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NIHL fundamental dishonesty finding

Holderness v Crossland Plastics Limited
Huddersfield County Court
1 August 2018

DWF working with Allianz Insurance has succeeded in obtaining a finding of fundamental dishonesty in a claim for noise induced hearing loss, where it emerged that the claimant had brought a similar claim seven years previously and had lied about his date of knowledge. Stephen Symington explains the background to the decision including an interesting account from the claimant about the pressure exerted on him by a claims management company to bring the second claim.

Background

In June 2011 Ray Holderness brought a claim for noise induced hearing loss. His then solicitors, Heptonstalls LLP, served a letter of claim on his previous employer Crossland Plastics Limited confirming that the claimant had entered into and signed a conditional fee agreement which would attract a success fee if the claim was successful. The employer's insurers, Allianz, denied the claim and eventually closed their file having heard nothing from the claimant for some time.

Almost seven years later, in March 2018, Allianz received a second letter of claim; this time from Slater and Gordon Legal Solutions. The letter of claim again alleged the claimant had suffered noise induced hearing loss, due to employment with four former employers, including the now defunct Crossland Plastics Limited.

However, it emerged that the claimant had already issued proceedings in the claim, in December 2017, some three months before serving the second letter of claim.

Within the issued proceedings the claimant had signed a statement of truth verifying the contents of his particulars of claim which included the assertion that the claim had been brought within three years of his date of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980. In particular, the claimant claimed he only became aware of his hearing loss in December 2014 after attending a hearing loss clinic where he was advised that his hearing loss may be due to noise exposure.

The claimant also informed his medical expert, Professor Jarrod Homer, at his examination in March 2018 that he had only been aware of a hearing problem for approximately three years (i.e. since March 2015) and that "before then, he had always considered his hearing to be 'normal' for his age, gradually getting worse".

This could not of course have been true in light of the 2011 claim which had been abandoned.

On sending a copy of the 2011 letter of claim to the claimant's new solicitors making clear the existence of the first claim, they quickly filed a notice of discontinuance. We made an application to have the notice of discontinuance set aside, to seek a finding of fundamental dishonesty against the claimant, and for an order reversing the claimant's QOCS protection.

Hearing

The hearing of the application took place before District Judge Heels at Huddersfield County Court. The claimant appeared in person, his solicitors having declined to represent him apparently once they were made aware that he had apparently lied about his date of knowledge in relation to his hearing loss and the possibility it was related to his employment.

The claimant brought with him to court a witness statement he had drafted for the hearing. He admitted making the earlier claim in 2011 but claimed that he did not think he had been fundamentally dishonest in bringing a second claim. He explained that he was enticed into making a second claim by what he described as a very persistent and dishonest claims handler who had cold-called him from the now defunct claims management company Zebra Claims.

The claimant said he had told the claims handler about the previous claim and that he was now 'timed out', but was repeatedly told by the Zebra Claims representative that given that the claim had not gone to court, nobody would ever know about the earlier claim. He claimed he was also told that if he made the claim again, he would receive around £10,000 in compensation. With this advice and enticement, the claimant eventually relented and agreed to go along with the second claim.

He was then referred to Slater and Gordon who contacted the claimant to progress the claim. At the hearing the claimant confirmed that he had read the particulars of claim, had signed the statement of truth, and that he knew it was a lie. He also accepted that he would have continued with the claim if he had not been found out.

In mitigation, the claimant said he was put under extreme pressure by the claims management company. Whilst the judge had a degree of sympathy for the claimant, the judge made clear that this did not exonerate him, noting that plenty of people are pestered by claims management companies and the claimant had continued the pretence when contacted by Slater and Gordon and admitted lying to them in order to progress his second claim.

DJ Heels found that the issue of limitation is a fundamental part of litigation and therefore the claimant's lies had gone to the heart of this claim. As such, the finding of fundamental dishonesty had to be made. The judge set aside the notice of discontinuance and overturned the claimant's QOCS protection enabling the defendant to recover its costs of the action.

Comment

In disease claims, especially where the alleged disease is a 'long-tail' disease and therefore its symptoms manifest over a long period of time, limitation is rarely a clear-cut issue.

For example, with noise induced hearing loss claims, the hearing loss is often insidious and gradual and many people consider it to be simply age-related loss when they begin to notice symptoms in their 50s, 60s or 70s. The difficulty for defendants can be pin pointing a time when the claimant knew, or ought to have known that their hearing loss had been caused by exposure to excessive noise at their former employers and proving that date is more than three years prior to the claim being issued at court.

Claims management companies are aware of the position faced by defendants and so potential claimants can be pestered multiple times by different claims management companies looking to dredge up new claims in the knowledge that defendants will have to argue the point regarding limitation.

From the claimant's witness statement, the classic 'boiler room' tactics used by Zebra Claims on this occasion became only too apparent. The claimant said he was cold-called over and over again, and was reassured that he was due compensation and that no-one would know if he just kept quiet about his previous abandoned claim. That pressure and the lure of £10,000 if he went along with the claim eventually proved too much to resist.

The claimant has taken steps to bring an action against Zebra Claims but as they are defunct he is facing an uphill battle.

The recently introduced General Data Protection Regulation (GDPR) and the new cold calling ban unless prior consent has been given as introduced by the Financial Guidance and Claims Act 2018 may reduce the number of cold calls the general public receive, and may empower the public to challenge multiple callers as to why they are being called in the first place. That being said, many solicitors wait the full three years from instructions to issuing the claim and so there could be a backlog of up to three years' worth of claims where instructions have already been taken involving undue pressures put on claimants by CMCs.

Therefore insurers, policyholders and their advisers should remain vigilant for attempts to resurrect abandoned claims and should have processes in place for checking for previously notified earlier claims by the same individuals. Defendants can make enquiries of the claimant, potentially by way of Part 18 questions, as to the exact circumstances when they were first told they could make a claim.

The opportunity of seeking a finding of fundamental dishonesty either under s57 of the Criminal Justice and Courts Act to have the entire claim dismissed or in relation to the loss of QOCS costs protection as here under CPR 44.16 does of course apply to all types of injury claims including disease claims such as for NIHL, While most reports of its deployment continue to be arising out of motor claims, disease handlers should become as familiar with its processes as their RTA colleagues.

It follows that in disease claims as well as other injury cases that it remains clear that defendants should take the opportunity to seek findings of fundamental dishonesty wherever possible as well as the enforcement of resulting costs orders. Those steps should act as not only as a deterrent to other fraudulent claimants but also sound an alarm bell to claimant law firms to review the source of the claims referral and their clients' credibility.

Contact

DWF's Stephen Symington and Lady Ruth Trippier of Deans Court Chambers were instructed by Allianz to act on behalf of the defendant. For further information please contact Stephen Symington, Associate on 0113 204 1519 or by email.

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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.

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