Having been set-up almost 2 years ago by the Civil Justice Council (CJC), the NIHL Working Party has published its final report, entitled, ‘Fixed Costs in Noise Induced Hearing Loss Claims’. The working party’s members include claimant and defendant representatives and has put forward proposals for fixed recoverable costs in respect of NIHL claims which remain in the fast track.
We reported in edition 196 (here) on LJ Jackson’s proposals for fixed fees for all fast track cases, excluding NIHL claims, which remain in the fast track. The reason for this exclusion was that NIHL claims were being considered separately by the CJC Working Party. However, the report did include a summary of the NIHL mediated agreement, enclosed in Appendix 11, which we outlined in detail.
The full report has now been approved and published by the CJC; thus, the recommendations contained within have been sent to the Lord Chancellor.
The report contains a bespoke procedure for NIHL claims, which would apply to more straightforward types of NIHL claim. The report states that these claims ‘are still the majority’. As such, the proposed matrix of costs are restricted to cases which would remain within the fast track (both on value and on complexity) and exclude specific types of case which are considered less suitable for fixed costs, or are more complex than the norm. We outlined these exceptions, along with the fixed costs matrix, in edition 196 and this remains unchanged in the final report.
Other key recommendations, unveiled in the final report, include:
NEW LETTER OF CLAIM
The report states:
‘The new letter of claim is designed to contain more meaningful and relevant information, to avoid the need for requests for further information, to enable defendants to make early decisions on breach and to consider limitation and causation. This in turn should lead to costs savings and early filtering of and settlement of meritorious claims’.
The main requirements are that the letter of claim should be accompanied by:
- An audiogram produced by a suitably experienced and approved provider;
- Schedule of employment from HMRC; and
- Search results from the Employer’s Liability Tracing Office (ELTO).
The audiogram will need to be from an ‘acceptable UK “quality standard” audiologist’ from tests conducted in acceptable conditions. The Working Party claim this should ‘significantly reduce the need for defendants to request a repeat audiogram’.
Further to this, the claimant group acknowledged that in a case where liability is not in dispute and where there are no other unusual factors, the evidence of a suitably qualified audiologist would be sufficient to validate the level of NIHL, obtain evidence of tinnitus and assess the necessity of hearing aids. This was adopted as a proposal by the Working Party, who said that this would prevent the incurrence of additional costs of an ENT surgeon’s report.
The Working Party describe this approach to medical evidence as:
‘… a significant breakthrough in the handling of NIHL claims generally and the use of medical testing and evidence in particular’.
WHAT IS A ‘SUITABLY QUALIFIED’ AUDIOLOGIST?
The claimant representatives of the Working Party prepared a document on how to best ensure that audiologists are suitably qualified, along with input from the British Society of Audiology (BSA), the British Academy of Audiology (BAA), Professor Mark Lutman, Professor Emeritus of Audiology at the University of Southampton and the past President of the BAA.
This document is contained in Appendix F of the report and states that, in order to be classed as a qualified audiologist, the audiologist must be able to demonstrate the below:
- That they hold a degree in Audiology/Health Care Science;
- That they are registered with both the BSA and the RCCP/HCPC;
- That they have a good understanding of the CLB paper;
- That they agree to undergo training on NIHL once per year; and
- That they are willing to submit to an audit process.
Interestingly, it was agreed that Hearing Aid Dispensers do not hold the requisite qualifications to produce reports of this nature.
However, the Working Party did not reach any concrete conclusions on this, stating that the proposals would need to be discussed further with the relevant professional bodies before they could be formally approved and adopted.
LETTER OF RESPONSE
The letter of response should address the issues fully, including identification as to whether delegated authority applies under the ABI’s Claims Handling Guidelines, additional to the name of the coordinating insurer and reference. The Working Party places emphasis on the importance of the ABI Guidelines and the interaction between defendants and handling insurers. Indeed, the Guidelines were published as part of the report in the hope that it would encourage more insurers to sign up to them and, for those that have already signed up to them, to abide by them more strictly.
The new Letter of Claim will mean that defendants will have to consider all of the information available and only make requests for further information if material information is missing. It is hoped that this will successfully narrow the issues between parties to litigation, such that genuine disputes will be reduced.
Templates for both the new Letter of Claim and Letter of Response can be found in appendices B and C.
In terms of enforcement, the Working Party stated that they do not advocate the production of a separate protocol for NIHL claims, but the recommended procedural changes would, however, have to carry an appropriate level of force. In particular, they state they are not yet convinced that the creation of an electronic portal for such claims is either necessary or likely to lead to improvements in process and behaviour.
The report concludes that, whilst an accreditation model or agreed minimum standard for experts should be adopted for NIHL claims, the machinery of MedCo is unlikely to be the right way of doing this in its present state. This is because the MedCo system only introduced its accreditation process for individual experts on 1 June 2016, just over a year ago. The quality controls, such as peer review and audit, come into play at the point of renewal, which is at or after 12 months, so their effectiveness remains unknown.
Whilst work has been started on the accreditation of experts, as mentioned above, the Working Party agreed that this would need the input of relevant professional bodies and, as such, was beyond the scope of this report.
REPEAT AUDIOGRAMS AND OBTAINING DEFENDANT MEDICAL EVIDENCE
The aim of attaching an audiogram from a ‘qualified audiologist’ to the Letter of Claim, as mentioned above, is to avoid the need for requests for retesting, if possible.
Both the defendant and claimant representatives agreed that:
- An audiogram of adequate quality would largely eliminate the need for retesting; and
- Issues with the need for retesting should be a matter for the properly qualified audiologist, who administered the hearing test, provided that the appropriate criteria are set.
Therefore, as it is anticipated that defendants will only request a repeat audiogram in particularly complex cases, it was agreed that these claims should be excluded from the fixed costs regime (as outlined in edition 196).
In relation to obtaining own medical evidence, which, according to the Working Party, will only be needed when liability is disputed, the Working Party advocates that, as part of a wider implementation of standard directions for cases within the fast track, there should be a preference in NIHL claims for defendants putting questions to the claimant’s expert under CPR Part 35, as opposed to obtaining own evidence. Nonetheless, the report acknowledges that this should be decided by courts on an individual case-by-case basis.
The report highlights that limitation is often a live issue in litigated NIHL claims, which is usually tried as a preliminary issue. However, they state that this may result in a process which involves more work and higher costs.
The Working Party were unable to agree on whether a preliminary issue trial on limitation would take a claim out of the fixed cost regime and concluded that the Civil Procedure Rule Committee would need to consider this point.
However, the claimant and defendant representatives were able to agree that if preliminary trials on limitation are included within the fixed costs regime, then, in order for this to work, there should be tighter controls on the criteria applied when ordering this type of trial. It was argued that, at present, there is an inconsistent approach taken by the judiciary, meaning that these trials may be ordered without the request of either party, or alternatively, without a hearing. Therefore, it was agreed that:
‘Any request for a preliminary trial on limitation should be made within the Allocation Questionnaire. The defendant must identify the evidence and legal argument that give the defendant a real prospect of success on the issue of limitation and must demonstrate that there is a prima facie case for a trial of any preliminary issue’.
This differs from the report of Jackson LJ, which went further and stated that:
‘The costs of any preliminary issue trials should be recovered separately. Having said that, absent special circumstances, I strongly discourage the ordering of preliminary issue trials in the fast track. In some parts of the country, apparently, it is the practice to try limitation as a preliminary issue in ELD claims’.
The report recommends that these proposals be contained in some form of agreement/protocol, ideally as an annexe to the Occupational Disease and Illness Protocol.
The recommendations in this report will be considered by the Government as part of the forthcoming wider review of fixed costs.
The full report and appendices can be accessed here.