BC DISEASE NEWS A MONTHLY DISEASE UPDATE - IRLA
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September 2018 Edition BC DISEASE NEWS A MONTHLY DISEASE UPDATE
CONTENTS
PAGE 2
Welcome
PAGE 3
Welcome
Using 6 kHz as an Anchor Point: Percy v
Northern Gas Networks & 2 Ors. Welcome to the 245th edition of BC Disease News.
(Newcastle County Court, 15 June 2018)
This week, we report on a case, in which BC Legal was successful in removing
PAGE 5
QOCS protection. The claimant in Smith v Baird Clothing Menswear Limited & Ors
Double Compensation and an (2018) was dishonest in bringing her NIHL claim.
Application for Strike Out and QOCS
Disapplication: Smith v Baird Clothing Further, we examine the Joint Liquidator report of Asons Solicitors, which intimates
Menswear Limited & Ors (2018) that the claimant personal injury firm was not only engaging in tax avoidance
schemes, but was also sold to Coops Law without formal valuation.
PAGE 6
Elsewhere, we present key industrial disease statistics from the latest IRN UK
Judgment in Default, Late Service of
Defence and Relief from Sanctions: Personal Injury Market 2018: Market Trends Report.
Billington v Davies & Anor [2016] EWHC
1919 (Ch) Finally, in science-relate news, we report on possible causes of mesothelioma
development in children and also assess whether a predisposition to stress is
High Court Refuses Permission to Appeal triggered by gender.
Fundamentally Dishonest Claim
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
PAGE 7
FOIL Weighs in on QOCS in LASPO Review As always, warmest regards to all.
Joint-Liquidator Report Accuses Asons of
Entering into Gold Bullion Tax Avoidance SUBJECTS
Scheme
Anchor Points and Bulge Calculations – Strike Out, QOCS Disapplication and
PAGE 8
Dishonest NIHL Claim – Late Defence, Extensions and Relief from Sanctions –
Fundamental Dishonesty and Strike Out – LASPO Review and QOCS – Asons,
2018 IRN Report – Key Industrial Disease
Statistics Coops and Tax Avoidance – IRN Report Industrial Disease Statistics – Gender and
Occupational Stress – NIHL and Hearing Protection Use – Children and
PAGE 10 Mesothelioma – Lung Cancer and Farmers – NHL and NHL Athletes and CTE.
How Are Men and Women Affected
Differently by Stress at Work?
PAGE 11
12% Increase in Canadian Worker NIHL
Cases as Hearing Protection Uptake
Increases
PAGE 12
14-Year Old Briton Diagnosed with
Peritoneal Mesothelioma
Farmers May Be at Risk of Lung Cancer
from Crop-Related Tasks
PAGE 13
No Evidence of Early-Onset Dementia in
Retired Contact Sport Athletes
PAGE | 2
the 2015 audiogram, hearing losses were
Using 6 kHz as an calculated as 42.0 dB. His hearing loss was
Initially, Mr Johnson used the 8 kHz anchor
point in his analysis of bulging in the 2013
Anchor Point: Percy v significant and he had mild tinnitus. audiogram.
Northern Gas Networks Although R1 and R2 of the CLB Guidelines In the 2013 audiogram, the claimant’s HTL
were satisfied in both audiograms, the at 8 kHz was 85 dB. Whereas, in the 2015
& 2 Ors. (Newcastle medical experts were in disagreement over audiogram, no HTL could be recorded
the correct anchor points to use when (inferring maximum HTL of 100 dB tested).
County Court, 15 June undertaking bulge analysis of audiograms,
2018) i.e. compliance with R3(a). After having reviewed the 2015 audiogram,
he revisited his calculations and
Paragraphs 7.1 and 7.2 of the CLB proceeded to use 6 kHz as the upper
Case judgment has recently been handed Guidelines state that for R3(a) to be anchor point. His change of mind was
down in Percy v Northern Gas Networks & 2 satisfied: provoked by the ‘precipitous drop-off’ of
Ors. (Newcastle County Court, 15 June more than 15 dB at 8 kHz between the
2018). His Honour Judge Freedman ruled ‘Evidence of probable presence of NIHL is original audiogram and the later
on the correct interpretation of the Coles considered to be present if there is a audiogram. Mr Johnson also observed a 21
Guidelines, in respect of bulge analysis, for downward notch in the audiogram in the 3- dB difference between 6 and 8 kHz on the
the purpose of ensuring correct diagnosis 6 kHz range that is large enough to be 2013 audiogram, where the expected AAHL
of NIHL. identifiable with a degree of confidence ... (50th percentile) was 9 dB.
Evidence for NIHL is also provided on the
The 73 year-old claimant alleged that he audiogram by sufficiently large relative Altered anchor points for avoidance of
had been exposed to excessive noise bulge downwards and to the left in the 3-6 Coles calculation distortion yielded a
during his employment with all 3 kHz range… in a considerable portion of ‘Coles-compliant’ bulge in the 2013
defendants. However, the claim against the NIHL cases, especially after the age of audiogram.
2nd defendant was dismissed. about 50 years, the characteristic high
frequency notch is missing. This is usually While Mr Parker accepted that bulges
In his employment with the 1st defendant, due to the additional presence of high could be discerned using a 6 kHz upper
between 1979 and 1987, he worked as a frequency impairment of other causation anchor point, he saw no justification, in this
fitter. In his employment with the 3 rd … Typically, that has the effect of instance, for departing from the standard
defendant, at various times during the converting a noise-induced audiometric approach, i.e. the use of 8 kHz as the upper
1980’s and 1990’s, he worked as a shot notch into a bulge … In other cases it may anchor point could still provide a reliable
blaster. reduce the notch to a size (e.g. 5 dB) that is interpretation. He also argued that the CLB
not significant as a notch. Nevertheless, it Guidelines does not advocate comparison
The 1st and 3rd defendants conceded will add to the size of a potential bulge and between audiograms to diagnose NIHL.
breach of duty. should be examined closely to see if it
classifies as a bulge…’ Counsel for the claimant argued that it was
Instructed engineer, Mr Worthington, found ‘illogical to ignore the second, later
that it was ‘highly likely that the daily noise When calculating notching / bulging, audiogram, particularly where there is
exposure level was well in excess of 90 upper and lower anchor points are used. already evidence of disproportionate high-
dB(A) LEP,d during his employment with the frequency losses’. To do so would constitute
1st and 3rd defendants’. If the claimant’s expert was deemed to a failure ‘to accord proper weight to the
have used the appropriate anchor points, significant changes which occurred
In respect of medical evidence, Mr Parker bulges in both audiograms were ‘Coles- between 2013 and 2015’.
was instructed for the defendants, while Mr compliant’. If, however, the defendant
Johnson was instructed on behalf of the expert’s different anchor points were more HHJ Freedman concluded, on his
claimant. The claimant’s hearing was suitable, they were not ‘Coles-compliant’. interpretation of Note 10, that:
represented on 2 audiograms, one
produced in 2013 and another, produced The Anchor Point Issue ‘… in relation to the ‘precipitous drop-off’
in 2015. point … it is not being contemplated that 6
Generally, 8 kHz is used as the upper kHz can be used to assess whether there is
According to the 2013 audiogram, the anchor point when calculating the size of a bulge in 2013, when there has been
claimant’s mean bilateral hearing threshold notches/bulges. There are, however, diminution in values at 8 kHz over the
level (HTL) across 1-3 kHz was 33.6 dB. Over certain circumstances when 6 kHz is the ensuing two years’.
the same frequency range, according to legitimate upper anchor point.
PAGE | 3
The judge went on to conclude that at comparative values as opposed to undertake a bulge analysis ... to determine
‘exceptional’ disparity between HTL’s at 6 absolute values’. There was a recovery on the presence or otherwise of a bulge,
and 8 kHz could justify a departure from an both sides (3 and 6 kHz) of the calculated hearing threshold levels should be
8 kHz anchor point. Using the 25th bulge values at 4 kHz, which he argued was compared “relative” to the comparison
percentile, the difference between AAHL all that mattered. values for age-related hearing loss at
and actual loss was 13 dB and even though corresponding frequencies ... this does not
this was deemed to be ‘significant’, it was Claimant counsel submitted that the suggest a comparison with adjacent
not enough to depart from the usual anchor identification of a notch requires the frequencies in the bulge line ... The
point. comparison of HTL’s with ‘adjacent Guidelines are comparing the claimant’s
thresholds’ and that the same should apply hearing threshold levels with his predicted
A key factor of the judge’s ratio on this issue to bulge calculations. age hearing loss to determine if there is a
was that the claimant’s expert shifted his difference of at least 10db at the
opinion retrospectively, despite feeling The defendants’ expert contested this frequencies which are usually affected by
able to interpret the 2013 audiogram using assertion, stating that recoveries at noise’.
8 kHz as the upper anchor point at the time. ‘adjacent thresholds’ are only relevant if
In any event, the CLB Guidelines do not there is a notch and not if there is a bulge. Accordingly, it was HHJ Freedman’s view
explicitly refer to comparisons of that Mr Parker’s approach reflected the
audiograms produced at different times. HHJ Freedman, again, preferred the correct interpretation and application of
analysis of Mr Parker, reasoning, at the Guidelines.
Mr Parker was therefore right to use 8 kHz as paragraph 31:
the upper anchor point. Conclusion
‘… it is clear that to determine the presence
Having ascertained the correct or otherwise of a bulge, hearing threshold On the balance of probabilities, NIHL was
methodology for calculating levels should be compared “relative” to the not established and the claim against the
bulges/notches, it was necessary to comparison values for age-related hearing 1st and 3rd defendants was dismissed.
consider whether ‘Coles-compliant’ bulges loss at corresponding frequencies. As
were present. Mr Cooper points out, this does not suggest A factor of potential influence, during the
a comparison with adjacent frequencies in course of the trial, was that oral expert
The Bulge Calculation Issue the bulge line, in the manner undertaken evidence was concurrently adduced,
by Mr Johnson. The Guidelines are otherwise known as expert ‘hot tubbing’.
Under paragraph 7.6 of the CLB Guidelines, comparing the claimant’s hearing
it states that: threshold levels with his predicted age We previously reported, in edition 211 of BC
hearing loss to determine if there is a Disease News (here), that the Civil
‘A high-frequency bulge in the air difference of at least 10db at the Procedure Rule Committee (CPRC) had
conduction audiogram that is sufficiently frequencies which are usually affected by amended Practice Direction 35 to permit
large to be indicative of the probable noise’. the court to direct ‘experts from like
presence of NIHL is defined as follows. Such disciplines to give their evidence and be
a bulge is present if the HTL at 3 and/or 4 As such, ‘corresponding frequencies’ does cross - examined on an issue - by - issue
and/or 6 kHz, after any due correction for not equate to ‘adjacent frequencies’. If this basis, so that each party calls its expert or
earphone type…is at least 10 dB greater was intended by the CLB Guidelines, then it experts to give evidence in relation to a
relative to the comparison values for age- would have been ‘overtly stated’. particular issue, followed by the other
related hearing loss at corresponding parties calling their expert or experts to give
frequencies. If an average of two or more When asked, Mr Parker answered that he evidence in relation to that issue …’
HTL measurements can be used, the 10dB was unaware of any other expert carrying
figure may be slightly reduced… out a bulge analysis in the way that Mr Through ‘hot-tubbing’, if an expert is more
Occasionally, the bulge extends to involve Johnson purported and HHJ Freedman convincing, it is arguably more visible than
2 kHz or even 1 kHz’. remarked that he was struck by Mr if witnesses are questioned on a traditional
Johnson’s unsatisfactory response to the basis.
Mr Johnson argued that there was a ‘Coles- same question.
compliant’ bulge, irrespective of Mr Parker’s
preferred anchor point analysis, as the ‘In short, the guidance which has been
bulge at 4 kHz was at least 10 dB greater given is that if there is no notch, it is
than those at 3 or 6 kHz. Although ‘notching’ necessary to see if it has been ‘converted’
at 4 kHz did not meet the 10 dB criterion, he into a bulge. In other words, it is only if there
maintained that ‘it was appropriate to look is no notch that it is then necessary to
PAGE | 4
all-inclusive settlement. The Claimant later court, specifically to consider whether a
Double Compensation denied receiving compensation, but this wasted costs order should be applied to the
and an Application for was irrelevant, as evidence of her earlier costs of the hearing, on 20 April 2018.
claim and her dishonesty was exhibited in
Strike Out and QOCS court documents. Following the hearing, the Claimant
personally made an offer to the Defendants
Disapplication: Smith v In January of 2018, BC Legal, instructed by of £10,000 for their costs incurred to-date,
the 2nd Defendant, made an application on in an attempt to avoid having to attend the
Baird Clothing behalf of all 4 Defendants, seeking: later hearing, in June of 2018. However, 24
Menswear Limited & Ors 1. That the Claimant’s claim against
hours after the offer was made, it was
inexplicably withdrawn. No further offers
(2018) all the Defendants be struck out were made before the relisted hearing, on
subject to CPR 3.4(2)(b) as the 25 June 2018.
proceedings are an abuse of
BC Legal has recently been successful in
process and further due to the In the interim, the court ordered the
removing QOCS protection in a (NIHL) claim
Claimant’s dishonesty. Claimant’s Solicitors to file a witness
where the Claimant sought damages for
2. The Claimant do pay the statement confirming what steps had been
injuries which had already been
Defendants’ costs of and taken in the 3 month period between the
compensated 7 years prior to service of the
occasioned by this application. filing of the Defendants’ application and
Claim Form.
3. The Claimant do pay all of each the Claimant’s Notice of Discontinuance
Defendants’ costs of the entire being filed; why this was left until the day
The Claimant’s Solicitors were instructed in
claim. before the hearing? The ensuing statement
2015. In 2017, proceedings were served
4. That Qualified One Way Costs revealed that only 1 letter had been sent
on the Defendants, along with the Letter of
Shifting be disapplied in this matter and 1 phone call had been made, prior to
Claim. In the Particulars of Claim, medical
under CPR 44.15(b) that the April 2018. The Claimant denied receiving
report and Part 18 responses, the Claimant
proceedings are an abuse of the the letter.
claimed to have only attributed her hearing
Court’s process and further under
loss to excessive occupational noise
CPR 44.15(c)(i) due to the conduct On 25 June 2018, the adjourned strike out
exposure in 2015.
of [the] Claimant. hearing was scheduled to take place.
Upon arrival at the court, the Claimant
Although the insurers on risk for the
At 3.30pm on 19 April 2018, the day before reinstated her £10,000 offer to circumvent
Defendants were unaware of the claim at
the application hearing, the Claimant filed the hearing, but this was not accepted. In
the pre-litigation stage, once the
a Notice of Discontinuance. In witness response, the Claimant made an increased
proceedings were received, their records
statements filed that same afternoon, the offer of £13,000. This was accepted by the
showed that the Claimant had pursued an
Claimant stated that she had ‘forgotten Defendants, on the proviso that the order
identical claim, in 2010, against 2 of the 4
about the earlier claim’ when she specifically stated that the costs order was
Defendants to the present claim.
completed the Part 18 replies and signed enforceable and that the Claimant had no
the Particulars of Claim. It was clear that QOCS protection. The desired order was
What is more, even though details of the
the Claimant’s Solicitors had no knowledge subsequently approved by the Judge.
earlier claim were missing from the
of the earlier claim until the application was
Claimant’s medical records, archived
made, as they directly questioned the As such, there was no specific finding of
claim documents revealed that the
Claimant on this issue and she denied abuse of process or dishonesty, which was
Claimant had undergone a medical
bringing a claim in the past. sought in the original application. However,
examination and hearing test in 2010 and
the costs order agreed at the hearing
the Claimant’s date of knowledge was
On the day of the hearing, the Defendants made specific reference to its enforcement
traced back to 2005.
made a joint application to adjourn the and also referred to the claimant’s inability
hearing and stated their intention to make to benefit from QOCS protection. Given
It was confirmed by the 2010/2011 claim
a further application to set aside the Notice that the Claimant is now personally liable
documents and the Solicitors that dealt with
of Discontinuance and continue with the for £13,000 of costs, arising out of a claim
her initial claim in 2011, that the Claimant
original application to strike out the claim which yielded £1,350 in damages in 2011,
received a costs inclusive settlement of
and recover costs. The matter was the outcome in Smith should serve as a
£6,000, in respect of her earlier claim. The
adjourned to a further hearing, on 25 June deterrent to the Claimant bringing more
Solicitors that dealt with the initial claim
2018, wherein the Claimant was ordered to spurious claims in future.
advised the Claimant’s newly instructed
personally attend and give oral evidence.
Solicitors that the Claimant had received
The costs position was reserved with the
£1,350 in compensation, out of a £6,000
PAGE | 5
was set to hear the default judgement
Judgment in Default, Late Service of Defence and application hearing. As such, Master
Relief from Sanctions: Billington v Davies & Anor Pickering found that the 1st defendant’s
failure was ‘sufficiently serious or
[2016] EWHC 1919 (Ch) significant’.
Judgment has only recently been handed down in the High Court case of Billington v Davies Further, he could not find ‘good reason’ for
& Anor [2016] EWHC 1919 (Ch). Here, the 1st defendant was unsuccessful in running an the failure and, taking into account ‘all the
argument that ‘an application for judgment in default of a Defence will automatically be circumstances of the case’, Master
defeated whenever a defendant files a Defence – however late’. Pickering ruled that this was not an
‘appropriate’ case for exercising his
Proceedings occurred as follows. The claimant issued an application for judgment in discretion to extend time for the filing and
default of filing a defence. However, 1 day before the listed application hearing (the judge service of the defence.
recused and the hearing did not go ahead), the 1st defendant filed and served a defence.
An application for an extension of time for the service of the defence was subsequently Full text judgment can be accessed here.
issued. This application was heard before Master Pickering.
High Court Refuses
The Judgment in Default Issue
Permission to Appeal
Pursuant to CPR 12.3:
Fundamentally
Dishonest Claim
At Birmingham County Court, a circuit
judge gave judgment on an unreported
case, finding fundamental dishonesty. The
claimant has since been unsuccessful in
bringing an appeal.1
The claimant suffered a ‘significant’ ankle
The defendant sought to interpret that: ‘on a literal reading of CPR 12.3(2) by filing and sprain when he stepped in a pothole, whilst
serving his Defence – albeit out of time – it follows that the pre-condition in CPR 12.3(2)(a) is running along a public footpath. This left
no longer met and that as a result default judgment can no longer be sought’. him ‘functionally unstable’ and caused him
to suffer ‘subsequent falls and further
However, this was rejected. Where CPR 12.3 refers to a ‘defence’ Master Pickering reasoned injuries’. Consequently, the claimant
that this must refer to a defence which has ‘either been served within the time permitted by underwent an operation in March of 2017,
the Rules or in respect of which an extension of time has been granted. Where a Defence sustaining financial losses and needing
is served late, unless and until an extension has been granted, a document purporting to future care.
be a Defence is not in fact a Defence for the purposes of CPR 12.3(2)(a)’.
The defendant Borough Council admitted
Accordingly, it was necessary to consider whether the 1st defendant could be granted an breach of duty pre-issue, leaving the
extension for service of the defence. The case of Sayers v Clarke Walker [2002] 1 WLR 3095 decision on liability subject to factual and
established that the correct test was akin to the test for relief from sanctions. medical causation.
Relief from Sanctions for Failure to File a Defence? Following investigations, undertaken by the
defendant’s solicitors, it was uncovered that
The breach, in this instance, had been the failure to serve a defence for just over 4 months. that the claimant had not been prevented
from playing rugby, participating in 2
Master Pickering considered the 3-stage test established in Denton v TH White Ltd [2014] 1 triathlons, 3 Iron Man events, a half
WLR 3926. marathon and a full marathon.
The judge described the length of delay as being ‘very late service’. He also noted that the In light of this information, the defendant
1st defendant did not issue an application to extend time until prompted by the Master who sought a ruling of fundamental dishonesty
against the claimant.
PAGE | 6
Her Honour Judge Truman, at the 1st Act (LASPO) 2012 is under post- separately with HMRC, but revealed that
instance trial, initially stated that surgery implementation review. the company may have had historical
would still have been the appropriate involvement in other tax avoidance
option, regardless of whether ‘the claimant This week, The Forum of Insurance Lawyers arrangements.
had been wholly truthful from the outset’ (FOIL) has responded to the initial
about the extent of his ankle symptoms. As assessment, published by the Ministry of The ‘gold bullion scheme’ works, as follows:
such, the course of physiotherapy and Justice (MoJ) in June. A company purchases gold from a
claim for loss of earnings arising out of the 3rd party gold supplier for its
ankle surgery were ‘reasonable’. Damages Despite admitting that the objectives of directors / employees using
plus interest were calculated at a figure of LASPO ‘have to a large extent’ been organisation funds.
£71,992. achieved, FOIL remarked that instances of In return, the directors / employees
unmeritorious litigation in industrial disease agree to a theoretical obligation
However, HHJ Truman concluded that the claims have increased because of QOCS: to pay back the purchase price of
claimant had made a ‘conscious attempt the gold (plus indexation) to the
to inflate the value of his claim’ (both ‘Some claimant firms have developed a trustees of the EBT.
general and special damages). This finding business model for NIHL [noise-induced However, the directors /
was based on ‘significant omissions’, hearing loss] claims based on the fact that employees immediately sell the
evident from correspondence with ‘treating claimants with low incomes are exempted gold for cash. The proceeds of this
physicians’ and ‘medico-legal experts’, as from court fees, which together with QOCS, transaction clear the company’s
well as ‘two signed witness statements’, ‘part removes the risk to the claimant and the debt to the 3rd party gold supplier.
18 replies’ and his ‘schedule of special legal adviser to such a degree that almost In exchange, the directors /
damages’. The claimant had ‘deliberately any case is worth running on the basis that employees are creditors to the
misled and signed false statements of truth’. the insurer may be tempted to make a director’s loan accounts. The
nuisance payment in settlement’.2 director’s loan accounts record
The claimant’s dishonesty went to the ‘heart ‘money taken from ... [a] ...
of the claim’ and claimant counsel’s The review is ongoing and has been the company that isn't either: A salary,
analogy that the dishonesty was ‘akin to a subject of Governmental delay in past dividend or expense repayment’.
creeper surrounding a tree rather than the months, as discussed previously in edition In this way, companies are
tree itself’ failed. 228 of BC Disease News (here). relieved from corporation tax
deductions and avoid income tax
Accordingly, the claim was dismissed.
Joint-Liquidator Report / national insurance contributions.
Post-trial, the claimant sought permission to Accuses Asons of HMRC advised Asons, prior to entering into
appeal. However, Mr Justice Martin liquidation, that the impact of invalidating
Spencer refused, on the basis that HHJ Entering into Gold the scheme was ‘under review’ and, in
Truman was ‘plainly’ correct in reaching her November 2017, the General Anti-Abuse
decision. This was a quantum only trial and Bullion Tax Avoidance Rule (GAAR) Panel found that schemes
the ‘extent of the claimant’s recovery went involving EBTs and gold bullion were
to the heart of the issue before the court’. Scheme ‘abnormal and contrived’.5
The claimant has chosen not to pursue his Claimant personal injury firm, Asons The joint liquidator’s report also
appeal further. Solicitors, entered into liquidation on 24 commented on the sale of Asons, owned
March 2017 and the SRA subsequently by Kamran Akram, to Coops Law, run by
Even though the claim for physiotherapy intervened on 30 March 2017. brother, Irfan Akram.
and loss of earnings was genuine and
inevitable, the claimant’s dishonest A report has recently been filed at In February 2017, Asons Solicitors’ work in
intention to inflate the damages was Companies House by the joint liquidator of progress (WIP) had a value of circa £11
enough to successfully strike out the claim. Asons Solicitors Limited.3 million and work in book debts of £3 million,
for the period ending 30 November 2016.
This revealed that the business established
FOIL Weighs in on ‘The Asons Solicitors Limited Employee However, Asons was sold to Coops Law for
QOCS in LASPO Review Benefit Trust’ (EBT), in 2014, and became
involved in ‘the apparent purchase of gold
£229,534 on 23 March, 1 day before Asons
was placed into liquidation. As no formal
bullion to the value of £2m through a valuation of the goodwill, WIP, or book
At present, part 2 of the Legal Aid, convoluted chain of transactions’.4 The joint debts was undertaken prior to the
Sentencing and Punishment of Offenders liquidator is discussing the matter
PAGE | 7
associated party transaction, the joint liquidators are ‘investigating concerns raised by creditors that the transactions did not take place at arm’s length and for full value’. Coops was shut down by the SRA in June 2017. 2018 IRN Report – Key Industrial Disease Statistics In July 2018, IRN Research, the market research consultancy, released a report: UK Personal Injury Market 2018: Market Trends Report.6 In this article, we select the relevant employers’ liability disease data, which was presented within the publication. Firstly, there has been an especially rapid fall in disablement benefit claims for prescribed diseases. The table below displays the numbers of claims received by the Industrial Injuries Scheme between 2012 and 2017. From the graph below, a clear downward trend can be observed, despite a brief 4-year period (2013 – 2016) of claims stability. Although the number of claims decreased by 13% over the past year, there has only been a 20% fall over the 6-year period since 2012. PAGE | 8
There are over 70 prescribed diseases covered by the Industrial Injuries Scheme. Broken down by disease type, the number of claims pursued between Q3 of 2015 and Q3 of 2017 are shown in the table below. Sorted by highest to lowest claims numbers, it is clear that in both years, the prime diseases resulting in claims are pneumoconiosis and diffuse mesothelioma. In fact, in both years, all 9 listed diseases retained the same ranking, in terms of the proportion of claims received. PAGE | 9
It is apparent, from the bar chart above, that the number of claims for each disease decreased last year. The biggest drop was seen in
occupational deafness claims, which shrunk by 21.2%. By contrast, the smallest drop was seen in diffuse mesothelioma claims, which
decreased by just 4.0%.
With the exception of the first year of Portal Claims, the number of EL disease claim settlements reached under the Claims Portal (year
ending April) has lessened. Since 2015/16, settlements have fallen by 54.3%. In the same time period, general damages have been cut,
on average, by 4.0%.
How Are Men and Women Affected Differently by Stress at Work?
In April of 2018, the results of a study into occupational stress were published in the Annals of Work Exposures and Health (AWEH). 7
Comparisons were made between the sexes, including comparisons between actual results and pre-conceived expectations, e.g. that
the relationship between ‘low co-worker support’ and ‘low supervisor support’ would be stronger in women.
A team of researchers at the Institute for Work and Health (IWH), in Canada, analysed 25,000 individuals who took part in the 2012
Canadian Community Health Survey.
The effect of psychosocial work factors on stress levels were measured. The following work factors were investigated:
Low job control;
Low job security;
Low co-worker support;
Low supervisor support; and
High job strain (low job control AND high job demands).
Women reported lower ‘job control’, higher ‘job strain’ and higher ‘co-worker support’ than men, but both sexes had similar levels of ‘job
security’ and ‘supervisor support’.
Corresponding stress level findings were separated by gender and by stress type:
‘Work stress’, meaning stress caused by a job or business; and
‘Life stress’, caused by life generally.
Observable differences between male and female stress levels can be seen in the table below, where:
() indicates no significant effect;
() indicates higher stress levels; and
() indicates lower stress levels.
PAGE | 10Men are statistically proven to be more employee, which is attributable to work, is
socialised to place a priority on work than reasonably foreseeable.
12% Increase in
women. However, more reports of ‘work Canadian Worker NIHL
stress’ and ‘life stress’ were reported among As discussed in edition 42 of BC Disease
women than among men in this study. Thus, News (here), the Court of Appeal Cases as Hearing
any expectations that the link would be established 16 guiding principles of
stronger in men than in women were occupational stress, in Hatton v Sutherland Protection Uptake
refuted, as the link was strong in both sexes. [2001] EWCA Civ 76. This was subsequently
upheld at the House of Lords in Barber v Increases
Moreover, ‘low co-worker support’ and Somerset County Council [2004] UKHL 13.
increased ‘work stress’ was a common In a Canadian study of the oil and gas
relationship to both sexes. Foreseeability depends upon the drilling sector in the state of British
characteristics of the employee, signs of Columbia, signs of NIHL in workers
One of the most noticeable differences impending harm and the nature and extent increased by 12% between 2012 and
between the sexes was the strong link of employment undertaken by the 2017.8 This upward trend appears to
between ‘low supervisor support’ and claimant. The standard applied is that of a contradict data on the use of foam earplug
increased stress (‘work’ and ‘life’) in women. reasonable employer. hearing protection, which increased by 4%
By contrast, ‘low supervisor support’ was not (to 98%) in the same 5-year period.
significantly linked with stress in men. If it is established that a psychiatric injury is
foreseeable, the court will consider steps In 2012, NIHL symptoms were recorded in
Unexpectedly, men with ‘low job control’ that an employer could and should have 33% of employee hearing tests, increasing
had low ‘life stress’ levels. The same taken. These steps should do some good. to 45% in 2017. This equated to 294
relationship did not exist among women. However, there will be no breach if the only employees, of which 65% (194) were under
Further, women with ‘high job strain’ were effective step is dismissal or demotion and the age of 35.
correlated with higher ‘life stress’. The same breach is unlikely if confidential advice,
could not be said for men who took part in counselling, or treatment services are WorkSafeBC occupational audiologist,
the study. available. Nevertheless, the cases of Daw v Sasha Brown, has warned that employers
Intel Corp [2007] EWCA Civ 70 and Dickins will not prevent the risk of NIHL onset in its
Study author, Kathy Padkayeva, said: v O2 plc [2008] EWCA Civ 1144 show that staff simply by supplying hearing protection
the employer’s duty cannot always be and ensuring that it is worn:
‘This builds on research elsewhere discharged by offering counselling
suggesting that, as a result of both social services; sometimes managerial ‘The ear plugs or ear muffs might be the
and biological (physiological and intervention is necessary. wrong size, inserted or worn incorrectly, not
hormonal) differences, women are more worn for long enough, or they may not be
likely to seek out and use social support in The latest Canadian study shows that providing enough protection for the
response to stress. The theory is that a “tend- psychosocial factors may affect stress in duration and intensity of noise exposure’.
and-befriend” response is more likely to men and women differently. Future
prevail among women than the well-known complimentary research may allow According to the Control of Noise at Work
“fight-or-flight” response’. employers to better foresee harm and Regulations 2005, which came into force
prevent the risk of injury and also provide on 6 April 2006, if Lower Exposure Action
Ms Padkayeva hopes to see other studies more effective steps for discharging Value (LEAV) [80 dB(A) Lep,d] is reached,
confirm the validity of patterns observed in employers’ duty of care. employers are under a duty to strongly
this study. recommend the wearing of hearing
protection to conserve hearing, but the
It is important that employers take action to wearing of hearing protection is optional.
reduce stress in the workplace to avoid However, if the employee wears hearing
liability in occupational stress claims. protection, the employer has to provide
proper and adequate protection and
Under common law, employers owe a duty training on how to use it correctly, maintain
of care to employees. This includes the and replace it.
provision of a safe place of work. In
occupation stress claims, the key issue is If the Upper Exposure Action Value (UEAV)
whether psychiatric harm to the particular [85 dB(A) Lep’d] is reached, employers must
provide and enforce the wearing of proper
and adequate hearing protection,
PAGE | 11supported by signage. Further, training on unaware as to the cause of her condition. To-date, Miss Greening has received 4
how to correctly use, maintain and replace Results of her biopsy are travelling around rounds of chemotherapy treatment, without
protection, must be provided. the world for expert examination. success. Since a laparoscopy revealed
that surgery was not an option, she is
The LEAV and UEAV replaced the 1st (85-89 News of Miss Greening’s mesothelioma hoping to participate in future clinical drug
Lep,d) and 2nd (90+ Lep,d) Action Levels. coincides with the publication of an (immunotherapy) trials.
These were founded in the Noise at Work Australian study, which found that asbestos-
Regulations 1989, which came into force related mesothelioma risk differs among Miss Greening’s case of peritoneal
on 1 January 1990. adults and children – and that children are mesothelioma is rare, which is why studies
less susceptible.13 of mesothelioma in children often take the
It is clear from this research, therefore, that form of individual case studies.18 If, as her
while employers may have improved their Participants in this study had experienced family alleges, her mesothelioma is not
enforcement of hearing protection in the non-occupational exposure to crocidolite asbestos-induced, this may suggest that
workplace, they may not be simultaneously (blue asbestos) at the Wittenoom mine, in mesothelioma can pass through
checking that hearing protection is Western Australia, either as adults or as generations congenitally, or add support to
properly fitted and effective. children. the argument that mesothelioma is caused
by an as-yet-unknown factor.19
This is necessary, if an employer wishes to Those exposed as adults were more likely to
rely on a breach of duty defence to a NIHL have been diagnosed with mesothelioma
claim. than those exposed as children. The
Farmers May Be at Risk
diagnosis rate among children and adults of Lung Cancer from
was 76.8 cases per 100,000 people and
14-Year Old Briton 121.3 cases per 100,000 people, Crop-Related Tasks
Diagnosed with respectively. More cases in children may
appear in future, however, if age affects A new report, using data from the French
Peritoneal the latency period of mesothelioma AGRIculture and CANcer (AGRICAN) study,
development. alludes to associations between lung
Mesothelioma cancer and several crop-related tasks.20
In edition 229 of BC Disease News (here), we
Macie Greening, a 14-year old girl from produced a feature article on non- Agricultural workers are exposed to a range
Collumpton, in Devon, has become the 9th asbestos-related causes of mesothelioma. of substances that can cause lung
child in the UK and the 20th child in the world We discussed, among other causes, the diseases. These include pesticides, diesel
to develop peritoneal mesothelioma.9 potential role of the BAP-1 (BRCA1- exhaust fumes, moulds and dust.
associated-protein-1) gene in increasing
Peritoneal mesothelioma is 1 of 4 types of susceptibility to cancer. BAP-1 is found in an The participants in this study were affiliated
mesothelioma: pleural (lung lining); estimated 70% of mesothelioma cases and with the agricultural health insurance
peritoneal (abdominal lining); pericardial this may infer that mesothelioma is scheme. Between 2005/06/07 (enrollment
(heart sac); and testicular (testicular lining). hereditary.14 on the study) and 2013, there were 897
In the UK, pleural mesothelioma cases newly reported lung cancer cases.
account for 90-95% of mesotheliomas, What is more, in edition 213 of BC Disease
while peritoneal mesothelioma cases News (here), we reported on a study, which Questionnaires were completed on
account for 5-10%.10 concluded that 38% of pleural exposures to livestock and crops, as well as
mesotheliomas in females had an other lifestyle factors. Gender, smoking
According to Asbestos.com, 300 cases of ‘unknown’ or ‘not probable’ cause. The history, and exposure to cattle and horses
mesotheliomas have been diagnosed in same was observed in 47% of peritoneal was accounted for by the researchers.
young adults, children and infants.11 mesotheliomas in females.15
Winegrowers had a 27% increased risk of
The latency period (time between exposure Asbestos.com lists radiation exposure (e.g. adenocarcinoma (cancer that forms in
to asbestos fibres and onset of the to treat a Wilms’ tumour early in life16), mucus-secreting glands21), though this
condition) for malignant mesothelioma can isoniazid (powerful antibiotic drug) use finding could have been due to chance.
be as short as 10 years, or as long as 50 during pregnancy, and a family history of
years, but the average latency period is 35- mesothelioma as potential causes of Moreover, the risk of small cell lung cancer
40 years.12 Miss Greening’s family does not mesothelioma in children, where there is was more than doubled among those who
believe that she was exposed to asbestos often no history of asbestos exposure.17 undertook pea growing tasks and was
fibres and medical professionals are
PAGE | 12statistically significant among those who enough to cause concussion, such as The researchers concluded that, contrary
had used pesticides. heading a football. to the opinion of certain experts, it should
not be assumed that CTE is inevitable in
Also, the risk of squamous cell carcinoma Most athletes with CTE damage exhibit professional athletes. However, this was a
was increased among those who were early-onset dementia, although some small-scale study, so larger-scale testing is
involved in the practice of sunflower evidence suggests that it may be possible needed to validate findings.
growing, fruit-tree pruning and pesticide to have CTE damage without clinical
spraying on beets. However, these findings symptoms.22
were not statistically significant.
In a recent study, the Buffalo researchers
Further, confirmatory research in advised. compared 21 retired National Football
Future studies could also look into the exact League (NFL) and National Hockey League
chemical/biological agents, to which (NHL) players with non-contact sport
workers are exposed during crop-related athletes. Comparison between groups is
tasks, that are responsible for increasing necessary to determine whether an effect
cancer risk. is more prevalent in one group than in
another and previous studies have been
limited by a lack of comparison.
No Evidence of Early-
Onset Dementia in The data collected has been published in
4 papers. These have provided analysis of
Retired Contact Sport cognitive changes,23 executive function,24
brain imaging25 and a general overview.26
Athletes
Overall, the study found no evidence of
Concerns are growing that professional early-onset dementia in the retired NFL and
sports players may develop degenerative NHL players. As discussed above, research
disorders of the brain, such as chronic suggests that most CTE sufferers would have
traumatic encephalopathy (CTE), later in onset dementia symptoms.
life. We have previously focused on the
specific risk associated with heading A comparison of features associated with
footballs in editions 203 (here) and 244 cognitive function, such as memory,
(here) of BC Disease News. In this article, we attention and visual spatial orientation, did
discuss additional research on CTE and not reveal any significant differences
contact sports, which has been undertaken between the contact sport athletes and the
a team at the University of Buffalo. control participants. Mild cognitive
impairment was slightly more common in
Symptoms of CTE usually begin many years the contact sport athletes, but prevalence
after the onset of head impacts, and can was normal for the age, education level
include changes to mood and behavior, and body mass index of the participants.
including aggression, depression, Any difference between the groups was not
diminished impulse control and paranoia. statistically significant.
As the disease progresses, patients may
also experience memory loss, confusion, When asked to assess their own health and
impaired judgement, and, eventually, functioning, the retired athletes reported
progressive dementia. impaired executive function. However,
reports were inconsistent with the objective
Currently, the disease can only be assessments carried out by the research
diagnosed after death. team. The athletes were more anxious and
more likely to report unusual beliefs and
CTE is believed to be caused by repeated experiences.
concussions. It is also proposed that CTE
can be caused by regular, less intense, Advanced brain imaging also showed no
impacts to the head that are not significant differences between brain tissue injuries
sustained by participants in both groups.
PAGE | 13References
1
‘Claimant who exaggerated impact of genuine injury found fundamentally dishonest’ (20 August 2018 Litigation Futures)
accessed 3 September 2018.
2
Monidipa Fouzder, ‘PI referral fee ban not working, MoJ told’ (30 August 2018 Law Gazette) https://www.lawgazette.co.uk/practice/pi-
referral-fee-ban-not-working-moj-told/5067357.article> accessed 6 September 2018.
3
https://www.legalfutures.co.uk/wp-content/uploads/a-report.pdf
4
Martina Hogg, ‘Asons – the never-ending saga’ (21 August 2018 Legal Futures) accessed 28 August 2018.
5
HMRC, ‘GAAR Advisory Panel opinion of 17 November 2017: extraction of cash or equivalent through trust interests’ (11 December
2017 GOV.UK) accessed 28 August 2018.
6
‘UK Personal Injury Market 2018: Market Trends Report’ (IRN 2018), accessed 4 September 2018.
7
‘Sex/gender analysis: Links between psychosocial work factors and stress not always as expected’ (6 August 2018 Institute for Work
& Health) accessed 3 September 2018.
8
‘Hearing-test data reveals steady rise in hearing loss among oil and gas drilling workers’ (22 August 2018 WorkSafe BC)
accessed 30 August 2018.
9
Stephen Matthews, ‘Girl, 14, becomes 'one of the youngest people in the world' to be diagnosed with an aggressive cancer caused
by exposure to asbestos’ (4 September 2018 Daily Mail) accessed 5 September 2018.
10
‘Mesothelioma’ (National Asbestos Helpline) accessed 5
September 2018.
11
Karen Selby, Walter Pacheco, and Dr Don W. Hill, ‘Mesothelioma in Youth’ ( Asbestos.com)
accessed 5 September 2018.
12
Raising Awareness: Mesothelioma – The Cancer Caused by Asbestos’ (Asbestos Justice
UK) accessed 5 September
2018.
13
Reid, A. et al. Are children more vulnerable to mesothelioma than adults? A comparison of mesothelioma risk among children and
adults exposed non-occupationally to blue asbestos at Wittenoom. Occup Environ Med (2018). doi:10.1136/oemed-2018-105108
https://www.ncbi.nlm.nih.gov/pubmed/30158318 (Accessed 6 September 2018)
14
Tim Povtak, ‘BAP1 Mesothelioma Mutation Focus of Upcoming Clinical Trial’ (5 July 2017 Asbestos.com)
accessed 3 May 2018.
15
Marinaccio, A. et al. The epidemiology of malignant mesothelioma in women: gender differences and modalities of asbestos
exposure. Occup Environ Med (2017). doi:10.1136/oemed-2016-104119 accessed 28 December 2017.
16
Antman, K. H., Ruxer, R. L., Aisner, J. & Vawter, G. Mesothelioma following Wilms’ tumor in childhood. Cancer 54, 367–369 (1984).
https://www.ncbi.nlm.nih.gov/pubmed/6327010 (Accessed 6 September 2018)
17
Mesothelioma in Youth, Asbestos.com https://www.asbestos.com/mesothelioma/children-young-adults/ (Accessed 6 September
2018)
18
Brenner, J., Sordillo, P. P. & Magill, G. B. Malignant mesothelioma in children: report of seven cases and review of the literature.
Med. Pediatr. Oncol. 9, 367–373 (1981). https://www.ncbi.nlm.nih.gov/pubmed/6790917 (Accessed 7 September 2018)
19
Fraire, A. E., Cooper, S., Greenberg, S. D., Buffler, P. & Langston, C. Mesothelioma of childhood. Cancer 62, 838–847 (1988).
https://www.ncbi.nlm.nih.gov/pubmed/3293765 (Accessed 7 September 2018)
20
Boulanger, M. et al. Lung cancer risk and occupational exposures in crop farming: results from the AGRIculture and CANcer
(AGRICAN) cohort. Occup Environ Med oemed-2017-104976 (2018). doi:10.1136/oemed-2017-104976
https://oem.bmj.com/content/early/2018/09/04/oemed-2017-104976.full (Accessed 6 September 2018)
21
‘What is Adenocarcinoma?’ (WebMD) https://www.webmd.com/colorectal-cancer/what-is-adenocarcinoma#1> accessed 6
September 2018.
22
Study of 21 retired NFL and NHL players doesn’t find evidence of early onset dementia. Science Daily, 7 August 2018.
https://www.sciencedaily.com/releases/2018/08/180807103704.htm (Accessed 5 September 2018)
PAGE | 1423 Baker, J. G. et al. An Exploratory Study of Mild Cognitive Impairment of Retired Professional Contact Sport Athletes. J Head Trauma Rehabil (2018). doi:10.1097/HTR.0000000000000420 https://europepmc.org/abstract/med/30080798 (Accessed 5 September 2018) 24 Willer, B. S. et al. Evaluation of Executive Function and Mental Health in Retired Contact Sport Athletes. J Head Trauma Rehabil (2018). doi:10.1097/HTR.0000000000000423 https://europepmc.org/abstract/med/30080797 (Accessed 5 September 2018) 25 Zivadinov, R. et al. Multimodal Imaging of Retired Professional Contact Sport Athletes Does Not Provide Evidence of Structural and Functional Brain Damage. J Head Trauma Rehabil (2018). doi:10.1097/HTR.0000000000000422 https://europepmc.org/abstract/med/30080799 (Accessed 5 September 2018) 26 Willer, B., Zivadinov, R., Haider, M. N., Miecznikowski, J. C. & Leddy, J. J. A Preliminary Study of Early-Onset Dementia of Former Professional Football and Hockey Players. The Journal of Head Trauma Rehabilitation Publish Ahead of Print, (2018). https://journals.lww.com/headtraumarehab/Abstract/publishahead/A_Preliminary_Study_of_Early_Onset_Dementia_of.99468.aspx (Accessed 5 September 2018) PAGE | 15
CONTENTS
PAGE 2
Welcome
Welcome
PAGE 3
Welcome to the 246th edition of BC Disease News.
Claimant Fails to Shift Costs Burden
to Remaining Defendant After
In this edition, we comment on the judgment of Mrs Justice Jefford, in the case of
Discontinuing Against Another? BAE
BAE Systems Pension Funds Trustees Ltd v Bowmer & Kirkland Ltd [2018] EWHC 1222
Systems Pension Funds Trustees Ltd v
(TCC). Here, the claimant was unsuccessful in shifting the burden of paying the
Bowmer & Kirkland Ltd [2018] EWHC
costs of a discontinued defendant onto another defendant party to proceedings.
1222 (TCC)
Elsewhere, we report that Slater and Gordon Lawyers UK sustained losses of £52
PAGE 4 million in the reporting year of 2016/17.
Immunotherapy Indemnity: Hague v
British Telcommunications Plc In science-related news, we discuss the results of a recent study, which pinpointed
(Immunotherapy: Reasonableness the cleaning agents most likely to cause occupational asthma in users.
of Treatment: Private Dictionary
Principle) [2018] EWHC 2227 (QB) In this week’s feature article, we continue our series of investigations in disease
claims by providing a background to cumulative back injury claims and laying
PAGE 6 out the relevant information to obtain upon investigation.
Late Acceptance of Part 36 Offers Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
and Costs Assessment: Holmes v
West London Mental Health Trust As always, warmest regards to all.
(2018)
PAGE 8
SUBJECTS
Slater and Gordon UK Business
Reports £52 Million Annual Losses
Discontinuance and Costs Liability – Nivolumab plus Ipilimumab Immunotherapy
HSE Investigates School Supply of Indemnity Under Compromise Agreement – Indemnity Basis Costs and Late Part 36
Asbestos-Containing Products Acceptance – S&G UK 2016/17 Financial Report – Asbestos in Schools – Cleaning
Agents and Occupational Asthma – EU-OSHA Campaign on Dangerous
PAGE 9 Substances in Workplaces – Investigations in Cumulative Back Injury Claims.
Tumour Treating Fields Enhance
Chemotherapy Success in Pleural
Mesothelioma Patients
Which Cleaning Agents Are Most
Responsible for Occupational
Asthma?
PAGE 10
European Health and Safety
Campaign on Managing
Dangerous Substances
PAGE 11
Feature:
Investigations in Cumulative Back
Injury Claims
PAGE | 16Claimant Fails to Shift requested that the court depart from the default position by ordering the 1 st defendant to
pay the 2nd defendant’s costs.
Costs Burden to
Remaining Defendant
After Discontinuing
Against Another? BAE
Systems Pension Funds
Trustees Ltd v Bowmer &
At the hearing, claimant counsel conceded that ‘there is no authority in which, on
Kirkland Ltd [2018] discontinuance, a costs order has been made against another defendant to the
proceedings’. However, the judge agreed with the claimant that she had a ‘wide
EWHC 1222 (TCC) jurisdiction in respect of costs under Part 44 ... to make such an order ...’ if she saw fit.
In pre-QOCS cases, or cases where QOCS Claimant counsel argued that an order of this type was ‘appropriate’ because the 1st
protection does not apply, there is a defendant had ‘acted unreasonably’. The source of alleged ‘unreasonableness’ was the 1st
presumption that the claimant will pay the defendant’s alleged lack of engagement while proceedings were stayed, which had the
costs of the discontinued defendant party. effect of delaying the eventual discontinuance.
In the recent case of BAE Systems Pension
Funds Trustees Ltd v Bowmer & Kirkland Ltd Jefford J described this argument as ‘unfair and overstated’, as the claim was brought in
[2018] EWHC 1222 (TCC), the claimant respect of a construction project completed over 12 years before the claimant sent its letter
attempted to avoid liability for costs, where of claim. She reasoned that ‘any party could expect a reasonable time in which to
the claim was only discontinued against 1 ascertain its position and that of the other parties’. The 1st defendant could not be ‘criticised
defendant party. for the time that they had taken or were taking to investigate matters which had occurred
many years earlier, and in circumstances where they themselves were not making and had
The key facts of this case comprised a not made any positive allegation against Geofirma [the 2nd defendant]’.
claimant, which protectively issued
proceedings against 4 defendants to Further, the judge considered that the claimant had been intentionally unclear about the
safeguard its position on limitation (1 month details of the claim. She interpreted that the claimant had ‘anticipated’ that a claim could
before expiration), without having be ‘justified’ against the 2nd defendant and ‘did not wish to take the risk of continuing on
complied with the relevant Pre-Action the basis of information that they ... had’.
Protocol.
Counsel for the defendant submitted that the claimant was effectively requesting a
Proceedings were stayed to ensure Sanderson order, under which, for example, an unsuccessful defendant at trial is obligated
compliance with the Protocol. During this to pay the costs of a successful defendant. In BAE, the defendant argued that because
period, the claimant’s letter of claim, there was a ‘quasi-successful defendant but no unsuccessful defendant’, CPR 38.6 should
particulars of claim and defendant not be exercised to displace the claimant’s liability for costs.
responses/defences were exchanged.
Jefford J did not agree with the defendant’s interpretation, stating, at paragraph 30:
Satisfying the directions given by Mrs
Justice Jefford at the CMC (5 months after ‘I am not persuaded ... that there are no circumstances in which a court could order a
the letter of claim), the 1st defendant wrote defendant to pay the costs of another defendant against whom proceedings have been
to all parties confirming that it would ‘not discontinued. I say that given the wide jurisdiction of the court and the possibility of
serve a Part 20 claim and/or contribution envisaging unusual circumstances, for example, where a claimant had been positively
notice against the second defendant’, as misled by one defendant into suing another, where such an order might then be
‘no evidence ... emerged to support the appropriate. But that is not this case, and the absence of any authority in which such an
claimant's pleaded allegations’. order has been made seems to me to be some indication, at least, of how unusual such a
case would be’.
Shortly after this admission, the claimant
filed a notice of discontinuance against the Sanderson cites Irvine v Commissioner of Police for the Metropolis [2005] 3 Costs LR 380, at
2nd defendant and made an application, paragraph 15, as guidance for when Sanderson orders may not be suitable:
pursuant to CPR 38.6. This application
PAGE | 17You can also read
