UK & Europe
Insurance & Reinsurance
Despite indications that the number of noise induced hearing loss (NIHL) claims has peaked, litigation is still ongoing in many cases, and Clyde & Co continues to achieve successful defences of these claims. Our most recent successes demonstrate the importance of clear case management, being prepared for litigation and ensuring compliance with court directions.
Both examples provide helpful guidance to defendant practitioners on challenging NIHL and claims more generally.
In our first success, the Claimant attempted to pursue a case that had not been issued within the three-year limitation period. The use of Part 18 questions at an early stage narrowed the issues around questions of knowledge regarding the date of limitation. The responses provided the basis to challenge the Claimant’s evidence and bring the claim to a conclusion by discontinuance.
In the second instance, the Claimant's solicitors demonstrated a complete disregard to compliance with directions. The Claimant had continually failed to comply with procedural deadlines, whether late or at all. This evidence prompted an application to strike the claim out, upon receipt of which, the Claimant again elected to discontinue.
The Claimant had not specified a date of knowledge for the purposes of the Limitation Act 1980 within his Particulars of Claim. Part 18 questions were sent to clarify this issue. In response, the Claimant stated he was "unsure", and unable to confirm the date of knowledge.
Subsequently in his witness statement, the Claimant suggested his date of knowledge was not until May 2016, meaning his claim (issued in April 2019) had been brought within the 3 year limitation period. However, upon receipt of the Claimant's medical records, a letter dated October 2015 was found from his solicitors to his GP. The letter requested medical records in relation to his hearing loss claim. The letter proved that the Claimant had instructed his solicitors prior to this date, and therefore pursuant to the Limitation Act 1980, the Claimant had brought his claim at least six months out of time.
Following non-committal responses from the Claimant to our requests to discontinue, we advanced further Part 18 questions to the Claimant centred on the inadequacies of his evidence. The questions were aggressive and pushed the Claimant to concede he had knowingly and falsely signed a statement of truth in his witness statement. We also confirmed that if the Claimant was going to continue with his claim and put our insurer client to further expense we would make an application to court seeking that the Claimant pay the Defendant's costs of the action pursuant to CPR 44.15(1).
Shortly after this correspondence the Claimant discontinued his claim.
This case shows the importance of obtaining medical records as soon as possible and conducting a thorough search through them once received. In many disease claims, the date of knowledge rather than a specific date of an accident or injury is relevant, and therefore it can be difficult to prove exactly when knowledge accrued for the purposes of limitation. The letter from his solicitors to his GP clearly showed the date of knowledge was more than 3 years prior to the issue of his claim.
The Claimant brought a claim for NIHL arising from his employment as a mechanic from 1989 to 1991. He alleged he was exposed to noise from work equipment and it was not possible to converse without shouting or using hand signals. He stated that hearing protection was not provided.
We had made a Part 35 request having served the same for forwarding on the Claimant’s Solicitor. The Claimant Solicitor’s failed to respond on time and/or confirm the position, despite a court order compelling a response. The replies were eventually sent with no explanation or relief from sanctions application. Subsequently, the Claimant then failed to comply with directions dealing with disclosure and also failed to serve witness evidence in line with the Court Order before then serving the same late and providing no explanation for the default.
We applied to the court seeking an order that the Claimant's claim be struck out pursuant to CPR Part 3.4(2)(c) as the Claimant had failed "to comply with a rule, practice direction or court order." In the period before the application was considered the Claimant's solicitor failed to acknowledge our application and failed to comply with further deadlines. We filed a supplemental statement with the court setting out their conduct in support of the application. Following this the Claimant discontinued resulting in excellent savings for our insurer client.
This outcome makes clear that as soon as a deadline is missed by the Claimant it is important to highlight the Claimant’s breach and be proactive in highlighting this to the Claimant’s Solicitor to rectify an early stage but if the Claimant’s Solicitors do not deal in a timely manner then the Defendant will take steps to file the appropriate applications at Court. This demonstrates to the court that the Defendant is prepared and keen to progress the litigation in contrast to the other parties. Of course, agreeing extensions where appropriate is a necessary tool of litigation, but a continual failure to comply with deadlines should not be rewarded with retrospective extensions.