March 13, 2019

Part 35 questions: Expert’s silence leads to strike out of hearing loss claim

A Claimant's hearing loss claim was struck out when their solicitors failed to adequately explain why their medical expert had not responded to Part 35 Questions.

The case highlights that procedural deficiencies which prejudice the other side and impact the court timetable will not be tolerated by courts.

Background

The Claimant advanced a claim for hearing loss during his employment by three defendants spanning a period of 31 years.

We were instructed to represent the First Defendant who employed the Claimant as a Labourer/Foreman from 1969 to 1978.

Liability was denied on the basis the Claimant had used noisy tools, but not for a significant amount of time per shift (and not every shift).

We also obtained audiogram evidence which suggested that there were several issues regarding causation.

Part 35 Questions

We sought permission to serve Part 35 Questions on the Claimant's expert in agreement with our Co-Defendants. These were served on the expert and a response requested by a specific date. The deadline for a response passed, with no request for an extension from the Claimant.

The Defendants agreed to make an Application seeking an Unless Order compelling the Claimant's expert to respond to the Part 35 Questions.

The Application was made in November 2018 and the hearing listed for 31 January 2019. We received no confirmation of reply from the Claimant or the Part 35 Replies in response to our Application until 30 January 2019, when we received a statement from the Claimant's Solicitors. The statement did not provide an explanation for the failure of the expert to respond to the Part 35 Questions.

Based on the content of the statement, an oral Application was made by Counsel at the hearing to strike out the claim.

We argued that if the Claimant was unable to rely upon the expert’s evidence then the claim should be struck out, as the Claimant had no evidence to establish liability and causation.

Outcome

The Judge agreed with the oral Application and struck out the Claimant's claims. 

The Claimant was refused permission to rely upon the expert's report due to the failure to respond to Part 35 Questions. As the Claimant had no evidence to support their claim, the claim was struck out summarily.

The Judge was critical of the Claimant’s solicitors' conduct, highlighting the following issues:

  1. Failing to make any application from relief from sanctions.
  2. Failing to deal with the issues raised in the Application, which adversely impacted the Court timetable.
  3. Continuing to issue correspondence to the Defendants after the Application was made, but failing to deal with the outstanding issues of the Part 35 questions.
  4. Failing to provide any substantive response to the Application until the day before the hearing.
  5. When the response was provide, the statement supplied by the Claimant's solicitors was vague and lacking in detail.
  6. The Part 35 replies had still not been provided by the date of the hearing.

Following the dismissal of the claim, we made a further application that QOCS be disapplied and the Claimant pay the Defendant's costs pursuant to rule 44.15 of the CPR. The Judge agreed.

What can we learn?

  • It is not uncommon for opposing solicitors to take a deliberate approach in some claims by failing to respond to certain pieces of correspondence. However, the actions of the Claimant's solicitors in failing to address the outstanding Part 35 Questions and Application, but responding to other correspondence, perhaps suggested a deliberate course of action on their part.
  • This Claimant's solicitors' actions affected the Court timetable, wasting not only the parties' time, but also that of the Court. Moreover, when a statement was filed in response to the Application, it did not address the issues raised by the Application. The Judge was highly critical of these deficiencies.
  • This outcome also shows the benefits of oral applications when a party is in receipt of new evidence, taking advantage of the existing hearing time. Had the oral application not been made, it is likely that the initial Unless Order as sought would have been granted, potentially allowing the Claimant's solicitors to address their failures and resume the claim, resulting in additional time and costs.
  • This decision may prompt some claimant solicitors to reconsider their approach, as not only did their failure to address the Part 35 Questions result in a strike out, but also the disapplication of QOCS. Furthermore, as there was no indication the Claimant was not providing instructions, it is not unreasonable to consider that there were conduct issues for the solicitors to address.

Article authored by Judith Martin, Partner, and Matthew Archibald, Litigation Executive.