Claimant loses QOCS protection following discontinuance of NIHL claim
Acierno v Robinson Plc & Anor
Derby County Court – Deputy District Judge Maybury
12 May 2016
It is not uncommon for noise induced hearing loss claims to be issued without medical evidence and we have on a number of occasions successfully applied to have claims struck out for failing to comply with the CPR. In this recent decision not only was the claim struck out, but as this was a post-LASPO case, the claimant automatically lost his QOCS protection. Because the strike out application did not have to involve considerations of fundamental dishonesty, the insurer was in an improved position as there was no need to seek the court’s permission to set aside QOCS protection to be able to enforce the costs order. Sarah Stutchfield who acted for the defendant explains the decision.
The letter of claim in this noise induced hearing loss case was dated 17 March 2015. Proceedings were issued on 22 August 2015 but not served until 17 December 2015. No medical evidence was served with the particulars of claim but the claimant's solicitors served a screening audiogram which had been conducted on 7 October 2015.
In the nine month period between the letter of claim and the proceedings being served, the claimant’s solicitors had been afforded ample opportunity to obtain medical evidence in support of their client's claim. However no reasonable explanation for the delay was forthcoming.
In January 2016, the defendant applied to strike out the claimant’s claim under CPR r.3.4(2)(c) in light of the failure to any serve medical evidence in support of his claim pursuant to paragraph 4.3 of the Practice Direction 16.
The defendant argued that the claimant's October audiogram did not constitute a medical report as it did not comply with CPR r.35.10 and the requirements set out in Practice Direction 35.
It was further submitted that the claimant's audiogram did not satisfy the criteria of Coles Lutman & Buffin and there was significant asymmetry at 3kHz and 4kHz of 50dB and 35dB respectively which, we argued, was not indicative of noise induced hearing loss. Moreover, based on this audiogram, the claimant's binaural hearing loss was less than his likely age associated hearing loss. Therefore, it was averred that the claimant had suffered no additional loss.
In the event the strike out application was successful, we also sought to recover the defendant’s costs of the entire claim. Although the claimant had the benefit of QOCS protection, we argued that the case satisfied the grounds set out in CPR r.44.15 so that the claimant should automatically lose the protection: serving the proceedings without the requisite medical report meant that:
the claimant disclosed no reasonable grounds for bringing the proceedings; and/or
the proceedings constituted an abuse of process; and/or
the conduct of the claimant's legal representative was likely to obstruct the just disposal of the proceedings.
The hearing of the application was due to take place on 23 March 2016, but in February the claimant’s solicitors purported to serve a notice of discontinuance and over the phone persuaded the court staff to vacate the hearing on the basis that the claim had been discontinued.
We advised the court that a hearing was in fact still required to determine the costs of the application, and made an application to set aside the claimant's notice of discontinuance pursuant to CPR r.38.4(1). We also sought an order for the claimant to pay the costs of the entire claim.
The court deemed that the notice of discontinuance had not been effectively served. It had been sent by email, even though DWF LLP does not accept service by email as stated on its letterhead. Consequently, the judge did not need to hear the application to set aside the notice of discontinuance.
He went on to strike out the claimant’s claim as requested in the defendant's original application, on the basis that the proceedings disclosed no reasonable grounds for bringing the claim, and made a costs order in favour of the defendant. The striking out of the claim on the basis of these grounds meant that the claimant automatically lost QOCS protection, without the judge having to decide whether or not that was appropriate as would have been required if he had made a finding of fundamental dishonesty.
The order can be enforced to the full extent, notwithstanding that the claimant has received no damages.
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.