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Claimant loses QOCS protection following discontinuance of NIHL claim

Acierno v Robinson Plc & Anor
Derby County Court – Deputy District Judge Maybury
12 May 2016

It is not uncommon for noise induced hearing loss claims to be issued without medical evidence and we have on a number of occasions successfully applied to have claims struck out for failing to comply with the CPR. In this recent decision not only was the claim struck out, but as this was a post-LASPO case, the claimant automatically lost his QOCS protection. Because the strike out application did not have to involve considerations of fundamental dishonesty, the insurer was in an improved position as there was no need to seek the court’s permission to set aside QOCS protection to be able to enforce the costs order. Sarah Stutchfield who acted for the defendant explains the decision.

Background

The letter of claim in this noise induced hearing loss case was dated 17 March 2015.  Proceedings were issued on 22 August 2015 but not served until 17 December 2015.  No medical evidence was served with the particulars of claim but the claimant's solicitors served a screening audiogram which had been conducted on 7 October 2015.

In the nine month period between the letter of claim and the proceedings being served, the claimant’s solicitors had been afforded ample opportunity to obtain medical evidence in support of their client's claim. However no reasonable explanation for the delay was forthcoming.

In January 2016, the defendant applied to strike out the claimant’s claim under CPR r.3.4(2)(c) in light of the failure to any serve medical evidence in support of his claim pursuant to paragraph 4.3 of the Practice Direction 16. 

The defendant argued that the claimant's October audiogram did not constitute a medical report as it did not comply with CPR r.35.10 and the requirements set out in Practice Direction 35.

It was further submitted that the claimant's audiogram did not satisfy the criteria of Coles Lutman & Buffin and there was significant asymmetry at 3kHz and 4kHz of 50dB and 35dB respectively which, we argued, was not indicative of noise induced hearing loss.  Moreover, based on this audiogram, the claimant's binaural hearing loss was less than his likely age associated hearing loss.  Therefore, it was averred that the claimant had suffered no additional loss.

In the event the strike out application was successful, we also sought to recover the defendant’s costs of the entire claim. Although the claimant had the benefit of QOCS protection, we argued that the case satisfied the grounds set out in CPR r.44.15 so that the claimant should automatically lose the protection: serving the proceedings without the requisite medical report meant that:

  • the claimant disclosed no reasonable grounds for bringing the proceedings; and/or

  • the proceedings constituted an abuse of process; and/or

  • the conduct of the claimant's legal representative was likely to obstruct the just disposal of the proceedings.

The hearing of the application was due to take place on 23 March 2016, but in February the claimant’s solicitors purported to serve a notice of discontinuance and over the phone persuaded the court staff to vacate the hearing on the basis that the claim had been discontinued.

We advised the court that a hearing was in fact still required to determine the costs of the application, and made an application to set aside the claimant's notice of discontinuance pursuant to CPR r.38.4(1). We also sought an order for the claimant to pay the costs of the entire claim. 

Findings

The court deemed that the notice of discontinuance had not been effectively served. It had been sent by email, even though DWF LLP does not accept service by email as stated on its letterhead.  Consequently, the judge did not need to hear the application to set aside the notice of discontinuance.

He went on to strike out the claimant’s claim as requested in the defendant's original application, on the basis that the proceedings disclosed no reasonable grounds for bringing the claim, and made a costs order in favour of the defendant. The striking out of the claim on the basis of these grounds meant that the claimant automatically lost QOCS protection, without the judge having to decide whether or not that was appropriate as would have been required if he had made a finding of fundamental dishonesty.

The order can be enforced to the full extent, notwithstanding that the claimant has received no damages. 

Comment

DWF has made a number of successful applications to strike out NIHL claims for failures to comply with the CPR and Sarah Stutchfield has previously written about another of her own successes here.

The difference between the two cases is that the earlier case was a pre-LASPO one, and the defendant was automatically entitled to recover its costs following the strike out.

As time moves on we are now seeing fewer pre-LASPO claims, and claimants proceeding post-LASPO generally have the benefit of QOCS protection so that even if they discontinue their claims, defendants are unable to recover any costs.

This case therefore highlights the importance of continuing to take a robust stance and applying to strike out a claim for significant breaches of the CPR, such as here, for a failure to serve medical evidence. A defendant may then be able to argue that the case falls into the QOCS exceptions set out in CPR r.44.15, namely that:

  • The claimant has disclosed no reasonable grounds for bringing the proceedings; or

  • The proceedings are an abuse of the court’s process; or

  • The claimant’s conduct or that of his lawyers is likely to obstruct the just disposal of the proceedings.

The benefit of a case falling within this particular rule is that the court’s permission is not required for the defendant to enforce the costs order to the full extent. If a case is struck out so that CPR r.44.15 applies then the position as to enforcement of costs is the same as it would have been in a pre-LASPO claim as the claimant will automatically have a liability to pay defence costs.

This is to be compared with those post-LASPO cases where fundamental dishonesty is established, where the court’s permission to enforce is required (CPR r.44.16), and of course any decision will already have involved a determination of the issue of fundamental dishonesty. It follows therefore that while it is worthwhile insurers raising fundamental dishonesty in this type of claim, there is a more direct route to the same outcome if the claim can be struck out so that CPR r.44.15 applies instead.

Contact

For further information please contact Sarah Stutchfield, Associate on 0161 604 1929 or at sarah.stutchfield@dwf.law

By Sarah Stutchfield

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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