AB & Ors v Ministry of Defence

I handed down the substantive judgment on the preliminary issues in this case on Friday, 5 June, and put the matter over for any consequential submissions and applications to accommodate the convenience of Counsel. The various applications to which I will refer shortly were made on Tuesday, 16 June.

This Ruling represents the decisions on those submissions and applications.

There are effectively 3 matters to be considered, although there are sub-issues within them. The 3 matters can be summarised thus:

There is some considerable overlap between (i) and (ii) and I will deal with them together.

The Claimants seek their costs of the limitation issue and an interim payment on account of costs. The Defendant submits that the costs should be reserved or be made costs in the case. If I were to accede to the Defendant’s submission, the question of enhanced protection, as I have described it, would not arise because no sums of money would be paid over to the Claimants’ legal team until the conclusion of the substantive trial. The application for enhanced protection arises if I am persuaded to make an order for the payment of costs now and it derives from my observations between paragraphs 238-241 of the judgment. I will not repeat those observations in full for present purposes. I recognised, on the argument I had heard at the limitation trial, that there might be some prejudice to the Defendant if a Lead case surmounted the limitation threshold and was then discontinued because, for example, the view was taken that the case could not proceed because causation could not be established. I invited the Defendant, if it wished to submit that this was so and that CPR Part 38 did not afford adequate protection, to put forward submissions (a) to establish the proposition and (b) on how the Court might retain some control over the situation between now and when any trial takes place to ensure that the Defendant is not so prejudiced.

I should say immediately that, so far as I can recall, my attention was not drawn at the hearing to paragraph 39 of the Group Litigation Order (‘the GLO’) of 5 July 2007. At all events, it was certainly not in my mind when I drafted paragraphs 238-241 of the judgment. It is in these terms:

“After lead/reserve cases have been selected:

a.

Such cases shall only be discontinued; and/or

b.

The Defendants shall only be entitled to make a payment into Court or a Part 36 offer

with the permission of the Court.”

This plainly provides a somewhat wider power than the mere costs provisions of Part 38 and, from the purely procedural point of view, affords the mechanism that at least enables the Court to have some control over the entry into and exit from the proceedings of the Lead cases. Mr Charles Gibson QC did not, as I understood him, disagree that that provision offers the appropriate mechanism for the Court’s involvement should discontinuance of a Lead case be contemplated. However, he submits that it is necessary for me to go further even at this stage in order to ensure that, as he describes it, “injustice” is not done to the Defendant if any of the Lead cases are discontinued.

The basis for the injustice for which he contends can be summarised in the following propositions:

What Mr Gibson contends for in what he suggests are the “exceptional circumstances” of this case is primarily that, notwithstanding the Claimants’ victory on the limitation issue, I should order that the costs of the limitation issue should be reserved to the trial of the substantive issues or that they should be made costs in the case. If, as he recognises, that might lead to the Claimants’ legal team being in effect starved of funds at a time when they might reasonably have been expected to be put in funds, he suggests that the Defendant’s solicitors undertake to pay the Claimants’ solicitors a proportion of their limitation costs on account in return for a cross-undertaking by the them for the repayment of the appropriate proportion of limitation costs (said to be one-tenth) in the event of discontinuance or dismissal of any one of the Lead cases. Another way of dealing with what he argues would be the “injustice … likely to be caused by a conventional costs order” is that I should direct that each of the Lead cases remains a Lead case through to the substantive trial.

I should say that Mr Gibson’s submission that one-tenth of the common costs should be attributed to each of the Lead cases is based upon what he says is the approach adopted by the Court of Appeal in Nash v Eli Lilly [1993] 1 WLR 782, the case arising from the Opren litigation.

Mr Benjamin Browne QC submits that these concerns are misplaced and the approach is misconceived. In the first place, he says that from as long ago as 22 December 2005 the Ministry of Defence indicated that it was taking the limitation point, the preliminary proceedings have been contested on that basis, the Ministry of Defence has now lost on that issue and, accordingly, the costs of that issue should follow that event. He challenges also what he contends are two false assumptions in the Defendant’s position: first, that even if a Lead claimant discontinues his claim at a later stage, the Defendant should necessarily be able to recover the whole of the limitation costs attributable to that Lead claimant’s participation in the proceedings thus far; second, and in any event, that each Lead claimant should be notionally regarded as liable for one-tenth of the total costs.

There is no doubt that group actions such as the present action raise complex funding and costs issues. Whilst efforts will always (and rightly) be made to standardise the approach to the way in which the appropriate structures are put in place, it is difficult to see how a “one cap fits all” approach can apply in all cases. This particular group action (which, by everyone’s assessment, is unique in very many respects) is such that, in my view, it is unduly simplistic to say that the total costs of the limitation issue should be allocated as to one-tenth for each Lead claimant. The parties happened to choose 10 lead cases – they might have chosen 5 or 50. I do not see, therefore, why the fortuitous choice of the number of Lead cases should necessarily impact on how the limitation costs should be apportioned vis-à-vis the Defendant. The reality is that a number of Lead cases (it happens to have been 10) were chosen to assist in determining the limitation issues applicable to all 1011 claimants. I do not consider that I have the material upon which I could decide, if called upon to do so, how or to what extent vis-à-vis the Defendant (i.e. in contradistinction to what may be the position as between the individual claimants) the total cost of the limitation issue should be apportioned as to an individual claimant. Having tried the various limitation issues put before me, it was obvious to me (as will appear from the judgment) that a great many of the generic issues were relevant both to the issue of “knowledge” in an individual case and to the exercise of the section 33 discretion where it fell to be exercised. Whilst the Defendant challenges that view, it happens to be my view and, accordingly, will inevitably feed into my view on the question of costs. In many respects, in my view, the claims (certainly those that are prima facie statute-barred and require a favourable exercise of the section 33 discretion) stand or fall together at the limitation stage.

I accept, therefore, Mr Browne’s submission that the one-tenth assumption made by Mr Gibson does not apply. I am quite unable, as I have said, to determine at this stage what, if any, proportion of the costs of the limitation issue should be attributable to any individual claimant. My instinct is, as already indicated, that that would remain so even on a closer and more detailed analysis because of the many common factors that underlie the issue in each of the individual cases. All I can say is that, should it ever be necessary to make such a decision, considerably further and fuller information than presently is available to me would be necessary.

I accept also Mr Browne’s broad submission that, since the Defendant elected to take the limitation point and has substantially failed on that issue, it should meet the costs of that issue. If there should be a discontinuance of a Lead case in due course, it may be necessary to look at what the appropriate costs order would be, but that is best left until the situation arises rather than trying to work out some formula at this stage. I agree with Mr Browne that it does not necessarily follow that there will be any order for costs at that stage that would involve a repayment of any costs attributable to the limitation issue: it may do so or it may not. It would depend upon the material placed before the court at that time. If the order did involve some element of repayment of costs already paid over then, prima facie, the Claimants’ solicitors would be responsible for the repayment. Doubtless that will be borne in mind when prudent deployment of any monies paid over by way of costs by way of interim payment is considered. But I do not see that situation as an impediment to making the usual costs order at this stage of the proceedings, namely, that the Claimants should have their costs of the preliminary proceedings relating to the limitation issue. Those costs will, of course, include costs referable to the “strike out” issue raised as part of the limitation argument.

I should say, for completeness, that I do not see how I could possibly direct that each of the Lead cases remains a Lead case for the purposes of the substantive trial. Because of the view I have formed about the costs issues that have been raised, I do not see any need to do so even had I considered that I had the power.

I have indicated the order I propose to make. I will return to an issue raised by Mr Gibson shortly, but I need to address briefly the suggestion made by Mr Browne that I should consider ordering the costs on an indemnity basis and interest on those costs on an enhanced basis. The foundation for this suggestion was the rejection by the Ministry of Defence to the invitation in a letter of 1 December 2008 (marked “Without prejudice save as to costs”) from Messrs Rosenblatt to take part in a settlement meeting or mediation. The invitation was rejected by letter dated the 5 December 2008. It was asserted by the Treasury Solicitor on the Ministry’s behalf that “the Defendant’s prospects of success on limitation and on overall liability are extremely good”. However, the practicalities of such a meeting at that stage were also addressed in the following way:

“In accordance with the pledge made to the Lord Chancellor the Ministry of Defence is committed to the consideration of alternative dispute resolution in all appropriate cases. However, we are very surprised that you have suggested at this late stage that the parties now attempt to try and mediate or otherwise settle the matter.

Quite apart from the fact that we do not, on the evidence currently available, consider that any of your clients’ claims have sufficient merit to warrant settlement, it would clearly be impossible to undertake such a time-consuming exercise in the extremely tight time period to the onset of the limitation trial; especially when there is a huge amount of work for both sides still to undertake in order to prepare for the trial. We simply cannot see how any properly prepared or informed discussions could take place without the adjournment of the limitation trial. In the event of any such discussions not being fruitful – and this seems likely given how far apart our respective views of the merits of the claims appear to be – this would inevitably cause a substantial delay to the overall progress of the litigation.”

I was, of course, unaware of this exchange of correspondence until it was drawn to my attention on 16 June. As will be apparent from my judgment (see paragraphs 873-876), I am of the view that the parties ought to consider settlement as soon as they feel they are in a position to do so. I repeat what I said:

“Bearing in mind that most living Claimants are in their 70s, the sooner that the issue is addressed, the better – consistent, of course, with the parties being properly in a position to discuss matters.”

I shall return to this matter below at paragraphs 46-47.

However, I do not think it right in effect to penalise the Ministry at this stage in costs and by way of enhanced interest. Whilst I do not think it was unreasonable for the suggestion for settlement discussions to take place, equally I do not think it was unreasonable to decline the invitation at that stage in the particular circumstances of this particularly complex piece of litigation. The second paragraph of the Treasury Solicitor’s letter quoted in paragraph 16 above was, in my view, a reasonable position to take at that stage simply from the point of view of the practicalities involved.

The order I will make as to costs will, therefore, be on the usual “standard assessment” basis.

I will turn to the other issue raised by Mr Gibson. He invited me to direct that only the costs “wholly and exclusively” attributable to the issue of limitation should be payable and to add those words to the order. I do not consider that that would be a particularly helpful amendment to the usual order. Plainly, if there is to be an assessment of the costs of the limitation issue, then the focus will be upon the costs of and incidental to that issue. Whether it will truly be possible to perform such an assessment and separate out the costs referable to the limitation issue from the other issues before the substantive trial has taken place is, I think, a moot point. I have not yet heard argument on the question of whether the assessment of the limitation costs should be postponed until the substantive trial has taken place, but it is not difficult to see the attraction of taking that view provided that it causes no injustice in the meantime. At all events, should it be necessary for an assessment to be carried out before then, the assessment will be directed towards the costs attributable to the limitation issue. If only for the guidance of the Costs Judge should this occur, it does have to be recalled that the issues were broadened to some extent by the Defendant’s wish to argue that the cases should be struck out as “doomed to fail” on the issue of causation. The Defendant was, of course, entitled to raise that issue, but it cannot wholly dictate the rest of the agenda by doing so. The Claimants were, in my view, entitled to draw attention to the matters that demonstrated, contrary to the Defendant’s case, that there were arguable grounds for suggesting that those who took part in the tests were exposed to more ionising radiation than had ever previously been acknowledged by the Ministry of Defence. That involved a number of matters including endeavouring to demonstrate that it was arguable that the NRPB studies, upon which much reliance was placed by the Defendant, were potentially flawed. Since I was obliged to form a general view of the overall merits on the section 33 issue, it was impossible to isolate merely the causation issue as the Defendant had endeavoured to do.

The decision to make an order for costs relating to the limitation issue having been made, the question is what interim payment on account should be made. The practice, in the very broadest sense, is to make an order for an interim payment in what appears to be a reasonable proportion of the costs claimed, the essential reason being that a victorious party should not be kept out of costs clearly due: see Beach v Smirnov [2007] EWHC 3499 at paragraph 11, per Ouseley J. The particular need for making an interim payment in the context of group litigation was emphasised by Morland J in Giambrone v GMC Holdings Ltd [2002] EWHC 2932 (QB); [2003] 1 All ER 982.

It is always necessary to bear in mind that the process of assessment may reduce significantly the sums claimed in relation to costs. In Mars UK Ltd v Teknowledge Ltd [1999] 2 Costs L.R. 44, Jacob J, as he then was, ordered the payment of two-thirds of a bill for costs (which he described as “extraordinarily high”). There is no established proportion: it depends on the circumstances.

In the papers before me is an estimate dated 15 June 2009 prepared by the Claimants’ solicitors indicating the costs claimed to date. In round terms the claim is for just over £8.3 million to include solicitors’ profit costs (without a success fee), Counsel’s fees (including success fee), non-Counsel disbursements and VAT, and just over £3.5 million for the ATE insurance premium (including Insurance Premium Tax.) The ATE premium is payable shortly given the success on the limitation issue.

In other words, the total sum said to have been incurred by way of costs to date on the Claimants’ side is approximately £11.8 million. The Defendant says that its costs to date are £2.324 million. This is measurably less than the estimate given in August 2007 (a little under £4.2 million which, incidentally, is one element upon which the Claimants’ ATE premium was based) and as reviewed in July 2008 (£3.65 million). I have not been taken through a detailed comparison of the earlier estimates and the costs now said to have been incurred.

I am not in a position to make any very meaningful assessment of the extent to which the overall figure of £11.8 million is open to challenge. As things stand, there is no evidence to suggest that the ATE premium in this unique case was excessive and I can well understand that, with over 1000 individual claimants to represent, together with reviewing the voluminous material and dealing with the complex issues involved, this has been a very labour intensive exercise on the part of the Claimants’ legal and expert team.

Overall, and without descending into details, I consider that the appropriate sum to order by way of an interim payment on account of costs is £7.5 million (inclusive of VAT). This represents approximately 63.5% of the overall sum claimed (inclusive of VAT).

Although a stay has been agreed in relation to the further conduct of these proceedings or any proposed appeal until September 14 (see paragraph 47 below), it has not been suggested (and I can see no grounds for) a stay of the interim payment pending any proposed appeal. Messrs Rosenblatt will be liable for any repayment that might be ordered in the event of any appeal succeeding.

The Ministry of Defence seeks permission to appeal against the orders that will reflect the judgment handed down on 5 June.

It will doubtless be a considerable disappointment to many veterans that the application has been made at all. They will, rightly or wrongly, see it as what they will suggest is a further attempt to delay or prevent them from having their cases tested independently. If they had read the first reaction of the Ministry of Defence to my judgment they would have noted that a spokesperson said this:

"The MoD, while being disappointed with the ruling, respects the judge's discretion to allow the claims to proceed to a trial that will establish whether or not the veterans' illnesses have a causal link to the tests.

We will now review the full judgment before making a decision on how to proceed."

The implication of that statement would probably have been read by many veterans as indicating that, whilst the judgment was to be reviewed fully, the discretion to permit the case is to go to trial was respected and it would be at trial that the issue of the “causal link” between the veterans’ illnesses and the tests would be considered. Whether that inference would or would not have been justified, I have been told that by 8 or 9 June Ministerial approval to seeking permission to appeal against the rulings in the limitation proceedings had been given.

CPR rule 52.3(6) provides as follows:

“Permission to appeal may be given only where—

(a)

the court considers that the appeal would have a real prospect of success; or

(b)

there is some other compelling reason why the appeal should be heard.”

The Defendant relies upon both grounds.

In support of the first ground, the Defendant’s Skeleton Argument suggested that “there is a real prospect of success on one or more of the following main issues on appeal”:

I was surprised at the phraseology of some of those assertions and did not recognise some of the conclusions as conclusions to which I came or which represented the foundations for my decision. However, if the case proceeds to appeal, that will be a matter for others to judge.

Since the Skeleton Argument was relatively brief in its analysis of the likely Grounds of Appeal and was in the form described in the last paragraph, I asked Mr Gibson whether a Draft Notice of Appeal had been prepared. He kindly showed me the draft current as at the date of the hearing on 16 June. It ran to some 19-20 pages and the impression gained on a cursory reading was that it merely rehearsed every point where I had differed from the Defendant’s position and asserted that I was wrong to have done so. Whilst, of course, I understand the time constraints, the Defendant’s legal team were not slow to produce detailed and comprehensive documents during the trial and I do not think it unreasonable to have expected something a little more persuasive and discriminating even by the date of the hearing on 16 June. However, I would not wish to be too critical of what was only a draft and it may be that something more refined will be produced in due course.

I would, however, observe, as I observed to Mr Gibson during the hearing, that whilst my decision is sought to be challenged on a number of grounds, I found no challenge either in the Skeleton Argument or, as I recall, in the draft Notice of Appeal to my conclusion that there was “a case to be answered about the extent of the monitoring in relation to alpha and beta radiation and the way the actual monitoring has fed into the NRPB studies and the responses given by the Defendant over the years” (see paragraphs 386 and 543 of the judgment).

Since the ultimate decision in each of the Lead cases where I found the claims to be statute-barred was based on the exercise of the discretion under section 33, and I indicated that it would have operated in that way had I been wrong in my conclusion on “knowledge” in the cases I found not to be statute-barred, I would normally be of the view that this discretionary exercise would not be likely to be susceptible of a successful appeal.

The bottom line of the matters referred to in the previous few paragraphs of this Ruling is that if this had been a relatively straightforward limitation case, even with some complicated scientific and medical issues involved, a conscientious application of the “real prospect of success” test would have led me to refuse the application for permission to appeal on the basis of the arguments sought to be advanced. However, it is at this point that the second basis for granting permission to appeal arises for consideration.

The Defendant’s Skeleton Argument submitted there are a number of compelling reasons why permission to appeal should be allowed on this second limb of the test. They were enumerated as follows:

I do not find (i) particularly persuasive: it is a unique case raising unique issues and merely because I have taken the view I have on one particular matter does not mean that it would be followed in other group actions. I do not think that (ii) arises particularly: the case has more to do with the application of well-established principles to the very unusual facts obtaining in this case. As to (iii), although the assertion is made in the Skeleton Argument, there is no evidence that there are “many thousands [of cases] in this and other jurisdictions” affected by the outcome. Mr Browne did draw my attention to paragraph 13(d) of the GLO which prevents the addition of further claimants to the action after 1 March 2008 without the permission of the court.

However, I agree with the proposition in subparagraph (iv) with the deletion of the words “of law” where they appear. In other words, in my view, the case is of significant public interest and the issues it raises are of substantial public importance. As I have said on a number of occasions, these were unique events in British history and the applicability of the established law of limitation to those events and to the difficult scientific and medical issues are matters of public interest and importance. Whilst ordinarily I would not necessarily regard the fact that the costs and damages in a case may be potentially substantial to be a reason for granting permission to appeal, it is in some respects an aspect of that general proposition.

I had said to myself some good while ago, well before I knew what decision I would reach, that if asked for permission to appeal by whichever was the losing party I would almost certainly grant permission on this basis. I must be true to that view which has not changed. Whichever party lost would, in my view, have been entitled to ask the Court of Appeal to review the decision.

Accordingly, I grant permission to appeal on the second limb of the test for deciding whether to grant such permission.

Whilst this decision will doubtless come as a disappointment to the veterans, the grant of permission on this basis was, as I suspect they have been advised, almost inevitable.

However, the grant of permission is not intended as any encouragement to proceed with the appeal. The encouragement I gave to the parties to try to resolve this litigation without recourse to further (very costly) proceedings remains in place notwithstanding the possibility of an appeal.

I was told during the hearing on 16 June that the legal teams had agreed to a stay on any further proceedings (including any proposed appeal), with permission to apply to restore those proceedings, until September 14 to enable them to “take stock” and, as I understood them, to consider possible avenues of settlement. Doubtless that will be seen as welcome news by many interested in this case. All I can do is to express the hope that this moratorium will not be used simply for both legal teams to draw breath, re-group and recommence battle in the Autumn without any serious effort being made to address a sensible and constructive resolution to these long-standing issues. Going through the motions will not be good enough.

Unless I am told that the parties seek a different order, I will extend the Defendant’s time for filing the Notice of Appeal with the Court of Appeal until 15 September 2009 or such earlier date as may be agreed or otherwise directed.

I would ask Counsel to agree an order (effective from 19 June 2009) that gives effect to my substantive decision and the decisions made in this Ruling.