"Heard it through the grapevine: A look at the new proposals for fixed recoverable costs in noise induced hearing loss claims"

Thu, 03 Aug 2017

On 31 July 2017 Lord Justice Jackson published his supplemental report in his review on civil litigation costs, focusing on extending fixed recoverable costs to all fast track claims and lower end multi track claims. Industrial disease claims were specifically excluded from the first tranche of fixed recoverable costs so it was inevitable that proposals to include them would be in the supplemental report. Appendix 11 of the report contains the draft proposals from the noise induced hearing loss (“NIHL”) working party, made up of representatives from the claimant and defendant lobbies, and which Jackson LJ endorsed with comments in Chapter 5 of the main report.

Unsurprisingly, the proposals fix costs at both the pre- and post-litigation stage. The fixed amounts will be increased by a percentage for additional defendants (up to three).

The proposal in Appendix 11 is that the claims will leave fixed costs if the defendant raises causation as an issue, by either requesting another audiogram or its own medical evidence. Although, based on current practice, this would apply to almost every NIHL claim, there are currently parallel proposals under consultation for a more streamlined system which would mean the claimant was initially assessed by an agreed audiologist for NIHL.

From a claimant’s perspective, it is reassuring that it is recognised that the added complexity of NIHL claims requires greater input from counsel, such that counsel’s fees can be recovered on a disbursement basis “if justified”. And no doubt all counsel (the writer included) will be reassured that insurers agree that the fast track trial fee should be increased from current levels to reflect the additional work required in preparation.

There is not yet agreement on the utility of ordering limitation to be tried as a preliminary issue, noting that regional courts take a differing approach to this, but the current proposal is that the defendant would have to “show cause” in its directions questionnaire if it wanted to proceed down that road. Jackson LJ himself is not in favour of preliminary issue trials in fast track claims.

In summary, some further work is obviously required, not least to reflect the difficulties created when causation is challenged and a second medical expert is involved. However, it is reassuring that there is recognition that the added complexity of NIHL claims requires a bespoke approach to fixed costs.

The full report can be viewed here: https://www.judiciary.gov.uk/publications/review-of-civil-litigation-costs-supplemental-report-fixed-recoverable-costs/

Jack Feeny
August 2017

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