As you were, for under-settled NIHL claims following Supreme Court ruling in Edwards

Published 6 abril 2020

Professional negligence claims against solicitors for under settling Noise Induced Hearing Loss (“NIHL”) claims are on the rise and look to be gathering momentum. In this article we look at how those claims may be affected by the decision in Edwards v Hugh James Ford Simey Solicitors [2019] UKSC 54.

Background

In 2015 the Association of British Insurers reported that NIHL claims had become the new whiplash for claimant lawyers, following a drop in their income streams due to the launch of the small claims portal and its extension to EL/PL claims in 2013. As a result there was a surge in NIHL claims.

NIHL was historically a volume driven and potentially profitable arena for claimant firms faced with the cost pressures driven by the Jackson reforms and implementation of fixed recoverable costs; the majority of NIHL claims involve more than one defendant which allows the claim to be presented outside of the fixed costs regime.

Why the influx of claims?

NIHL claims are now prime targets for claimant professional negligence firms for many reasons.

The majority of NIHL claims are repudiated and settlements reached without an admission of liability. Due to the difficulties in investigating claims, defendants may make offers at an early stage to buy off the risk of litigation without having to incur significant costs investigating a claim. Invariably claimants are happy to accept those offers to secure a quick payment without the stress of litigation. Claimant solicitors are equally keen to secure a swift settlement, against the risk that a fuller examination of the claim would reveal a limitation or causation hurdle, to enable a swift costs recovery.

The common theme now appearing in the professional negligence action is that the general damages were undervalued and no future loss claims were advanced on behalf of the claimant.

Edwards and its impact on under-settled NIHL claims

Edwards was an under-settled Vibration White Finger (“VWF”) claim where the claimant lost the opportunity to pursue a special damages award due to the negligence of his solicitors. The special damages award was governed by a government scheme set up to provide compensation to miners suffering from VWF (“the Scheme").

The claim was dismissed at first instance on the basis of expert evidence, acquired after the event, which found the claimant would not have been entitled to damages from the Scheme and had, in fact, been overcompensated. That decision was reversed by the Court of Appeal and the Supreme Court, in dismissing the after-coming expert evidence because it was not compliant with the Scheme, upheld the decision.

The decision in Edwards drew widespread consternation in defendant circles, for the Supreme Court ruled that a claimant had sustained a loss arising from his solicitors’ negligence, despite the after-coming evidence establishing that the claimant’s underlying claim should not have succeeded.

The question before the Supreme Court centred on the admissibility of expert evidence, that would not have been available at the trial of the underlying claim, to determine the value of a lost claim in professional negligence proceedings. The Supreme Court’s answer was less than emphatic. The judgment carefully distinguished Edwards from “conventional civil litigation” because it was fact sensitive owing to the Scheme. The Supreme Court were therefore able to circumvent the question that all professional negligence practitioners hoped would be answered.

Conclusion and practical considerations

Following Edwards the question of after-coming evidence in a loss of chance claim remains to be determined on an case-by-case basis. Practitioners will be wise to carefully consider the after-coming evidence in the context of the underlying claim and whether it would have been admissible then.

In the context of under-settled NIHL claim it is very much ‘as you were’ following Edwards. The loss of chance principles are well settled and there is no relevant ‘scheme’ for NIHL claims as there was in Edwards.

Of more concern for those defending under-settled NIHL claims will be that because the noise exposure will have occurred many years (usually decades) ago, in some cases, the underlying claim will have been settled to reflect commercial considerations without full scrutiny being given to the claimant’s date of knowledge and limitation. In those cases it is important to interrogate the medical records and original medical evidence to determine whether a limitation defence may have been available to, and pursued by, defendants if the underlying claim was presented on the true value basis now asserted by the claimant.

Each under-settled NIHL claim will need considering on its individual merits to ascertain the true merits of the underlying claim and its value and careful consideration should be given to how these claims are dealt with to avoid the danger of opening floodgates.