty that it has thought to bring to the court's attention. In those circumstances, I am not convinced that disclosure is the obstacle either in time or in extent that the appellant contends.
- Ground five is the failure to take into account proportionality in costs saving. I have dealt with the issue of disclosure immediately above. It is right to say that the Senior Master did not consider the comparative proportionately of the costs of the claims proceeding on an individual basis in the County Court with the costs of a test case approach. So far as I can see there was no evidence before him to enable him to engage upon that exercise. There is certainly no or no sufficient evidence before me to enable me to reach a considered conclusion upon such an exercise.
- On expert evidence it is said that the Senior Master failed to have regard to the proportionality of costs in relation to the duplication of work and costs in respect of the instruction of experts. That could be considerably reduced with common case management. That depends upon the extent to which there are common issues between each of the claims. Three fields of experts were identified, namely medical, employment and engineering or acoustic. The first two are clearly going to be of an individual nature. The third is likely to have what might be described as a generic core that might have greater application to other similar cases but ultimately will need an individual assessment of the noise exposure on an individual. The parties are seeking expert opinion in what is still a highly specialised field of military engineering or acoustics. In those circumstances I am not convinced that there will be any significant cost saving in terms of expert evidence. No indicative quantification has been placed before the court. Further, if it is possible to have a generic core of evidence there is no reason why that cannot be used as evidence in the individual claims and then supplemented by parts of a report which is individual to that particular claimant.
- Overall whilst I can see the strength of the proposition that the issues of disclosure and the instruction of expert evidence can be dealt with more expeditiously within a common case framework I have not had the evidence placed before me to support that proposition. The same was true of the evidence before the Senior Master.
- Ground six. Failure to have regard to the criteria for transfer: CPR 30.3. The Senior Master made no reference to the criteria in Part 30 in his December judgment. However, he expressly records that he was taken through the criteria and bore them in mind in his judgment in April. He was under no obligation, as accepted by the appellant, to set out each of the criteria individually provided he showed that he had taken them into account. Paragraph 8 of his April decision demonstrates that is what he did.
- The appellant submits that it is not clear whether CPR 30.3 (2)(d) which deals with whether the facts, legal issues, remedies or procedures involved are simple or complex was taken into account at all. It seems to me it clearly was. That underlies the reluctance of the Senior Master to give a final judgment in April and is recorded within paragraph 11 of Senior Master's judgment in December. Criteria (e) was also relied upon as the outcome of the claims may be of public interest. That has to be judged in the context that there have been hearings in earlier cases which have not evoked a degree of public interest.
- Criterion (h) refers to the location of the relevant government department and where appropriate any relevant public interest that the matter should be tried in London. The Senior Master clearly had that in mind. He concluded robustly in paragraph 13 as follows,
"when it is alleged by numerous groups of claimants that an alleged tortfeasor has negligently injured them in as many different circumstances as there are claims, it is not surprising that the tortfeasor may have to stand the expense of defending numerous claims in courts which are local to those claimants giving them local and for them speedier and cheaper justice. I have not forgotten that it was some years ago that the right of the crown to insist on claims being brought to London was abrogated. Having listened carefully to the defendant's arguments it is my view that they are in reality wanting to bring these claims here to make it easier and cheaper for them to manage them and fight them."
- In balancing the various factors the Senior Master was clearly of the view that that particular criterion did not operate in favour of the appellant. He balanced the various factors before coming to that conclusion. It was a matter within his judgment to do so.
- It is absolutely correct that the Senior Master made no reference to the Attorney General's note to supplement the Practice Rirection. He did though record, as is set out in the opening sentence to annex 1 of that note, that until recent rule changes the crown was entitled in a high court matter to insist that the venue was the Royal Courts of Justice. Generally, in terms of location the note makes it clear that where there is a high court claim many witnesses as well as lawyers and officials are London based and there may be a disproportionate cost of transferring them to a venue outside London. That is not to say, bearing in mind the Overriding Objective, that the crown would oppose transfer away from the RCJ where it was appropriate, for example, in personal injury disputes.
- In the instant cases claims are currently in county courts as geographically apart as Middlesbrough and Truro. The various firms of lawyers and counsel involved, as well as witnesses, are similarly geographically disparate. One cannot say, therefore, that these are cases where the balance of convenience overall predicates a London venue.
- Even if the Senior Master had had explicit regard to the Attorney General's note, therefore, I do not think that it would have affected the judgment that he reached.
- In all of the circumstances I have reached the conclusion that the Senior Master's decision was correct. Whilst I accept in certain circumstances his reasoning may have been shortly expressed or lacking, the deficiency is not of such an order that one can say that his decision was wrong. Accordingly, I dismiss this appeal.