September 2018 Edition




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
                                           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.

                                           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.

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
                                           Anchor Points and Bulge Calculations – Strike Out, QOCS Disapplication and
                                           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?


12% Increase in Canadian Worker NIHL
Cases as Hearing Protection Uptake


14-Year Old Briton Diagnosed with
Peritoneal Mesothelioma

Farmers May Be at Risk of Lung Cancer
from Crop-Related Tasks


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:
                                                                                                    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 | 10
Men 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 | 11
supported 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 | 12
statistically 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
                                                 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 | 13

   ‘Claimant who exaggerated impact of genuine injury found fundamentally dishonest’ (20 August 2018 Litigation Futures)

accessed 3 September 2018.
  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.
  Martina Hogg, ‘Asons – the never-ending saga’ (21 August 2018 Legal Futures)  accessed 28 August 2018.
  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.
  ‘UK Personal Injury Market 2018: Market Trends Report’ (IRN 2018), accessed 4 September 2018.
  ‘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.
   ‘Hearing-test data reveals steady rise in hearing loss among oil and gas drilling workers’ (22 August 2018 WorkSafe BC)
 accessed 30 August 2018.
  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.
    ‘Mesothelioma’ (National Asbestos Helpline)  accessed 5
September 2018.
         Karen    Selby,      Walter   Pacheco,       and    Dr    Don     W.   Hill,   ‘Mesothelioma     in     Youth’   ( Asbestos.com)
 accessed 5 September 2018.
          Raising     Awareness:      Mesothelioma        –    The    Cancer      Caused       by      Asbestos’     (Asbestos     Justice
UK) accessed 5 September
     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)
       Tim Povtak, ‘BAP1 Mesothelioma Mutation Focus of Upcoming Clinical Trial’ (5 July 2017 Asbestos.com)
 accessed 3 May 2018.
    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.
     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)
    Mesothelioma in Youth, Asbestos.com https://www.asbestos.com/mesothelioma/children-young-adults/ (Accessed 6 September
    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)
      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)
    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)
     ‘What is Adenocarcinoma?’ (WebMD) https://www.webmd.com/colorectal-cancer/what-is-adenocarcinoma#1> accessed 6
September 2018.
     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 | 14
   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)
   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)
   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)
   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).
(Accessed 5 September 2018)

PAGE | 15

                                       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.

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

European Health and Safety
Campaign on Managing
Dangerous Substances

Investigations in Cumulative Back
Injury Claims

PAGE | 16
Claimant 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’.
                                                 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 | 17
You can also read
NEXT SLIDES ... Cancel