David Abbott v Ministry of Defence: High Court orders 60% costs in hearing loss litigation

The High Court has ordered the Ministry of Defence to pay 60 per cent of the claimants' common costs following the trial of generic issues in the long-running military noise-induced hearing loss litigation, alongside an interim payment on account exceeding £2.5 million.

In David Abbott and Others v Ministry of Defence [2026] EWHC 2083 (KB), Mr Justice Garnham, sitting with Master Brown as an assessor, determined the costs consequences of his substantive judgement handed down on 24 April 2026, which resolved six generic issues affecting many thousands of claims for noise induced hearing loss brought by current and former members of the armed forces, together with two test claims brought by Christopher Lambie and Jack Craggs.

The claimants, most of whom are represented by Hugh James Solicitors, sought an order that the Ministry of Defence pay 95 per cent of their common costs, together with a substantial payment on account. The Ministry resisted any costs order, characterising the outcome as genuinely mixed and contending that it had been the more successful party overall.

Mr Justice Garnham applied the general framework under CPR 44.2, noting the guidance in Fox v Foundation Piling that partial success on issues does not usually deprive an otherwise successful party of its costs in personal injury litigation. He also drew on the Court of Appeal's observations in Kupeli v Atlasjet on the particular difficulty of identifying an overall winner in group litigation, where the trial's purpose is to resolve issues affecting the wider cohort rather than simply to determine who pays whom between two parties.

Assessing success issue by issue, the judgement found the claimants substantially successful on the foundational technical concepts governing diagnosis, including the preferred ISO standard and approach to baseline correction, on the preferred rM-NIHL diagnostic method over the Ministry's alternative, and on the method of quantifying hearing loss. The Ministry of Defence, by contrast, succeeded on the evidential utility of military screening audiograms and defeated the claimants' case on latency, acceleration and cochlear synaptopathy, findings the judge regarded as carrying significant consequences for the cohort as a whole. Several issues, including tinnitus causation, de minimis thresholds and general damages, produced no clear winner on either side.

Particular weight was given to the ruling on loss of future earnings, tested only in Mr Lambie's case. Although neither party's primary case prevailed, Mr Justice Garnham considered the outcome overwhelmingly favourable to the Ministry given the significance of future earnings claims across the cohort. Both lead claimants ultimately recovered damages, though each with qualifications to the basis of their awards.

Having weighed these findings against the framework in CPR 46.6 for common costs in group-type litigation and the parties' Common Costs Sharing Agreement, the judge concluded that the claimants had been very largely successful on the issues requiring the greatest trial time and expenditure, while acknowledging the Ministry's significant wins on audiometry and latency.

The court ordered the Ministry of Defence to pay 60 per cent of the claimants' costs following detailed assessment. On the payment on account, after deducting sums already received and applying the 60 per cent figure to the agreed gross common costs of £9,738,983.15, the judge allowed a further 50 per cent by way of interim payment, producing a figure of £2,515,194.95.