David Abbott & Ors v Ministry of Defence

In complex group litigation, costs must be assessed by looking at the litigation as a whole, not simply by asking which party received money or won individual issues. The court should consider success on generic issues, their consequences for the wider cohort, the outcomes and significance of test cases, and relevant conduct or discontinuance. The general rule in the Civil Procedure Rules 1998, r 44.2 remains that the unsuccessful party pays the successful party, but the court may make a different order. Partial success does not ordinarily deprive a successful personal-injury party of costs. The claimants recovered 60% of their costs, with an interim payment of 50% of the net figure.

This was an application for costs following a nine-week trial of generic issues in a large cohort of military noise-induced hearing loss claims and two test claims. The claimants sought 95% of their common costs and a payment on account. The defendant argued that the outcome was genuinely mixed and that there should be no order as to costs. The court had already determined issues including audiometry, diagnosis, quantification, latency, cochlear synaptopathy, tinnitus, de minimis loss, damages and future earnings. The central questions were how success should be measured in group litigation and what costs and interim payment order was appropriate.

The costs application was granted in part. The defendant was ordered to pay 60% of the claimants’ costs of the generic issues and the two test cases, subject to detailed assessment.

1. Governing approach. The starting point under the Civil Procedure Rules 1998, r 44.2 was that the unsuccessful party pays the successful party, but the court retained a wide discretion to consider all the circumstances and make a different order. Applying Kupeli v Atlasjet [2018] 3 Costs LR 555, the court assessed success by looking at the litigation as a whole. In group litigation, the flow of money in lead claims may not reflect success because generic issues may determine or materially assist the resolution of the wider cohort.
2. Relative success. The claimants were very largely successful on the foundational concepts, diagnostic method and quantification method, which were the major issues in the trial. The defendant succeeded on the use of military audiograms, latency, acceleration, cochlear synaptopathy and, to a substantial extent, future earnings. Both lead claimants recovered damages, although one case had only modest significance for the cohort. Following Fox v Foundation Piling [2011] EWCA Civ 790, partial success on individual issues did not ordinarily deprive successful claimants of costs.
3. Discontinuance and conduct. Discontinuance was a relevant factor in the costs discretion. For claims issued before 6 April 2023, the effect of Ho v Adelekun [2021] UKSC 43 was that QOCS applied and, absent fundamental dishonesty, the defendant could not recover costs of discontinued proceedings by set-off. The court found no impropriety requiring a further costs penalty.
4. Interim payment. Under r 44.2(8), a payment on account was required because detailed assessment had been ordered and there was no good reason to refuse one. After deducting £1,355,000 from the claimed common costs of £9,738,983.15, 60% produced £5,030,389.89. The court ordered an interim payment of 50% of that sum, namely £2,515,194.95, and invited submissions on the final order.

The judgment records an earlier High Court judgment on the generic issues, but no appellate history is stated.