Abbott v Ministry of Defence: £2.5m Interim Costs Payment [2026] EWHC 2083 (KB)
Detailed Assessment — 2026-08-07
In David Abbott & Ors v Ministry of Defence [2026] EWHC 2083 (KB), the High Court ordered the Ministry of Defence to pay 60% of the claimants' costs after a trial of generic issues and two test claims. Mr Justice Garnham then ordered an interim payment of £2,515,194.95, calculated as 50% of that adjusted entitlement after £1.355 million already paid. The judgment shows how courts assess success in group litigation and why reliable costs evidence matters under CPR 44.2(8).
Overview
Date: 7 August 2026
Judge: Mr Justice Garnham, sitting with Master Brown as assessor
Court: High Court of Justice, King's Bench Division
Citation: [2026] EWHC 2083 (KB)
Case number: QB-2021-002484
Nature of Proceedings: Costs following the trial of generic issues and two test claims in military noise-induced hearing loss litigation
Key Issues:
- How success should be assessed after a trial resolving issues across a very large cohort of claims
- Whether discontinued claims and QOCS affected the appropriate costs order
- The percentage of the claimants' common costs payable by the Ministry of Defence
- The correct payment on account where the receiving parties had not produced a signed draft bill or certified costs schedule
In David Abbott & Ors v Ministry of Defence [2026] EWHC 2083 (KB), the High Court ordered the Ministry of Defence to pay 60% of the claimants' costs after a trial of generic issues and two test claims. Mr Justice Garnham then ordered an interim payment of £2,515,194.95, calculated as 50% of that adjusted entitlement after £1.355 million already paid. The judgment shows how courts assess success in group litigation and why reliable costs evidence matters under CPR 44.2(8).
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The Litigation
The underlying proceedings concerned many thousands of claims by current and former members of the armed forces for noise-induced hearing loss. The parties had agreed a matrix to deal with liability issues and had selected test cases through which questions of causation and quantum could be determined.
Although the proceedings did not operate under a formal Group Litigation Order, collective case management measures had been in place since November 2022. The parties had also entered into a Common Costs Sharing Agreement under which generic work was treated as benefiting the wider cohort.
Twenty test claims were prepared to trial standard. Six settled before trial, one settled shortly afterwards and three were discontinued. By the time of the hearing, two test claims remained for determination, those of Christopher Lambie and Jack Craggs.
The scale of the work was exceptional. The hearing lasted a little over nine weeks, 13 experts gave evidence, the parties' written closing submissions ran to 429 and 446 pages respectively, and oral closing submissions occupied five days. The substantive judgment on the generic issues and test claims was handed down on 24 April 2026.
The costs hearing concerned the claimants' common costs of the generic issues and the two remaining test cases. The claimants sought 95% of those costs. The Ministry of Defence argued that the result was genuinely mixed, that it had been the more successful party and that there should be no order as to costs.
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Identifying Success in Test and Group Litigation
The Relevant Approach
The court began with CPR 44.2. The usual starting point is that the unsuccessful party pays the successful party's costs, but the court must consider all the circumstances, including partial success, conduct and admissible offers.
The judge regarded CPR 46.6, which deals with costs under a Group Litigation Order, as instructive even though no formal GLO had been made. He also relied on the Court of Appeal's guidance in Kupeli v Atlasjet [2018] 3 Costs LR 555. In group litigation, the direction in which money passes is not necessarily a reliable measure of success. The court must consider the issues determined and the effect of those determinations on the remaining claims.
The judge therefore assessed three matters:
1. The conclusions reached on each generic issue.
2. The practical effect of those conclusions on the wider cohort.
3. Success in the two lead claims and the relevance of those decisions to the cohort.
He also looked beyond the parties' final positions. Their cases had moved during the hearing, and the costs incurred had partly been driven by the positions advanced at the outset.
The Claimants' Major Successes
The claimants were substantially successful on three issues which the judge regarded as having the greatest impact across the cohort:
- The foundational concepts used in diagnosis and quantification.
- The preferred diagnostic method for military noise-induced hearing loss.
- The proper method of quantification.
The court accepted the claimants' preferred diagnostic method, subject to an important qualification that other proposed methods could not be used where the claimants' chosen test was not met. It also preferred the claimants' method of quantification, although aspects of the Ministry of Defence's case were accepted as to how that method should be applied.
Both remaining test claimants recovered damages. The Ministry of Defence had made no Part 36 or Calderbank offer in those claims. Had they been ordinary individual claims, the judge considered that each claimant would have received his costs in the usual way, despite not succeeding on every issue.
The Ministry of Defence's Successes
The Ministry of Defence achieved substantial success on other questions. These included the use of military audiograms, latency and acceleration, cochlear synaptopathy, and the implications of the future loss of earnings decision.
The ruling on future loss of earnings was particularly important. The court rejected both Mr Lambie's primary case based on the Ogden Tables and the Ministry of Defence's primary case that there should be no award. It made a more modest award for loss of earning capacity. Although neither side won the point outright, the judge regarded the outcome as overwhelmingly positive for the Ministry of Defence across the wider cohort because future earnings could otherwise have been the largest head of loss in a sizeable proportion of claims.
The judge also considered two lead cases which had been discontinued during the trial and the possibility that the substantive judgment might cause further claimants to discontinue. The latter factor did not justify a significant reduction, but it made the court more cautious.
The Result: 60% of the Claimants' Costs
The court rejected both extremes advanced by the parties. The claimants were not entitled to the 95% sought, but the mixed outcome did not justify making no order.
At paragraph 68, the judge concluded:
> "Viewing this matter in the round, I conclude that the Claimants were very largely successful on the major issues in the case, the issues that attracted most attention and required most work in the trial, namely the foundational concepts, the diagnostic method and the quantification method. In addition, they won damages in the two test cases."
The resulting order was that the Ministry of Defence should pay 60% of the claimants' costs, subject to detailed assessment.
The decision shows why simply counting issues can be misleading. The court weighed their relative significance, the work they generated, their consequences for the wider cohort and the actual outcomes in the test claims.
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QOCS and the Discontinued Claims
The Ministry of Defence raised the effect of discontinued claims within the cohort. The court distinguished between taking discontinuance into account when exercising the general costs discretion and permitting the defendant to enforce or set off its costs in the discontinued proceedings.
At paragraph 20, the judge said:
> "There is no doubt that I can take into account the fact that some of the claims have been discontinued as a factor relevant to the assessment of the Claimants’ costs. But, in my view, the effect of the Supreme Court’s decision in Ho v Adelekun [2021] UKSC 43 is that, in respect of cases issued before 6 April 2023, QOCS applies and, absent proof of fundamental dishonesty, the defendants cannot by way of set-off recover their costs relating to the discontinued proceedings."
Discontinuance therefore remained relevant to the overall percentage order, but it did not produce a recoverable set-off against the pre-6 April 2023 claims identified by the judge. The distinction matters. A factor may reduce a receiving party's entitlement under CPR 44.2 without creating a separate enforceable costs liability in the paying party's favour.
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The Interim Payment on Account
An Interim Payment, Not an Assessment of the Costs
Once the court ordered a detailed assessment, CPR 44.2(8) required a reasonable payment on account unless there was good reason not to make one. The judge found no such reason.
The interim award did not determine what the claimants' costs would ultimately be on detailed assessment. The court had to estimate a sum safely below the likely assessed recovery while allowing a margin for error.
That exercise was complicated by the evidence placed before the court. The claimants asserted gross common costs of £9,738,983.15, but had not supplied a signed draft bill, certified statement of costs or certified schedule. Mr Justice Garnham recorded the difficulty at paragraph 75:
> "A difficulty I and Master Brown have faced in this case, despite our raising the matter during the hearing, is the absence of a signed draft bill or a certified statement of costs or a certified schedule of costs. I have real concerns about the costings we have received generally but particularly as regards the hourly rates claimed, the total number of hours claimed, the seniority of the solicitor engaged on some of the tasks involved, the appropriateness of the levels of delegation adopted and the disbursements."
Those concerns were not findings on detailed assessment. They were reasons for caution when estimating the likely recovery and deciding how much could safely be paid immediately.
The Calculation
The court's calculation was:
| Step | Amount |
|---|---:|
| Gross common costs asserted by the claimants | £9,738,983.15 |
| Less sums already paid on account | £1,355,000.00 |
| Net common costs figure | £8,383,983.15 |
| 60% costs entitlement | £5,030,389.89 |
| Interim payment at 50% | £2,515,194.95 |
The 50% figure is not a general benchmark for payments on account. It was the court's cautious estimate on the evidence in this case. The judge considered the decade-long history, the length and complexity of the trial, the volume of work, the possible overall value of the litigation and the very large number of service personnel who might be affected. He also noted that the Ministry of Defence would be able to satisfy the final liability and that the claimants could seek a further interim costs certificate if appropriate.
There was some inconsistency in the claimants' figures recorded in the judgment. Paragraph 3 stated that they sought a payment on account of £6,013,822.09, while the calculation set out at paragraph 73 produced £5,133,072.09. The judge expressly invited further submissions on the mathematics if the figures in his final calculation were not agreed. Practitioners should therefore treat the worked calculation at paragraph 79 as the basis of the court's interim award, subject to the final order.
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Practical Implications
For Costs Lawyers
1. Prepare reliable evidence for the interim payment hearing. A signed draft bill, certified statement or certified schedule gives the court a firmer basis for estimating likely recovery. Its absence can lead to a more cautious award even in litigation of exceptional scale.
2. Expect scrutiny of rates, hours and delegation. The judge identified hourly rates, total hours, fee-earner seniority, delegation and disbursements as matters of concern. A schedule intended to support a substantial payment on account should explain these features rather than present only a global total.
3. Separate the percentage costs order from the interim-payment percentage. The claimants obtained 60% of their costs. The court then awarded 50% of that adjusted entitlement on account. The two percentages perform different functions and should not be conflated.
4. Account clearly for previous payments. The £1.355 million already paid was deducted before the 60% order and the 50% interim factor were applied. The sequence can materially affect the outcome.
5. Verify every stage of the arithmetic. The different figures recorded for the claimants' requested payment, and the invitation for further submissions, underline the need for a short reconciliation showing the gross costs, any earlier payments, the costs percentage and the proposed interim percentage.
For Litigation Practitioners
1. Success in test litigation is qualitative, not numerical. The court will consider the importance of each issue, the work it generated and its effect on the wider cohort. Winning more issues does not necessarily make a party the overall winner.
2. Opening positions may affect the costs analysis. A late concession or narrowed closing case does not erase the expense caused by the position maintained earlier in the litigation.
3. Offers remain important in test cases. Both remaining claimants recovered damages and the defendant had made no Part 36 or Calderbank offer. A well-judged offer may protect a party even where the generic issues produce a mixed result.
4. Discontinuance and QOCS must be analysed separately. Discontinued claims may influence the discretionary percentage order, but that does not automatically permit enforcement or set-off of the defendant's costs. The issue date and applicable QOCS regime require careful attention.
5. A further interim payment may be available. Where the paying party is good for the money and the detailed assessment will take time, an initial cautious award need not be the final payment before assessment.
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Conclusion
Abbott v Ministry of Defence is a useful costs decision for any large group, test-case or common-issues litigation. It confirms that the court must evaluate success across the litigation as a whole, with particular attention to the practical effect of each ruling on the wider cohort. On that assessment, the claimants' major successes justified recovery, but the defendant's substantial successes and the discontinued claims reduced the order to 60%.
The payment-on-account ruling carries an equally practical lesson. Even where the receiving parties have incurred costs approaching £10 million and have secured a substantial costs order, the court still needs dependable material from which to estimate likely recovery. The absence of a signed or certified costs document, coupled with concerns about rates, hours, delegation and disbursements, led the court to adopt a cautious figure of £2,515,194.95 pending detailed assessment.
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Citation: David Abbott and Others v Ministry of Defence [2026] EWHC 2083 (KB)
Full judgment available at: The National Archives
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