Durrheim & Ors v Ministry of Defence

An appellate court should interfere with a case-management decision only where the lower court was wrong in principle or the decision was outside the range of reasonable discretion. Claims may share a legal issue without being suitable for common management where their outcomes depend on materially different facts. In service-related negligence claims, the scope of combat immunity and the existence or standard of a duty of care may require individual factual assessment. The overriding objective requires consideration of proportionality, delay, funding and the practical effect on claimants, but alleged cost savings must be supported by evidence. Transfer to the High Court is not justified merely because central management would be more convenient for a government defendant.

The Ministry of Defence appealed against a decision of Senior Master Whitaker dismissing an application under section 41 of the County Courts Act 1984. The application sought transfer to the High Court of personal injury claims by serving and former personnel alleging noise-induced hearing loss from combat, training and military equipment, together with common case management and possible lead or test cases.

The proposed claims involved differing weapons, equipment, locations, exposure circumstances, limitation issues and alleged failures. The central questions were whether the claims raised sufficiently common issues of law or fact for transfer and test-case management, and whether the Senior Master had properly applied the guidance in Smith v Ministry of Defence and the relevant procedural criteria.

1. Appeal dismissed. The decision was a case-management decision involving the exercise of discretion. The appellant therefore faced a high threshold, and the court would interfere only if the decision was wrong in principle or otherwise outside the proper scope of discretion, applying Mannion v Ginty [2012] EWCA Civ 1667.
2. The Senior Master correctly understood Smith v Ministry of Defence [2013] UKSC 41. The majority guidance was that combat immunity should be narrowly construed and generally confined to active operations against the enemy. Questions concerning training, equipment and procurement, and whether a duty of care was fair, just and reasonable, remained materially dependent on the circumstances and evidence in each case.
3. The Senior Master applied the correct approach to commonality. The claims shared a general allegation of noise-induced hearing loss, but the relevant weapons, protective equipment, locations, training and operational conditions differed substantially. A test case would therefore have limited utility in determining exposure, breach and causation for other claimants. The possibility of different outcomes on different facts did not amount to inconsistent application of the law.
4. The Senior Master was entitled to take delay and funding difficulties into account under the overriding objective in CPR 1.1. The Ministry’s asserted savings from common disclosure and expert evidence were insufficiently supported. Medical and employment evidence would be individual, while engineering or acoustic evidence would require individual assessment even if it had a generic core.
5. The Senior Master had considered the relevant transfer criteria in CPR Part 30, including complexity, public interest and location. He was not required to set out each criterion expressly. The location of the Ministry and its lawyers did not outweigh the claimants’ entitlement to local, proportionate and reasonably prompt justice. The Attorney-General’s note would not have altered that balancing exercise.

• High Court (Queen's Bench Division): appeal from the judgment of Senior Master Whitaker dated 6 December 2013; appeal dismissed.