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Civil Justice Council proposes fixed costs regime for hearing loss claims

Proposals could bring about a more efficient system but must not restrict work required to allow lawyers to bring a claim, says APIL

6 September 2017

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Fixed costs should be extended to noise-induced hearing loss (NIHL) cases, the Civil Justice Council (CJC) has proposed as part of a series of recommendations seeking to speed up the claims process.

Following a rise in NIHL claims between 2010 and 2015, reportedly reaching over 87,000 in early 2015 (dropping to 57,000 claims by the end of the year), the government asked the CJC to set up a working party of specialists, comprising defendant and claimant lawyers, insurers, barristers, and a judge.

The group was tasked with recommending ways of resolving NIHL cases more quickly and to agree a table of fixed legal costs for such claims.

The report published by the CJC today sets out a matrix of fixed recoverable costs for various stages, pre- and post-litigation, for routine fast-track NIHL claims.

Legal fees are set at a maximum of £4,000 for one defendant pre-litigation, spread over four separate stages and with the limit increased by £500 per defendant. The recommendations exclude cases involving four or more defendants.

Post-litigation costs are divided into three categories. The maximum costs are £9,187 for one defendant and up to £12,261 where three defendants are involved.

It also recommends improvements to the pre-action process, such as requiring claimants to provide more detailed letters of claim, including an audiogram from an accredited audiologist and a schedule of employment from HM Revenue and Customs to verify a claimant’s working history.

The report has been endorsed by the Master of the Rolls, Sir Terence Etherton, who has submitted it to the Lord Chancellor, recommending that its findings be adopted as part of the wider review of fixed costs.

“These claims present with special characteristics,” said Sir Terence. “Their complexity and the importance of having a timely resolution point to their needing a specific fixed costs regime that is complementary but not identical to a more general fixed costs system as proposed by Lord Justice Jackson in his recent review.”

“The proposals we came up with will cover a significant majority of NIHL claims,” explained DAC Beachcroft Partner Andrew Parker, who is also chair of the noise-induced hearing loss claims working party and Civil Justice Council member.

“The fixed costs which we’ve put forward were agreed by all sides as a fair outcome and, together with changes we also suggested such as requiring claimants to provide more detailed letters of claim that include an audiogram from an accredited audiologist, should see a real improvement in how NIHL claims are handled.”

Brett Dixon, president of the Association of Personal Injury Lawyers, added: “A lot of work has gone into agreeing a practicable system which does not compromise access to justice for anyone with a genuine claim for noise-induced hearing loss. Fixed costs must not restrict the work a lawyer needs to carry out for an injured person’s claim to run, but fixed costs could work in a more efficient system.

“The group recommends improvements including early disclosure of audiograms and a new form for a letter of claim in the pre-issue process. These will not only cut out unnecessary work on both sides but also bring about a timely solution for the injured person.

“A key concern for APIL post-issue is that standard directions are needed across all courts nationwide, much like in mesothelioma cases, so that the way in which these cases are run can become much more predictable and will prevent costs from building up.

“The government must recognise that fixed costs are only workable if applied in conjunction with the various improvements identified by the working group.”

However, other lawyers have warned that the new costs proposals will shut members of the armed forces out of the claims process. Sinead Cartwright, partner at Hilary Meredith Solicitors, said the plans will stop service personnel from bringing six-figure NIHL claims.

“In our experience, a high proportion of NIHL cases involve retirees who have been able to obtain noise level surveys from their workplace, usually through their union, and so liability is not too much of an issue. These claims usually settle within the £10,000 to £20,000 bracket so a move towards fixed costs seems sensible. Claims on behalf of service personnel are entirely different,” she added.

“Typically, military NIHL claims involve a young man in his mid-20s who, after basic training, is deployed on several tours, usually to Iraq and Afghanistan. Having subsequently failed a hearing test they are then medically discharged from the Army and their careers are over.  They find themselves back on civvy street, often with a family to support.”

Hilary Meredith Solicitors has settled several NIHL claims over recent months for service personnel with awards ranging from £250,000 to £450,000. “These cases have generally dragged on for five years with the Ministry of Defence fighting us every step of the way,” explained Cartwright. “They involve complex legal issues and in particular the issue of combat immunity.  Disclosure is a mammoth task.

“Under the CJS’s proposals, these claims would not proceed.  Some of the most deserving claimants would be denied access to justice.  The fixed costs proposals for civilian NIHL claims  are a sensible step forward – but service personnel would be left at a dead end with nowhere to turn.”

John van der Luit-Drummond, deputy editor

john.vanderluit@solicitorsjournal.co.uk | @JvdLD

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