The Health and Safety Executive (HSE) has recently published statistics relating to work related stress which shows that this is still one of the top causes of sickness absence in the UK.[i]

More widely, the HSE revealed that for the year 2015/16:

• 1.3 million working people suffering from a work-related illness
• 2,515 mesothelioma deaths due to past asbestos exposures (2014)
• 144 workers killed at work
• 72,702 other injuries to employees reported under RIDDOR
• 621,000 injuries occurred at work according to the Labour Force Survey
• 30.4 million working days lost due to work-related illness and workplace injury
• £14.1 billion estimated cost of injuries and ill health from current working conditions (2014/15)

According to the Labour Force Survey (LFS), reported by the HSE, the total number of cases of work related stress, depression or anxiety in 2015/16 was 488,000 cases, a prevalence rate of 1510 per 100,000 workers. The number of new cases was 224,000, an incidence rate of 690 per 100,000 workers. The total number of working days lost due to this condition in 2015/16 was 11.7 million days. This equated to an average of 23.9 days lost per case. Working days lost per worker showed a generally downward trend up to around 2009/10; since then the rate has been broadly flat.

The statistics also showed prevalence according to industry with stress being more likely in the public service industries, such as education; health and social care and public administration and defence. By occupation, jobs that are common across public service industries (such as healthcare workers; teaching professionals; business, media and public service professionals) show higher levels of stress as compared to all jobs.

The main work factors cited by respondents as causing work related stress, depression or anxiety were workload pressures, including tight deadlines and too much responsibility and a lack of managerial support. The general practitioners network (THOR-GP 2012-2014) identified an analysis of work related mental ill health cases by precipitating events and diagnosis. They concluded that workload pressures were the predominant factor, in agreement with the LFS, with interpersonal relationships at work and changes at work significant factors also.

These statistics show that work related stress, depression and anxiety, continue to represent a significant ill health condition in the workforce of the UK with it accounting for 37% of work related ill health and 45% of days lost, in 2015/2016.

We have reported frequently on the new format bill of costs in BC Disease News, most recently in edition 158 where we noted that Practice Direction 51L had been amended so that the voluntary pilot of the new format would be extended for a year with a view to it becoming mandatory for all work done after 1 October 2017.

The ‘new bill of costs’ includes the bill of costs contained in Precedent AB annexed to PD 51L in a ‘pdf’ version together with an electronic spreadsheet version of the same bill in the form provided in paragraph 1.4 of that PD.

The Association of Costs Lawyers (ACL) has recently carried out a survey amongst lawyers to gage the professions response to the new electronic format of the bill of costs and the results are clear – the new format has been met with apathy. Notwithstanding the fact that all references to the J-Codes have been removed, the survey showed that 117 members of ACL still found the new format was not needed.

A further 28% said it would make things worse, 9% said they were getting used to the new bill and 34% predicted that solicitors simply would not change. A majority, 57%, of those surveyed said they felt that October 2017 was too soon for the new format to become compulsory.

As a result of these findings, the ACL has created its own version of the bill to introduce to lawyers and judges to the potential of an Excel based form. It claims that its bill of costs takes into account comments made about the pilot by ACL members and the wider profession and as such is intended to be more flexible than precedent AB.

ACL chairman Iain Stark stated:

‘With such a focus on modernising civil justice, some form of electronic bill of costs is inevitable. Done properly, it can offer significant benefits to parties, judges and lawyers alike’. 

This week, a threat of legal action from The Association of Personal Injury Lawyers (APIL) has forced the Lord Chancellor, Liz Truss, to finally announce the result of the long awaited review of the discount rate for personal injury claims.

The Ogden Tables, currently in its 7^th edition, are used to calculate lump sum damages for future losses in personal injury and fatal accident cases. The methodology is long-established whereby multipliers are applied to the present day value of a future annual loss with the aim of producing a lump sum equivalent to the capitalised value of the future losses. This calculation must take into account other factors such as mortality risks and in relation to claims for loss of earnings and pension, discounts for contingencies other than mortality. It must also take into account the interest that the claimant could earn should he invest the damages he receives and this is known as the discount rate. The introduction of the Ogden Tables, sets out nicely the purpose of the history of the discount rate in its introduction which is written by Robin de Wilde QC. It states:

‘This methodology was endorsed by the House of Lords in the famous case of Wells v Wells [1999] 1 AC 345. In that case the Court determined that the discount rate should be based on the yields on Index Linked Government Stock. The discount rate is now fixed by the Lord Chancellor of the day pursuant to his powers under the Damages Act 1996. The above method was further endorsed by Lord Chancellor Irvine in his decision of July 2001, when he fixed the Discount Rate as being 2.5%’. [i]

The discount rate has since remained at 2.5%. However, it has been argued that this rate is long out of date and does not reflect the lower investment returns available in the current economic environment due to the substantial reduction in yields on Index Linked Government Stocks (ILGS) since 2001 and so therefore overestimates the amount of return on an investment and under compensates the claimant. In 2010, around the time that the 7^th edition of The Ogden Tables were published, the then Lord Chancellor, Kenneth Clarke indicated his intention to reconsider the discount rate and announced a review of the rate, but the MoJ’s consultation on the issue entitled ‘Damages Act 1996: The discount rate – how should it be set?’ was not published until August 2012. This was followed by a second consultation in February 2013 which ran until May 2013 with a government response being due in July 2013. However, there has, until now, over three years later, been no reply to the consultation.

The announcement from Liz Truss this week declares that the results of the 2013 review will be published by 31 January 2017 and it has been reported that this was spurred by the threat of judicial review proceedings being brought by APIL. APIL claim that the failure to review the discount rate for personal injury claims has resulted in seriously injured people having been undercompensated for years. Neil Sugarman, the president of APIL stated:

‘People with lifelong injuries are continuing to be undercompensated, in some cases, by hundreds of thousands of pounds, because successive governments have dragged their heels and failed to review the discount rate to reflect changes in the economy’.[ii]

With the Lord Chancellor also announcing recently her intention to push ahead with the PI reforms, it would seem that the personal injury sector is under the microscope more than ever.

It remains to be seen whether alongside the results of the consultation on the discount factor the government will also fund the 8^th edition of The Ogden Tables which the Ogden Working Party said was much needed in the introduction to the 7^th edition due to many other figures, as well as the discount factor, needing to be updated. The need for the 8^th edition of the Tables seems particularly strong following the decision in Knauer v Ministry of Justice [2016] UKSC 9, which changed the date at which financial losses should be calculated from, from the date of death to the date of trial.

This week, at the 17^th World Conference on Lung Cancer, US drug company Merck announced that its new cancer treatment Keytruda (also known as Pembrolizumab) has shown positive clinical outcomes in difficult to treat cancers such as lung cancer and mesothelioma.[i]

Keytruda is an immunotherapy treatment for cancers which have spread or cannot be removed by surgery. It acts by targeting and blocking a protein called PD-1 on natural T killer cells within the body. This triggers the T cells to locate and attack cancer cells.

We have now started to see claims for the private cost of Keytruda treatment in mesothelioma claims, typically at around £70,000.

In a future feature we look at this new treatment in detail. Does it have any clinical benefit in the treatment of asbestos related lung cancer and / or mesothelioma? What are its costs? What are the typical outcomes of treatment and how can quantum overall be affected by such outcomes? What must a claimant prove in any claim for private medical treatment of this type?

Just Costs Solicitors, which claims to be the country’s largest specialist costs firm, is reported to have agreed a company voluntary arrangement (CVA) earlier this year due to owing £781,758 to HMRC, £29,836 to a financial advisory firm and £17,429 to landlords 12 Office Limited. The total of the creditors’ debt comes to £829,000.[i]

The CVA outlines that this debt will be repaid in 24 monthly contributions of at least £33,836. The arrangement will remain in place unless there is any winding-up order against the company or the company goes into administration.

Further to this, a supervisor will conduct a full review of the arrangement on an annual basis, when Just Costs will be required to supply profit and loss figures for the 12 months previous. During the life of the arrangement, should any contribution fall 30 days into arrears or be less than the minimum amount stipulated, the supervisor will petition a compulsory winding up of the company.

Despite this arrangement, Just Costs insist that it continues to trade profitably and has support of its bank and funders. However, directors are banned from paying themselves dividends for the two year life of the CVA.

In a statement made by the firm, it appeared that the root of its financial difficulties was the introduction of fixed costs for high-volume/low-value personal injury work and the introduction of the costs management process. It stated further:

‘Our major challenge has been to move from cases with a 90-day matter cycle to over 12 months, compounded by the fact that HMRC treat our work in progress as income, even when it has not been invoiced. This lead to the arrangement we have recently entered into with HMRC. This arrangement provides for 100% of the debt to them to be repaid. We will be meeting our liabilities in full. We are dealing with work of an ever-increasing value and complexity. It is business as usual’.

Although, the HMRC announced the switch to taxing work in progress as far back as 1997 and despite it then subsequently being delayed, the first accounting periods which were affected were still as early as those ending 2000-2001.[ii] As such, it is difficult to see how this could be the cause of Just Costs Solicitors’ financial difficulties.

INTRODUCTION

Last week we considered asymmetrical hearing loss (AHL) in the context of recent medical studies which consider whether asymmetry is a consequence of noise exposure and if so when.

This week we turn to look at how the courts have dealt with asymmetry with a review of the relevant case law

THE COLES GUIDELINES

Unexplained cases of asymmetry are considered in the guidelines at Note 11 which states: ‘In yet other cases, there is no apparent explanation for the presence of a significant NIHL-like notch or bulge on one side only. These cases are compatible with the presence of NIHL but with varying degrees of probability’.

Some examples of each of the 4 types of asymmetry are presented below:

Asymmetry Type 1

‘….if one ear meets R3(a) or R3(b), and the other ear also shows a notch or bulge but it is smaller than the 10 dB or 20 dB required, then the probability of NIHL is still high’.

We show such a case in the figures below. The first figure shows the thresholds in both ears and compares these with a range of ‘normal hearing’ for the non-noise exposed population (for the claimant’s age / gender) as shown by the grey shaded area. The left ear is clearly the ‘better ear’. The red shading in figures 2 and 3 show worse than expected hearing applying the calculation within the Guidelines. The left ear in figure 2 demonstrates a clear audiometric bulge greater than 10 dB [for the purpose of this example assume R2(a) is satisfied under the Guidelines with a NIL of at least 100 dB(A)]. The worse right ear in figure 3 shows a bulge of 7dB-so not qualifying as a bulge within the Guidelines (see paragraphs 7.5, 7.6 and 8.2).

The Guidelines are ambiguous in that:

• They do not state that the ear meeting R3(a) or R3(b) must be the ‘better ear’
• They do not define the extent of the notch / bulge in the non-qualifying ear which would allow a claim to fall within this category.

Asymmetry type 2

‘If one ear is markedly better at high frequencies and shows a significant notch or bulge, but the worse ear shows little or no trace of such, then there is still a more-likely than-not probability of NIHL’.

The Guidelines explain that ‘the greater impairment in the worse ear may be due to some unidentified cause additional to NIHL and ordinary AAHL, that additional disorder having hidden or obliterated the noise-induced notch or bulge’.

We show such a case in the figures below-the green shading in figure 3 denotes better than expected hearing after applying the calculation within the Guidelines.

Asymmetry type 3 

‘In other cases there is not much difference between the two ears at high frequencies but, without apparent explanation, only one ear shows a significant notch or bulge and the other shows little or no trace of one: such cases should be regarded as very borderline and be decided on the strength of other evidence (e.g. severity of noise exposure or of temporary postexposure symptoms).

Such a case is shown in the figures below-although again there is ambiguity within the Guidelines as to what is meant by a ‘little’ notch or bulge.

Asymmetry type 4

‘Finally, if only the worse ear at high frequencies shows a significant notch or bulge, and there is little or no trace of NIHL in the better ear, then there is only a possibility of NIHL, not a probability.

Again there is ambiguity as to what is meant by ‘little’.

An example of such a case is shown in the figures below where there is a notch/bulge in the worse left ear but no evidence of the same in the better right ear.

HOW HAVE THE COURTS DEALT WITH ASYMMETRY?

Perhaps the case in which asymmetry is most discussed is that of Cran v Perkins Engines Company Limited (14^th December 2012, Norwich County Court). The defendant in this claim accepted breach of duty and as such the critical issue between the parties was whether the claimant’s hearing loss was caused by occupational noise exposure.

The evidence was confined to expert medical evidence from the two expert witnesses, Mr Lancer for the claimant and Mr Parker for the defendant.

The claimant had undergone audiograms in 1984, 1986, 1988 and 1990 (the audiograms carried out in 2010 and 2011 were disregarded as both experts agreed that they did not show features typical of NIHL and so had no evidential value in relation to the claim). The table below displays the results of the audiograms:

It can be seen from these results that the claimant’s hearing loss would fall into asymmetry type 4, as outlined above i.e. only the worse ear at high frequencies showed a significant notch or bulge, and there was little or no trace of NIHL in the better ear’. According to the Coles guidelines, this presents only a ‘possibility’ of NIHL.

Both experts relied upon the approach to asymmetry in the Coles Guidelines, they also considered many of the studies that we outlined in last week’s feature in edition 165 of BCDN here. 

Mr Lancer in particular, argued that the claimant’s hearing loss fell within Note 11, showing that NIHL was shown on the balance of probability, or alternatively, that the asymmetrical pattern of the hearing loss could justify a finding of NIHL. This conclusion, he said, was based on the study of Fernandes and Fernandes (2010),^[1] which suggested that asymmetry did occur when there was ‘all over noise’.  We touched on this study briefly last week as part of a wider examination of research purporting to link asymmetrical hearing loss with occupational noise exposure.

Fernandes (2010) investigated 208 clients referred by legal practitioners for assessment of hearing loss for compensation purposes.  A total of 47 clients (22.6 %) had asymmetrical hearing loss.  AHL was defined as loss of 10 dB or greater for two consecutive frequencies, or of 15 dB for any one frequency between 0.25 and 6 kHz.  Diagnosis of NIHL was based on the requisite history of ‘substantial noise exposure at work’, audiogram results showing a hearing shift at high frequencies with a typical notch at 4-6 kHz and elimination of competing diagnoses.   This study concluded that most compensation claims with asymmetry could be attributed to noise exposure.  Within the paper, the researchers also referred to the Lutman and Coles study,^[2] in which it was found that 1 % of non noise-exposed individuals had a defined asymmetric hearing loss. The argument presented by Fernandes is that incidence of asymmetric hearing loss in an unexposed population is therefore significantly low and incidence among noise-exposed groups is much higher, and thus the noise exposure causes the asymmetrical hearing loss.

In Mr Lancer’s opinion, this and other studies such as Alberti (1979), Chung et al (1983), Barrs (1994) and Segal (2007), supported his view that despite the asymmetry shown on the claimant’s audiograms, he had suffered NIHL (these studies were discussed in last week’s feature here. With the exception of Segal which is outlined in further detail below). This is because, he said, in a workplace there might appear to be all over noise but in fact there might be reverberations of machines which can lead to one ear receiving more noise than the other ear and the ears not recovering equally from exposure to noise.

Mr Parker, expert for the defendant, however, referred to the earliest audiogram test in 1984 which showed ‘distinct notch formation’ at 6kHz in the left ear (the worse ear) but not repeated on the right. He contended that the presence of asymmetry meant, in his opinion that this was not NIHL. Further to this, he said that as time went on the audiograms showed increased hearing loss in the left ear with an asymmetric notch at 4-6khz not being present on the right side which meant that the hearing loss was ‘not representative of occupational noise exposure’.

Mr Parker said that his opinion was supported by the Coles guidance and Note 11 specifically which said that if only the worse ear at high frequencies showed a significant notch or bulge and there was little or no trace of NIHL in the better ear then NIHL was a ‘possibility’ not a ‘probability’.

When considering Mr Lancer’s reliance on the Fernandes paper Mr Parker submitted that the definition of asymmetry used within the Fernandes paper, loss of 10 dB or greater for two consecutive frequencies, or of 15 dB for any one frequency between 0.2 and 6 kHz, was not really asymmetry and that they had a very low hurdle for describing an audiogram as asymmetric which would explain the high levels of AHL in the noise-exposed population. Whereas Coles and Lutman’s definition of asymmetry, a difference of 15 dB in the average of thresholds at 0.5, 1, 2 and 4 kHz, is far more exclusive than the definition used by Fernandes and thus Lutman and Coles’ criterion would be expected to give a smaller prevalence. He therefore remained of the opinion that asymmetry had nothing to do with noise. He referred to the Fernandes study as a ‘bad report’ and suggested that 200 cases or so had been pulled off the shelf by the authors who had decided that the individuals had been noise deafened. Further to this, he said that the claimant’s situation was very different from truck drivers (the sample group in the Fernandes paper) who were a well-accepted group who suffered asymmetrical exposure while driving a truck where the engine emitting significant noise had been in the cab next to the driver.

Mr Parker then went on to consider the studies of Alberti (1979), Chung et al (1983), Barrs (1994) and Segal (2007). All of these studies, suggest that asymmetry can be a consequence of general occupational noise exposure. Segal (2007), comprised a random selection of 429 patients with mild to moderate sensorineural hearing loss of at leatst 30dB at one frequency. The authors found that age, handedness and sex were not found to be correlated to asymmetric hearing loss. However, a correlation was found between noise exposure and asymmetrical hearing loss which favoured the right ear (lower hearing threshold loss). The left ear hearing threshold was consistently found to the higher than the right ear hearing threshold level with hearing asymmetry of more than 10db found in 35% of these patients. However, noise exposure was the only factor which was found to correlate with asymmetric hearing loss in these patients with mild to moderate sensorineural hearing loss.

Mr Parker claimed that, the authors of the papers had concluded that there had been NIHL based on inadequate consideration of the individual characteristics of those who had participated in the surveys including the incidence (or otherwise) of unilateral exposure. The better methodology, he claimed, would have been for a panel of experienced clinicians to have appraised each of the work histories and then to have made a diagnosis from the audiometry. As such, the weight of evidence and research did not show the susceptibility of one ear to noise and he remained of the view that there was no NIHL unless there was bilateral exposure and bilateral deterioration of the hearing in each ear.

His Honour Judge Staite, criticised the approach of Mr Lancer to the evidence of hearing loss put before him. He stated at para 50, that Mr Lancer had arrived ‘at a conclusion on liability in relation to NIHL which was at best superficial and at worst inaccurate…’.

Further to this he stated that:

‘In my judgment, Mr Lancer, having been advised that the claimant had been exposed to excessive noise levels during his working life and having concluded that the bilateral hearing loss in 2010 was too great to be accounted for by ageing alone, proceeded to make an assumption (which I find was unjustified on the presenting evidence ) that “his (the claimant’s) noisy occupations have made a contribution to the hearing loss” and furthermore that it was his “absolute belief” that excessive noise had contributed to the hearing loss’.

It was noted that during oral evidence Mr Lancer conceded that due to the absence of diagnostic factors in the four audiograms and having regard to the asymmetrical presentation of the claimant’s hearing that that evidence of noise exposure and unexplained hearing loss created a ‘possibility’ of NIHL rather than a ‘probability’. As such, the judge rejected the claimant’s submission that the audiograms complied with Note 11(1) and (2) i.e. NIHL was ‘more than likely’ or ‘very borderline’.

Instead, HHJ Staite, much preferred the evidence of Mr Parker in this regard stating at para 54:

‘Having heard both experts I was entirely persuaded by Mr Parker’s careful medico-scientific analysis of the issues in the case and his firm assertion that notches in the left ear which were not reproduced in the right ear during the exposure made a diagnosis of NIHL only one of serveral possible explanations for the claimant’s hearing loss’.

Turning his attention to the research papers relied upon in this case, the judge pointed out the difficulty with the Fernandes paper, in that it used the Lutman and Coles 2009 paper as a comparison but the cohorts compared were incomparable due to the differing definitions of asymmetry. As such he concluded that the comparison was inappropriate. He was also not sufficiently impressed with the other research papers relied upon:

‘I do not find therefore that the Fernandes paper [nor indeed any of the other papers] provided a sufficiently cogent analysis of asymmetric hearing loss. Nor do I find that the conclusion of the Fernandes paper was sufficiently sound for me to be persuaded that the concluded view (in the absence of other significant clinical history or evidence of otological disease asymmetrical hearing loss is caused by noise exposure and should be included in compensation claims) should be adopted by this court as evidence for the proposition that symmetrical noise exposure might, on balance of probability, cause asymmetrical hearing loss’.

As such HHJ Staite concluded that:

‘I am entirely satisfied, having regard to the Coles guidelines (which I find should inform my evaluation of the likelihood or otherwise of NIHL in this case) that the claimant has not made out his case on causation of NIHL and that save for the isolated notches on the 1986 and 1988 audiograms (which may be unreliable and are based on an adjusted reading at 6khz), there is insufficient evidence before the court to justify a finding of ‘probable’ NIHL as opposed to ‘possible’ NIHL. Accordingly, Note 11 (1-3) of the Coles guidelines is not satisfied and I find that the claim sits squarely within Note 11 (4)’.

Another judgment which discussed asymmetry in some detail and was handed down in the same year as Cran was, Aldred v Cortaulds Northern Textiles Limited (County Court Liverpool, 2 November 2012). The claimant in this case was a 61 year old female, employed with the defendant for between 11-14 years as a ring spinner machine operator. It was not accepted by the defendant that any noise exposure during her time at the firm had caused damage to her hearing but instead they contended that it was caused by an unknown origin. One of the main foundations of this argument was that the audiograms, of which there were several, showed significant AHL.

The audiograms were taken at several stages spanning from shortly after the claimant had ceased working with the defendant and right up to trial. These audiograms were then assessed by Mr Zeitoun, medical expert for the claimant, and Mr Parker, medical expert for the defendant.

Following these audiograms, Mr O’Driscoll, a dedicated audiological scientist, carried out a series of audiometric testing  and included the use of evoked response audiometry (CERA) and two pure tone audiometry (PTA) tests. Mr Parker then tested the outcome in accordance with the requirements set out in the guidelines and found:

Both experts were questioned about their interpretation of the guidelines in relation to asymmetry.

Mr Parker submitted that where he was faced with type 1 asymmetry (above) where one ear meets R3(a) or R3(b) and the other ear also shows a notch or bulge but is smaller than the 10dBs or 20dBs required but the probability of NIHL is ‘still high’ – he could not diagnose NIHL because of the incongruence of such a modest bulge in the better ear. Although he was prepared to accept that type 2 could indicate NIHL, where the ear with a significant notch or bulge had a significant degree of high-frequency recovery even though there was no evidence of either in the worse ear.

Mr Zeitoun however was strictly adherent to the guidelines and his assessment (using averaging which we discussed previously in edition xx) of the two audiograms came within asymmetry type 1.

The judge, HHJ Wood, accepted that there was asymmetry and so Note 11 was relevant. However, he rejected Mr Parker’s challenge to the probability of type 1 asymmetry in the guidelines concluding that it was reasonable to average the two tests carried out by Mr O’Driscoll which applied a slightly more generous allowance of -3dBs for the determination of the bulge and so the claimant did fit within type 1 and accordingly he found that there was a ‘high probability of NIHL’.

As such, he preferred the evidence of Mr Zeitoun and held that the claimant had satisfied him on the balance of probabilities that she has a modest hearing loss more pronounced on the left-hand side than the right hand side.

This decision was followed shortly by Sutton v BT (County Court Cardiff, 14 June 2013) in which asymmetry was one of several contentious issues relating to the diagnosis of NIHL of the claimant.

The claimant in this case submitted in oral evidence that his right ear was the more exposed ear during his time working with the defendant. However, the criteria set out in the guidelines were not met in the right ear and were only met in the left ear at 3kHz with ‘minimal notching. It was therefore submitted by the defendant’s expert, Mr Yeoh, that given the claimant’s pattern of use of the equipment, that this loss was unlikely to be the result of noise exposure. Additionally he said, the pattern was one which the guidelines, particularly Note 11, would regard as ‘very borderline’. HHJ Curran QC, preferred the approach of the defendant and found that not only was the claimant’s evidence unreliable but the bilateral condition for NIHL was not fulfilled, even allowing for an acceptable degree of asymmetry.

More recently in the decision of Briggs v RHM Frozen Food (Sheffield County Court, 30 July 2015) the topic was given some consideration. The audiograms showed a loss in the right ear of 10dB at 1kHz, 15dB at 2 kHz, 5dB at 3 kHz and 30dB at 4 kHz. In the left ear the figures were 15dB, 5dB, 5dB and 45dB.

Professor Homer, medical expert for the claimant, concluded that all the basic criteria for a diagnosis of NIHL were met by reference to the guidelines and that there was no significant asymmetry overall. He acknowledged that there is a commonly accepted margin of error of 10dB (plus or minus 5dB) but noted that the difference in this case at 4kHz was greater than that. He also pointed out that the generally accepted clinical definition of significant asymmetry is 15dB in two or more contiguous frequencies. Professor Homer was therefore adopting Fernandes’ definition of asymmetry (as outlined above).

Mr Jones, medical expert for the defendant, concluded that the hearing loss in the left ear could not be due to noise because it was too severe and because of the marked asymmetry. He disagreed with the suggestion that 15dB is not significant and found that asymmetry of 15dB is too significant to be attributable to symmetrical noise exposure and there would have to have been an idiopathic cause for the hearing loss.

HHJ Coe QC, agreed with Professor Homer and found that on a balance of probability that:

‘…whilst the asymmetry at 4 kHz is very much at the upper end of what is acceptable it is not beyond that and does not constitute “significant asymmetry”. Of itself, therefore, I do not consider that it is either inconsistent or so inconsistent with that expected in NIHL as to negate the diagnosis’.

CONCLUSION

The recent studies of Dobie (2014) and Phillips (2016) (as discussed last week) undermine the association between AHL and occupational noise exposure and show that typically asymmetrical hearing loss has other causes such as age, or even unknown causes. 

The most comprehensive judicial review of the material in relation to asymmetry and occupational noise exposure is found in Cran. The decision shows that the available research when properly analysed, supports the argument that an NIHL diagnosis is strongest where there is bilateral hearing loss.  

Whilst the decisions of Briggs and Aldred seem to contradict this conclusion in both cases the degree of asymmetry was modest and arguably could fall within the parameters of expected audiometric variability between the ears. It must also be remembered that individual findings on medical issues are fact specific and dependent on the nature and quality of medical evidence and authorities present in each case. As was cautioned in Childs v Brass & Alloy Pressings (Deritend) Ltd (21 December 2015), a de minimis case, where DJ Kelly made the following statement regarding the reliance on previous de minimis decisions:

‘It is apparent from those three cases that the conclusion as to whether or not the loss is de minimis is very fact specific to an individual case.  

We warned in edition 133 of BC Disease News, that first instance decisions are of no precedent value as county court decisions are not binding. Further to this each decision is based on the particular evidence of each case. Findings on the evidence in one case is not a proper basis for the same finding in another case where the evidence is different. As such, it is difficult to extract any generally applicable principles from these first instance decisions on asymmetry and so defendants (and claimants) should not simply rely on previous favourable decisions without evidence to challenge those areas in dispute.

Last week we reported that Bolton County Council had awarded a ‘secret’ emergency grant of £300,000 to Bolton based claimant solicitors firm Asons Solicitors Ltd. The award was made by Bolton Labour leader, Cliff Morris, under the Emergency Powers Procedure (EPP). The grant was met with widespread criticism from the claimant solicitor community in Bolton and members of opposing political parties. In particular, opposition leader and Tory Councillor, David Greenhalgh, insisted that he was unaware of the Asons grant decision and put a motion forward for a named vote to be held at the next council’s meeting so that each member could announce publicly whether they agreed with the grant. The suspicion surrounding the grant increased greatly towards the end of last week when it was revealed that HMRC had made a claim against Asons for exactly £300,000 relating to unpaid PAYE/NI contributions.

The council’s meeting was held earlier this week and it has been reported that council leader, Cliff Morris, faced further calls for his resignation. As encouraged by opposing party, UKIP, residents had turned out to protest outside the town hall and throughout the meeting chants of ‘out, out, out’ could be heard with a staged walk-out half way through the meeting.[i]

As promised, Mr Greenhalgh held a named voted whereby each member of the council stated publicly whether they agreed with the following statement:

‘This council disagrees and disapproves with (sic) the decision made by the leader of this council, made under Emergency Powers, to award a grant of £300,000 to Asons Solicitors towards refurbishment and occupation of their offices at 40 Churchgate, and agrees to issue a public statement to the residents of Bolton stating thus’.

The ruling group’s Labour councillors backed the grant and disagreed with the above statement whilst the minority Conservative, UKIP and Liberal Democrat councillors agreed, publicly stating their disapproval. One Liberal Democrat councillor abstained.

Greenhalgh put several questions to Morris throughout the meeting. Most notable was his questioning of the timing of the grant. He pointed out that, Land Registry documents showed that Asons purchased its new premises in March for £902,000, with refurbishment work being completed on the building in September. So the question was posed – why was there the need for emergency funding, so soon after this purchase and was it really necessary in order for the firm to stay in Bolton?

In response to this Morris claimed that the negotiations with Asons had started nine months before the firm moved.

According to the Order Paper, published on the council’s website after the meeting, Mr Roger Hayes, Liberal Democrat leader, queried why the grant was made in favour of Asons over other law firms in Bolton and also why it was made at a time when cuts were being made to public services. Additionally, he challenged the media’s reports of the number of individuals employed at Asons (reported to be 400-500), which he claimed his sources told him was actually 150 or less.

To this, Morris, pointed out that other businesses had been approached and helped by the Council in the past, meaning that Asons had not in fact been favoured.

Finally, Mr Hornby, Conservative member of the council asked whether the necessary due diligence had been carried out on Asons’ accounts and whether or not the council had considered the effect of the planned reforms in the PI sector.

Morris insisted that there was an independent audit being carried out by the council which would provide full transparency. There has been no indication of when the results of this audit will be announced or made available but we will continue to keep readers informed of any developments.

We reported in edition 157 of BC Disease News that Slater & Gordon (S&G) planned to sue Quindell, now known as Watchstone Group, for the £637m purchase of Quindell’s Professional Services Division. Subsequent to this purchase, Quindell came under investigation by the UK’s Serious Fraud Office for its historic business and accounting practices causing S&G to suffer a reported £493m loss and a 25% reduction in share price.

S&G is seeking £53m compensation from Watchstone Group under a warranty attached to the Share Purchase Agreement for non-performance or under-performance of the sale. S&G has previously announced to the Australian Stock Exchange (ASX), that £50million of the purchase price paid to Watchstone Group Plc will remain in escrow (a bond kept in the custody of a third party and taking effect only when a specified condition has been fulfilled) until the notified claim is resolved. One criteria required by the Share Purchase Agreement, was that S&G would need to obtain a merits assessment by an independent barrister by 29 November 2016, otherwise the amount in escrow would be released back to Watchstone Group’s shareholders.

This week, S&G announced to the ASX, that it had obtained a positive merits based opinion and as such the £50 million currently held in escrow would continue to be held until the claim was resolved.[i] The opinion claims to have given the claim ‘a prospect of success and that, if successful, such a claim would be likely to have a value of £53m’.[ii] Although, Watchstone Group has said that the opinion is solely for the purpose of determining whether the warranty escrow may be released and does not pre-judge the outcome of any legal proceedings. It stated: ‘Watchstone remains satisfied that the warranty claim has no merit and will defend it robustly if proceedings are brought’. [iii]

However, shares in the AIM-listed firm, have fallen from £2.30 per share to £183.75 per share since September 2016 and it remains under investigation by the Serious Fraud Office. S&G, meanwhile, still face being sued in Australia by investors. We will continue to report on the progress of these claims.

We reported in edition 152 of BC Disease News, that Companies House had announced plans to reduce the amount of time the records of dissolved companies are retained, from 20 years to 6.

This announcement was followed by a flurry of criticism, with claims that the move would undermine the government’s plan to tackle corporate irresponsibility and would hinder businesses, journalists and the police in their efforts to investigate corporate corruption.

It has now been announced that these plans have been abandoned by the government’s company registration agency. Margot James, undersecretary of state for the Department for Business, Energy and Industrial Strategy has been quoted as saying:[i]

‘The government has no current plans to bring forward proposals to reduce the period of time that Companies House retains records of dissolved companies. Nevertheless, we will continue to keep the retention period under review, during which time the registrar of companies will ensure there is no destruction of records. Additionally, any future proposal to change the retention period would be subject to public consultation’.

This statement came in response to a written parliamentary question from SNP MP, Martin Docherty-Hughes after discussions with the Asbestos Victims Support Groups Forum UK, which had initially planned legal action against the government if the proposal went ahead. It claimed that the proposals would have proved disastrous for people with asbestos related mesothelioma seeking to secure compensation for their negligent workplace exposure to asbestos. This is because of the long latency period of the disease, meaning that the employer has usually gone out of business by the time the disease develops. Access to Companies House records on dissolved companies may be crucial in asbestos and long tail disease claims, enabling them the correct former employer and its insurer liable to pay compensation.

Welcoming this change of heart, Graham Dring, Chair of the Asbestos Victims Support Groups' Forum UK said:
‘This decision is good news for victims of mesothelioma and other long-tail industrial diseases who already face an uphill struggle securing justice in the courts. If these proposals had gone ahead it would have denied access to justice to many asbestos victims unable to pursue a negligent employer or their insurer. It is also reassuring to hear the Minister confirm that no records will now be destroyed as even the 20 year retention period is inadequate in protecting the interests of terminally ill asbestos victims who may have been exposed to asbestos 40 or 50 years before. There is no way of predicting which records may be needed in the future. Storage should not be an issue with the technology available to us today and we expect Companies House to maintain its commitment to those suffering from mesothelioma now and the thousands more predicted in the future by retaining records of all dissolved companies.’

INTRODUCTION

We first looked at asymmetry in noise-induced hearing loss (NIHL) claims in edition 24 of BC Disease News. This week, we revisit the issue in the context of recent medical studies which consider whether asymmetry is a consequence of noise exposure and if so when.

Next week we look at how the courts have dealt with asymmetry with a review of the relevant NIHL case law.

WHAT IS ASYMMETRY?

Differences in thresholds at corresponding frequencies between the ears is inevitable as a consequence of the variability of pure tone audiometry. Small differences in thresholds are bound to occur simply as a result of the imprecise nature and errors of audiometry, as was outlined in the recent feature on audiometric variability in edition 160 of BC Disease News here.

However where the hearing thresholds between the ears of an individual differ significantly at corresponding frequencies than is referred to as asymmetrical hearing loss with the audiograms displaying asymmetry.  What is a significant difference? As defined by Alberti^[i] if the threshold differences are greater than 10dB between the ears - the generally accepted level of normal audiometric variability - then this can be defined as asymmetry.

NIHL on the other hand has been described as being typically bilateral and is usually considered to cause similar amounts of damage to both ears⁵, since most occupational noise is symmetrical.[ii]

How common is asymmetry in the non-exposed population and what are its causes? How does the presence of asymmetry sit with a diagnosis of NIHL? Can noise exposure give rise to asymmetry and if so in what circumstances?

GENERAL INCIDENCE OF ASYMMETRY

A 2009 study by Lutman and Coles,[iii]  sought  to determine the incidence of asymmetry in non-noise exposed individuals.  Audiograms from 2679 participants were analysed. Lutman and Coles estimated that around 1 % of the UK population aged 18-80 years have an asymmetry of 15 dB or more, based on the average of 0.5, 1, 2 and 4 kHz and the prevalence of asymmetry was greater in older people than in younger people. 

CAUSES OF ASYMMETRICAL HEARING LOSS

Frequent ear infections, Ménière disease and ear surgery may result in asymmetry.[iv] 

The causes of asymmetry were identified in the CLB Guidelines 2000 at Section 12 and Note 11 of the Guidelines as follows:

• Exposure to firearms noise – with the ear closest to the muzzle of the gun having worse hearing (so called firearms or head shadowing effect)
• Acoustic trauma or blast, such as the use of explosives in mining or construction or tyres exploding
• Unilateral or greater conductive hearing loss in one ear having a ‘protective effect’ against exposure to excessive noise. For example the presence of wax may reduce the transmission of noise across the ear and so reduce its damaging effects.
• Unilaterally poorly fitted hearing protection
• Genuine asymmetrical noise exposure

The Guidelines also recognise that in some cases the cause of asymmetry will be unknown.

In their 2009 study by Lutman and Coles on asymmetry, for participants with the largest asymmetry, detailed examination of the original data, and consideration of factors such as family history of deafness, head injury, ear injury, administration of ototoxic medication, general health factors including hypertension and history of infectious diseases, failed to reveal a potential cause of the asymmetry.  This led Lutman and Coles to conclude that many hearing asymmetries in the general population can be expected to be of unknown causation. 

It seems then that unknown causation of asymmetry in a population is common and so it’s presence alongside NIHL does not mean that it has been caused by asymmetrical noise exposure - unless there is good evidence to show otherwise.

ASYMMETRY AND FIREARMS NOISE

Many studies support the conclusion that exposure to firearms noise often results in asymmetry with the left ear worse affected than the right. This is said to arise from the ‘head shadowing’ effect and the right ear being ‘protected’ within the shoulder of the person using the firearm.

Cox and Ford assessed the asymmetry of 225 soldiers exposed to a variety of weapon noise who had deterioration of hearing.[v]  At 0.5 and 1 kHz the asymmetry was 10 dB or less in 90 % of cases, and the hearing thresholds rarely exceeded 25 dB.  However, the degree of hearing loss and asymmetry increased as the frequency increased, and the average loss at 2, 3, 4 and 6 kHz was significantly greater in the left ear. 

Chung and colleagues also analysed audiograms of 29,953 workers with histories of shooting in addition to occupational noise exposure[vi] and they found that shooting was associated with AHL.  In this study asymmetry was significant only at 2 kHz and above and most prominent at 4 kHz.  The difference between the ears increased with longer shooting history. 

Additionally, Prosser found that among 133 railway workers who also hunted for sport outside of work and 82 workers who did not, hunters had significantly worse hearing than non-hunters in the ear closest to the barrel of the gun.  [vii]

ASYMMETRY AND OCCUPATIONAL (NON-FIREARMS) EXPOSURE

Alberti et al, 1979,[viii] looked at 1,873 consecutive patients referred for compensation assessment for presumed industrial hearing loss, and found that 281 (15 %) had an average difference in hearing threshold between the ears of 15 dB at 0.5, 1, 2 and 4 kHz. 

Chung et al, 1983,[ix] considered1461 audiometric records of claims for NIHL, it was found that 69 (4.7 %) had a well-defined pattern or hearing loss, in which only 2 kHz is asymmetrical by 20 dB or more.

Barrs et al., 1993,[x] analysed the audiological tests of 246 workers who underwent otologic and audiologic testing as part of a worker’s compensation claim for work-related NIHL and asymmetric hearing loss was found in 28 patients (20%) with asymmetry being defined as an average difference of at least 15 dB at 0.5,1,2 and 3 kHz.

More recent studies also suggest that asymmetry can be a consequence of general occupational noise exposure and can arise without the ‘head shadowing’ effect suggested in firearms exposure studies. The competing theory put forward in the recent studies is that the left ear is simply physiologically more susceptible to noise damage than the right ear.

Broste found that hearing loss at higher frequencies was also observed more often in the left ear of farming high school students.^[xi] He suggested this was due to drivers habitually observing their work by looking over their right shoulder and therefore shielding their right ear from the noise of the engine. This ‘head shadowing’ theory and has been doubted by Berg and colleagues in their 2014 paper in which they highlighted that there is little published evidence to support the theory.^[xii] Instead they conclude that the physiological explanation of a left ear being more susceptible to NIHL is a more credible alternative.

A study by Fenandes and Fernandes in 2010 claims the incidence of asymmetric hearing loss in the unexposed population is significantly lower than that incidence among the noise-exposed population it must therefore be the case that noise exposure causes asymmetrical hearing loss. (We consider the Fernandes and Fernandes study in more detail next week).

SO DOES OCCUPATIONAL NOISE EXPOSURE CAUSE ASYMMETRY?

This was revisited recently by Dobie, in a study published in 2014, which aimed to determine whether occupational noise exposure increases audiometric asymmetry.[xiii]    The paper notes that asymmetry is common in both clinic samples and the general population, particularly at higher frequencies and when both ears tend to have higher thresholds. 

Data for this study were taken from the Occupational Noise and Hearing Survey (ONHS), carried out by the National Institute for Occupational Safety and Health (NIOSH, United States).  Audiometry was obtained for 2044 men, mostly from printing and steel fabrication plants, who were divided into four groups:

1. Screened non-noise-exposed (NNE):   with a current daily time-weighted average (TWA) exposure of less than 80 dBA, screened to ensure no significant previous noise exposure or history of ear disease, and normal otoscopy;
2. Screened noise-exposed (NE):  with a current time-weighted average of 80 to 102 dBA, screened as above;
3. Excluded NNE:  current time-weighted average of less than 80 dBA, but placed in this group because they failed one or more of the screening criteria listed above;
4. Excluded NE:  current time-weighted average of 80 to 102 dBA but failed one or more screening criteria listed above.

It was found that there was more asymmetry when average thresholds were higher. Also, age was a strong predictor of average thresholds, but had little if any effect on asymmetry.

Both the noise exposed men and those who failed the screening criteria had significantly worse binaural average hearing than those who were not noise exposed, with left ears being worse than right ears in all four groups by around 1 to 2 dB across the frequencies 0.5,1,2 and 3 kHz and 2 to 4 dB worse across 3, 4 and 6 kHz.

The most important finding from this paper is that there were no significant differences in asymmetry related to occupational noise exposure.  There were no significant differences between NE and NNE groups after controlling for overall average amount of hearing loss.  Though asymmetry increases with greater overall hearing loss, when this was taken into account, men with occupational noise exposure did not have more asymmetry compared with that in men in the same workplaces who were not exposed to noise. 

The author offers several examples to demonstrate how occupational noise could feasibly affect audiometric asymmetry, in spite of the findings of this study.  A worker who originally had asymmetry might suffer more NIHL in the better ear than the worse ear, and thus his audiogram would become more symmetrical.  Another worker with very asymmetric noise exposure may develop an asymmetrical NIHL.  However, the findings from this study suggest that, for most workers in general industry, occupational noise does not cause or contribute to asymmetrical hearing loss.

A 2016 review by John Phillips and colleagues aimed to collate the overall prevalence of unexplained asymmetrical hearing loss in subjects with NIHL and to provide a balanced argument regarding causality.[xiv]  The analysis suggested that 2.4 to 22.6 % of subjects with NIHL had asymmetrical hearing loss, with the left side having the greater deficit in the majority of reported cases (around 60-80 %).  The two theories of asymmetry development, a physiological increased susceptibility to NIHL in the left ear and preferential protection of the right ear, were discussed.  It is of interest that the majority of subjects exhibiting greater loss in the left ear occurred even when taking handedness into account i.e. which was the dominant hand.  The reviewers suggest that this casts doubt on the “head shadowing effect”. [However, “head shadowing could occur independently of handedness, such as turning the head over the right shoulder in a tractor because the controls for trailing equipment are on the right of the driver as shown in Broste]. 

Studies included in the review showed that asymmetrical hearing loss increased with advancing age.  According to the reviewers, this finding may be related to the influence of AAHL, which will act to exacerbate asymmetry.  It was not possible to undertake a meta-analysis of the data from the included studies, because different definitions of asymmetry were used.  Unsurprisingly, the study with the most generous definition of asymmetry-the 2010Fernandes & Fernandes gave the highest prevalence.  For most studies, no data existed for number of years of employment, use of hearing protection and other risk factors such as leisure time noise exposure, smoking, hypertension, ethnicity and diabetes.  Therefore, poorer hearing in noise-exposed groups may be attributed, at least in part, to these factors.  If any of these factors can also contribute to asymmetrical hearing loss, another source of bias is introduced.  The authors concluded that the studies reviewed provide limited evidence for the existence of asymmetrical hearing loss in subjects with occupational noise exposure.  This is particularly apparent when adjusted for significant variables such as age, sex and high frequency binaural hearing loss. 

CONCLUSION

Asymmetry may have a number of causes or simply be unexplained. Unexplained asymmetry seems to be fairly common within the non-noise exposed population and so there is no reason to assume that it should be uncommon within cases of NIHL – particularly where the population is older and the incidence of asymmetry is likely to increase.

Recent studies and reviews do not support the proposition that general occupational noise exposure - as opposed to unilateral firearms exposure-is a likely cause of asymmetry.

Next week, in part 2 of this feature, we consider how the courts have considered the issue of asymmetry and compatibility with a diagnosis of NIHL.

A survey carried out by the Association of Costs Lawyers (ACL), has revealed that just 2% of costs specialists have worked with solicitors that stick to their budgets. Of the 117 costs lawyers that were surveyed, 72% said solicitors ‘sometimes’ went over their budgets, with 22% saying this always happened.

It was suggested that this may be due to budgeting taking place too early in proceedings and it would perhaps be better to have the hearing later in the proceedings once the course of litigation is clearer, rather than the first case management conference.

Other areas of improvement suggested by the costs lawyers were that solicitors should be updating their budgets as the case progresses. However, 32% of those surveyed said they had never seen an application to update a budget, while only 18% reported that their number was increasing.

The standout finding from the survey was the concern had for the Court of Appeal ruling in the costs case, Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120, reported in edition 132 of BC Disease News. In this judgment it was suggested that the first case and costs management conference was the place to contest the reasonableness and proportionality of costs have already been incurred rather than just those to be incurred in the future. Previously it was thought that these should be left to detailed assessment at the end of proceedings.

Over a third of costs lawyers said the ruling had caused the first conference to be much more contested which, as a result, means that the amount of preparatory work has greatly increased.

Iain Stark, Chairman of the ACL commented on the findings of the survey and stated: ‘We are more than three years into costs budgeting and the reality is that – while it has been of benefit in some instances – it has not delivered in the way that was hoped. This is, at least in part, because many solicitors have still not properly engaged with the process, even though they risk court sanctions as a result’.

The alternative to the costs management regime is the fixed recoverable costs regime proposed by Lord Justice Jackson. We commented on these proposals in edition 164 of BC Disease News here.

Lord Justice Jackson has announced the appointment of 14 assessors to assist him with his review of the fixed recoverable costs regime. Among those appointed are Iain Stark, Chairman of the Association of Costs Lawyers and several high profile barristers and academics.

The review is due to start in January 2017 and will contain several recommendations which will then be considered by the Government in its public consultation on the proposed reforms which is due to take place after the review is published in July 2017.

The full list of assessors can be accessed here.

The Ministry of Justice (MoJ) has this week confirmed that the figures contained in its consultation released last week, which confirmed the government’s intentions to dramatically reform the personal injury sector, were incorrect.[i]

The figures which were used to outline the proposed increase to the small claims limit for personal injury cases and the tariff for general damages in minor whiplash claims, were out of date. The MoJ has revealed that this document was written over a year ago and the figures were based on the JC Guidelines before they were updated in September 2015.

As we outlined in edition 114 of BC Disease News, the 13^th edition of the JC Guidelines provides for more generous brackets of damages than the 12^th edition. This is especially so for the lowest band of soft-tissue injury which was increased by 20%. The comparison of the two editions can be accessed here.

As a result of this error, it has been suggested that the consultation is now open to judicial review. We will continue to report on this aspect of the proposals.

Elsewhere, the Chancellor of the Exchequer, Phillip Hammond, in his Autumn Statement, confirmed the government’s commitment to legislate next year to end ‘the compensation culture surrounding whiplash claims – a major area of insurance fraud’.

In the judgment of DB Mortgages v Jacobs Solicitors [2016] EWHC 1614 (Ch), the judge Mr Andrew Hochhauser QC, held that a part 36 offer acts as a counter-offer that extinguishes an earlier offer to settle based on common law principles.[i]

The decision was in relation to an allegation of negligence made against Jacobs Solicitors by DB Mortgages. In August 2015, the defendant made an offer to settle the claim. The offer specifically stated that it was not a part 36 offer because the payment could not be made within 14 days as required by CPR 36.14 and there was no time for acceptance specified within the offer. Notwithstanding the fact that the defendant said that if the offer was not accepted, it would seek the part 36 consequences if the case went to trial, the judge held that the offer did not comply with part 36 and as such it was a common law offer.

The offer was re-stated in March 2016 and again in early May 2016. In the same month, the claimant issued a part 36 offer which was not accepted by the defendant. The claimant subsequently accepted the original offer made by the defendant in August 2015, five days before trial. However, the defendant argued that this offer had been extinguished by the claimant’s Part 36 offer. Or, alternatively, even if the August 2015 offer was capable of being accepted, the time for doing so had lapsed. Despite the fact that the offer failed to stipulate a time for acceptance as per the part 36 requirements, common law offers to settle must still be accepted within 21 days and as such this offer had expired.

This was accepted by Hochhauser QC on the grounds that the part 36 offer acted as a rejection of the defendant’s offer to settle. He stated:

‘In my judgment, because one is dealing with an initial common law offer, the impact on it of any counter-offer has to be addressed by reference to common law principles. A part 36 counter-offer is still a counter-offer’.

However, regarding the defendant’s second argument, the judge was not as agreeing. He said there was no basis for implying any time limit for acceptance of a common law offer, stating:

‘One cannot on one hand seek to take advantage of the fact that this is not a part 36 offer, for the purpose of invoking the common law rule of rejection by reason of making a counter-offer, and then, when it suits, pray in aid the part 36 regime to import a time period of 21 days. Further… there is no default position of 21 days in part 36… Unlike a common law offer, a part 36 offer may still be accepted after the date of expiry. If a party wishes to make a non-part 36 offer, it can do so without any time limit, and it will still be efficacious from a business perspective, because it can always be withdrawn at any time prior to acceptance’.

Representatives for the defendant have indicated that it may appeal this decision. However, in the meantime it is thought that the outcome of this judgment may affect settlement techniques and tactics going forward.