Noise induced hearing loss claims: New fixed recoverable costs process to be introduced

As part of their wide-ranging response to the consultation of extending fixed recoverable costs (FRC) in England and Wales, the Government has confirmed that a new process and separate grid of FRC for NIHL claims in the fast track valued below £25,000 in damages will be introduced.  

In terms of next steps, the Government will “need to engage with the Civil Procedure Rule Committee on the detail of implementation.”

This extension to FRC for NIHL clims was originally recommended by both Sir Rupert Jackson in his 2017 report, and the Civil Justice Council’s working group. Those proposals were then consulted on by the Government in 2019.  This response is now available.

On the extent of these reforms, the Government confirmed that “a minority of complex NIHL cases (such as test cases) are likely to be allocated to the multi-track for complexity and will therefore fall outside the FRC regime.”  The CJC report set out those case likely to be identified as ‘complex NIHL cases’ such as military claims and claims with more than three defendants. Similarly, those claims with defendant’s responses alleging de minimis hearing loss, seeking additional audiograms or medical evidence, and test cases will also be excluded.

Improving the process for NIHL claims

The Government has confirmed that “certain mandatory actions to be taken by both claimants and defendants in letters of claim and response, as well as the proposed accompaniments to letters of claim,” will be implemented.

The Government also agreed with the proposals of the CJC for the introduction of standard directions.  However, rather than set these out, the Government stated that this should be a matter for an industry working group, “with consideration being given to examples adopted by DJs in the county court as an initial starting point.”

On the issue of preliminary trials, it was acknowledged that “there may be scope for preliminary trials to assist in deciding issues in dispute”. However, such hearings should only be encouraged where they serve that purpose, and “should otherwise be discouraged where they would be superfluous.”

Responses

Multiple respondents agreed that introducing FRC to NIHL claims would bring more certainty to the overall costs of civil litigation and introduce more proportionality. However, some respondents, whilst recognising the benefits of controlling costs, stated that NIHL claims require more work than other PI claims, and the FRC rates should be set to account for all the necessary work.

The proposed standard directions were identified by some respondents as too prescriptive with the consequence of increased court time and costs. However, others welcomed the proposals as having the effect of streamlining the NIHL claims process. The proposal by Government for the industry to establish a working group may narrow those issues between the respondents.

In addition, there was consensus across both claimant and defendant respondents that the creation of an independent audiologist accreditation scheme should be considered, as “this would help to cut down on abuse or the falsification of audiologists’ reports.” However, the Government response indicates no intention to pursue such a process at this time, with the need to create a fully designed scheme likely to “increase both court time and costs”.

2017 proposed schedules

Whilst the Government response does not address the specific of the costs to be applied, it is worth reiterating the proposed matrix from the CJC working party report on the likely costs applicable.  The proposals confirmed that certain issues such as trial advocacy fees, pre-action disclosure application and fees to restore dissolved companies would remain outside of the matri.

Pre-litigation costs

Post-litigation costs