High Court of Justice, King's Bench Division, 31 July 2024 per Mr Justice Garnham and Master Davison

‘On the bus.  Off the bus’ *

Overall Summary:

This case concerns a cohort of claims brought by ex-military personnel against the Ministry of Defence (MOD) for non-freezing cold injuries (NFCI). The primary issue before the court was whether these claims should continue to be pursued via an ‘omnibus’ Claim Form - where multiple claimants are joined in a single claim - or whether they should be ‘disaggregated’ into individual claims due to administrative and procedural complexities, largely due to limitations of the court’s ‘CE File’ system.

The court examined the application of CPR r7.3, which allows multiple claims to be joined if they can be ‘conveniently disposed of’ in the same proceedings. Balancing the convenience to the parties against the administrative burden on the court system, the judges ultimately decided to maintain the status quo for the existing claims but imposed restrictions on future claims.

The Parties’ Submissions:

Unusually, the parties were in agreement that there should be no ‘disaggregation’ of the Claim Form.  Arguments were:

• Common Issues: All claims involve similar factual backgrounds and legal issues related to NFCI, making joint proceedings efficient.

• Generic Evidence: The claims rely on shared generic expert evidence, particularly from vascular consultants and neurologists, which was applicable across the cohort.

• There was no requirement that all cases be determined at a single trial: The test of convenience did not require the same, though determination of an issue in one trial may be persuasive in another.

• Cooperation:  The parties had cooperated to ensure the smooth running of the cohort.

• Procedural Efficiency: The use of an omnibus Claim Form facilitates coordinated case management and reduces duplication of effort. Disaggregating the claims would impose additional costs on the claimants, including higher issue fees and administrative expenses.

• Management of difficulties with CE File:  This had been addressed by orders already made.

• Precedent: The parties referenced the Abbott case, where an omnibus Claim Form was approved in similar circumstances.

The Court's Decision:

The court, after careful consideration, decided not to disturb the existing arrangement for the current cohort of claims. Key points in the judgment included:

• Hesitation Over Administrative Burden: While acknowledging the administrative challenges posed by the omnibus Claim Form, the court recognized that disaggregating the claims would impose additional burdens on both the parties and the court system.

• Convenience Under CPR 7.3: The court emphasized that ‘convenience’ includes the efficient use of court resources. However, they accepted that the parties had relied on previous judicial orders allowing the omnibus Claim Form.

• Maintaining the Status Quo: The court determined it was more practical to continue with the current arrangement, especially given the progress made and the parties' cooperation.

• Restrictions on Future Claims: To prevent further administrative complications, the court ordered that no new claims be added to the existing omnibus Claim Form. Future claimants must issue fresh Claim Forms, each limited to a maximum of 60 claimants, and follow specified procedural guidelines.

Conclusion:

This case underscores the court's discretionary power under CPR 7.3 to balance the convenience of the parties with the wider administration of justice. While recognizing the procedural challenges posed by the omnibus Claim Form, the court opted for a pragmatic solution on the facts of this case that maintained the progress of the existing claims without exacerbating obvious administrative difficulties. The decision provides important guidance on managing large cohorts of similar claims and highlights the need for flexibility in such cases.  Omnibus Claim Forms are on the radar of the Civil Procedure Rule Committee.

* A phrase used by military personnel to demonstrate how orders frequently change – no sooner than one order is made and completed (getting on the bus) then the opposite order is made (to get off the bus).

The full judgement can be found here.