Lord Justice Rix:
This is a ticklish question of appeal case management which arises out of test litigation called The Nottinghamshire & Derbyshire Deafness Litigation. That litigation essentially raises the issue of whether textile employers in Nottinghamshire and Derbyshire should be held liable in respect of noise induced hearing loss (“NIHL”) suffered by employees arising out of their being subjected over a long term to industrial noise in their employment at a level above 85 db (A) leq but below the long established watershed of 90 db (A) leq. Although a group litigation order (“GLO”) was contemplated as one way forward in this litigation, ultimately the parties were agreed that the matter should be dealt with by means of test cases and that those test cases should all be heard together; that the evidence adduced in one should all be admissible and cross-admissible in all the others; and that effectively, even if not totally formally, the findings and liabilities established in one case should have a bearing not only across the test cases litigated but ultimately across the hundreds if not thousands -- there is some uncertainty about the total number -- of cases which were lying behind the test cases being litigated. So ten test cases were chosen of which, I think I am right in saying, three dropped out before the actual trial began, so that at the five-week trial which was ultimately heard by HHJ Inglis seven test cases against four separate defendants were litigated.
In the case of the claimant and now appellant Miss Baker her defendant was a company which at the start of her employment at any rate (which goes all the way back to 1971) was called Simpson Wright & Lowe Limited. That company had gone through a number of mergers and amalgamations and also changes of name and ultimately by the time of trial was called Taymil Limited, and is now called Quantum Clothing Limited (“Quantum”). Other defendants were a company called Meridian, which is the current name or successor to the well-known Courtaulds Group, and also a company called Pretty Polly. There was a fourth defendant, whom I need not identify.
The judge found that the claims in all seven test cases tried before him failed. Apart from other questions and important generic issues debated before the judge, the claimants’ difficulties were in showing that at a marginal excess over 85 db (A) leq and at a time when the claimants were getting on in years it could be proved to the satisfaction of
