Disease Update: 2021 Q1 and Q2

COVID-19:  Vaccinations and the return to work

As we hopefully enter the final phases of lockdown and with the vaccination programme running apace many employers will be considering when and how to manage the return to the workplace for those who have been working from home.

DACB have published a wealth of guidance notes, advice and training for our clients throughout the pandemic on all aspects which have affected our clients.  A sample of the depth and breadth of this advice can be found on our COVID-19 Collection. 

In terms of vaccinations employers have a duty to take reasonable care for the safety of their employees. This may include recommending that employees are vaccinated to reduce the risk to the employee and to others, but it is not clear whether the vaccine will prevent the transmission of COVID-19; the vaccine is not expected to offer total immunity and the duration of its effectiveness are not known.

As it is not clear whether the use of vaccination will prevent transmission of COVID-19 and the duration of immunity offered is not known, the vaccination of the workforce should not be relied on as a singular control measure in risk assessments, particularly where some of the workforce have not had the opportunity to be vaccinated or the vaccination of employees is not compulsory. Employers should ensure that COVID secure measures are in place to protect their workforces and should undertake individual risk assessments in relation to employees at greater risk from COVID-19.

Claims may be presented by employees who have contracted COVID-19, where their employer has not implemented COVID-19 secure measures and enforced their use. Where employees are required to return to the workplace, either prior to their receiving the vaccination or prior to their colleagues receiving the vaccination, claims may be presented, albeit the vaccination (as above) should be one factor in the suite of COVID secure measures, applied equally to all employees, taken to protect the workforce, rather than the only factor.

COVID-19:  IIAC Data

The Industrial Injuries Advisory Council (IIAC) published an interim report into COVID-19 on 25/03/21 which appears to show a doubling of the risk of contracting COVID-19, particularly for men, in occupations such as

• Social care
• Nursing
• Bus and taxi drivers
• Food processing
• Retail
• Security

Notwithstanding the preliminary findings the IIAC acknowledge that the data is not yet completed and the conclusions may yet change.  There is no sufficient evidence at this stage for the IIAC to consider COVID-19 as an industrial disease in respect of which benefits would be payable to those infected and unable to work.

The IIAC report does however highlight those sectors which may be considered more “at risk” of occupational COVID-19 infection (notwithstanding that non-occupational exposure may still play a part in infections) and employers in those industries need to take special care to ensure that all suitable and sufficient control measures are in place to reduce the risk of infection.  Employers ought to ensure that the risk assessments and safe systems of work in place remain appropriate as restrictions ease and there is likely to be more interaction in the workplace with members of the public and colleagues.

Based on the IIAC report there have been a total of 17,895 RIDDOR reports for COVID-19 of which 223 involved fatalities.  It should be noted that the data on which the report is based runs to December 2020 i.e. before the more significant “second wave” which may well change the interim findings.

Glyphosate

Another long standing issue we have been covering is the glyphosate litigation in the US resulting from the use of the weed killer and the alleged connection to cancer.  In what appears to be a deal to bring the mass litigation to an end Bayer have agreed a $2bn settlement deal.  The settlement includes past and future claims for those who develop non-Hodgkin’s lymphoma (NHL) and who have used Round Up in the past.   No admissions have been made and Bayer maintain that the product is safe and it is still available on the market.  The period of future claims to be made runs for 4 years from the date of the settlement.

This settlement comes off the back of a $9.6bn deal last year to settle the 100,000 plus cases filed in the US.

Finally Bayer have confirmed they are not seeking to appeal the £20.6m dollar settlement in the case of Mr Johnstone who was the first successful claimant.

The regulatory position in the UK remains the same in that glyphosate is considered safe and not causative of NHL or any other form of cancer or disability.   If employers use glyphosate then a clear risk assessment under the Control of Substances Hazardous to Health Regulations (COSHH) ought to be completed and suitable and sufficient control measures put in place.   This is the same for any chemical used at work.

Paraquat and Parkinson’s disease

In some ways connected to the issue of glyphosate is another herbicide, Paraquat.   This weed killer has long been known to be dangerous and its use in the EU was prohibited in 2007.  There is some evidence of a link between the use of paraquat and Parkinson’s disease.  It could well be with the apparent success of the glyphosate litigation (albeit without clear scientific evidence in support) that claimants could be encouraged to target the use of paraquat whose ill-health effects appear to be more well defined and less controversial.

Asbestosis: Balls v Reeve & Thurlow [2021] EWHC 751 (QB)

In this matter the claimant sought damages for asbestosis due to exposure to asbestos from 1979-1984.  The defendants challenged limitation on the basis that the claimant had been aware of chest issues since the 1990s.  The claimant had suffered a respiratory disability since 2016 and had applied for IIDB referring to symptoms from 2015.  The claimant was not diagnosed with asbestosis until 2017.  The Court dismissed the defendant’s challenge to causation regarding constructive knowledge on the points above and found the claimant’s actual knowledge to be the date of diagnosis.   This case highlights the gradual onset of asbestos and other lung conditions can make it hard for defendants to fix claimant’s with a date of knowledge based on s.14 of the Limitation Act.

Care Claims: Royal Mencap Society v Tomlinson-Blake and others [2021] UKSC 8

This was not a disease claim however it had potential to significantly increase the potential sums sought by claimants.  In the instance case careers argued that they should be paid minimum wage for the time they were available to work including when they may be asleep on a night shift.  The Supreme Court dismissed the claim and held that the requirement to pay minimum wage only applied whilst the worker was awake and available for work.   The decision has therefore avoided the possibility of largely inflated care claims in disease claims and specifically mesothelioma claims when it is common for 24 hour end of life care to be required and often provided on a gratuitous basis.

 Uber worker’s decision

Again not a disease matter but one with implications for EL insurers with disease exposure.  The Supreme Court has found that Uber drivers were workers rather than self-employed contractors.  For a full consideration of the decision please see DACB’s Philip Harman’s article .

What this decision means for EL insurers is that those working in the so-called gig economy who may not have been anticipated to be covered under conventional EL policy wordings may now be so covered.  If any such employees were exposed to substances or hazards which were capable of causing a disease then claims could be made in the future.   As we know in many disease claims manifestation of symptoms can take months, years or decades.  During this time if a transient workforce is being used key evidence to defend any claim may be lost.

Employers will therefore need to give careful consideration to the EL cover in place and what steps are taken to show that the necessary and proportionate control measures were in place to reduce or avoid any potential harmful exposures.  Moreover employers need to take steps to ensure that such evidence of control measures is preserved for all employees and those working on a more temporary basis.

Asbestosis: Provisional Damages: Quantum:  Hamilton v NG Bailey Ltd [2020]

In this case the claimant suffered with asbestosis with a 5% respiratory disability as a result with a risk this could increase to 10% during life.   There were additional risk factors of 3% respectively for mesothelioma and lung cancer.   The trial judge was asked to consider quantum and looked at the relevant JC Guidelines namely Chapter 6(C):

(c)        £36,060 to £99,330 - Asbestosis and pleural thickening where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10-30% being at the lower end, 30-50% in the middle, and in excess of 50% at the higher end.

(d)        £14,140 to £36,060 - Asbestosis and pleural thickening-where the level of respiratory disability/lung function impairment attributable to asbestos is 1-10%. The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety.

Damages were awarded on a provisional basis at £32,000.00.  The trial judge assessed that 6(C)(d) was for respiratory disability up to and including 10% and 6(C)(c) would be relevant for a disability in excess of 10%.   When considering the disability one must consider not just the present level but the likely increase during lifetime. 

 Northern Ireland: Minus 1.75 Discount Rate coming into force

The discount rate in Northern Ireland, which was + 2.5% will now be set at -1.75%,  The rate change is described as an “interim” rate by the DOJ, on the basis that a further “stable longer term” rate change will come into effect in early 2022 under the framework proposed by The Damages (Return on Investment) Bill, currently making its way through the Northern Ireland Assembly. The new rate will be applied by Courts in Northern Ireland for any case heard before the introduction of any different rate, which will significantly drive up the cost of settlements and risk at trial in cases with significant lost years and dependency claims.

Part 36: Pallett v MGN Ltd [2021] EWHC 76

Again not a disease claim, however one with an important practice point on costs and the late acceptance of Part 36 offers. In this case the defendants had deliberately waited until 22 days after a Part 36 offer was made to accept it so that they could invoke CPR 36.13(4) to dispute the claimant’s entitlement to costs. The court, while accepting that this approach was open to the defendants, rejected the argument that the usual cost rule under CPR 36.13(5) should be disapplied because of an alleged failure by the claimant to engage with alternative dispute resolution (ADR).

The defendant argued that as the claimant had not engaged in ADR that they should be unable to recover their costs from service of the defendants defence. Had the defendant accepted the offer a day earlier, i.e. within the 21 day acceptance period, then such arguments would be open to them. However, the Court deemed that the defendant had failed to demonstrate that the claimant’s actions in failing to engage in ADR fell so far short of the standards which the Court now expects of litigants in order to depart from the usual costs rules.

Ultimately the purpose of a Part 36 offer is to settle a claim and provide the parties with some certainty around costs. If an offer is made, it is usually with the intention that some costs cost consequences will follow. We predict that this issue will appear again, particularly in cases where large cost bills are concerned. 

 Mesothelioma: Head v The Culver Heating Co Ltd

For a full consideration of the decision please see DACB’s Mark Ashley’s article.

This case reached the Court of Appeal in January, where it was held that a judge had erred in refusing to award damages for "lost years" on the basis that the claimant's dividend income from his shareholding in the family business would survive his death due to the company's future success. The dividend income was a result of his continued hard work, not a return on passive investment. It therefore formed part of the claimant's own future earning capacity and was a personal loss which could not be disposed of in his will.  This case has now been back to the High Court for those damages to be assessed.  In the hearing there still remained significant differences between the parties as to how the loss was to be calculated, which is addressed in the DACB article.

However, of perhaps greater consequence is the court’s ruling on the claimant’s Part 36 offer.  The claimant “beat” the Part 36 offer that they had made and the court had to consider the award of the Part 36 benefits.  The starting point therefore was that the claimant would be entitled to those benefits and it would be for the defendant to displace that presumption if it could convince the court that it would be unjust to make that order.  Various complaints about the claimant’s conduct failed to convince the court to rule that it would be unjust to grant the Part 36 rewards, but there was one that did, the late service of evidence by the claimant that led to the award.  The judge said

“It would be unjust to the Defendant to allow the Claimant to benefit from part 36(4) orders that are only available because she was permitted to rely on evidence which was served late without good reason.” 

The claimant did not get their hoped for Part 36 benefits.

Air Pollution: Ella Adoo Kissi-Debrah

On 16 December 2020, HM Assistant Coroner for Inner South London, Philip Barlow, concluded that “air pollution exposure” was a contributory cause of nine-year-old Ella Adoo Kissi-Debrah’s death in 2013. This is the first time that a coroner has recorded air pollution exposure as a cause of death, and it is thought to be the first time that air pollution has been listed as a medical cause on a death certificate anywhere in the world.

By way of reminder, Ella suffered from severe asthma from a young age. She died on 15 February 2013. An initial inquest in 2014 concluded that Ella had died from acute respiratory failure caused by severe asthma. In 2019 it was suggested by a research Professor that air pollution had contributed to her death. On the basis of this new evidence the High Court ordered a fresh inquest.

Following a 2 week inquest the Coroner recorded “Air Pollution Exposure” as one of 3 causes of Ella’s death. It was recorded that air pollution was a significant contributory factor to both the induction and exacerbation of Ella’s asthma. Between 2010 and 2013 Ella was exposed to levels of Nitrogen Dioxide and Particulate Matter in excess of WHO Guidelines. The main source of the exposure was from traffic emissions, and Ella’s mother was not provided with any information about the health risks of pollution and the potential impact on Ella’s asthma. Ultimately, it was deemed that had Ella’s mother been given this information she would have taken steps which may have prevented Ella’s death.

The impacts of air pollution are widely reported, this is however the first case of its kind. As governments continue to miss air pollution targets this is likely to be the first of many cases addressing air pollution.

Silica and Lupus

In what is believed to be a first decision for Australia, compensation has been paid to an employee who developed Lupus after being exposed to silica dust.

Lupus is an inflammatory disease which causes the immune system to attack its own tissues. Just like those who suffer with silicosis, Lupus can affect the lungs however, it can also affect the brain.  The claimant in this claim also suffered from silicosis. However, she developed Lupus a year prior to this after working in silica dust for around 20 years. We are seeing an increase in claims for silicosis, which is driven by an increased awareness of the dangers of silica exposure over recent years. Here in the UK the issue came to the attention of MP’s in early 2020 when the All Parliamentary Group for Respiratory Health suggested that the workplace exposure limit should be halved.

Whilst this may be the first case of its kind it is unlikely to be the last. In cases whereby other conditions such as Lupus are alleged to have been caused by exposure to silica dust, it is crucial that medical evidence is obtained at an early stage.

Third-Party Disclosure Application in mesothelioma case

In circumstances where the claimant widower claimed, as the deceased's personal representative, that she had died from negligent exposure to asbestos while working as a teacher at a school, the QBD allowed his appeal against a Master's order, dismissing the claimant's application for an order for disclosure and inspection of documents from a third party. The documents concerned building and maintenance work carried out at the school. The court considered the relevant principles applicable to third party disclosure and held that the master had: (i) been wrong in his application of the test under CPR 31.17(3) to the relevant facts; (ii) taken into account irrelevant factors; (iii) given insufficient weight to relevant factors; and (iv) failed to balance the relevant factors fairly in the scale. Accordingly, the Master's order was set aside.  The judge commented

“Had the Trust engaged properly with the request, the appellant would not have had to make the Disclosure Application. I bear in mind that the respondent did not attend the hearing before Master Thornett and so did not actively oppose the Disclosure Application. But the appellant should not have had to make the Disclosure Application in the first place.”

This case highlights just how wide the issue of disclosure extends. It is important to consider the facts and any witness evidence when considering application for Pre Action Disclosure, in order to determine how far reaching the request can reasonably extend.

Scarborough College Ltd v Winter [2021] 4 WLUK 352

This case involved an appeal by a defendant against a decision of  Master to enter judgment at a show cause hearing, shining a spotlight on the show cause procedure.

In this case the claimant had been a boarder at a school between 1969 and 1973. It was alleged that during his time at the school the claimant, and his fellow pupils, had hung wet sports kit on pipes in the basement boiler room which were lagged with asbestos. When removing the kit it was alleged that the asbestos dust was disturbed leading to significant dust generation, and that he would have to shake the asbestos off his clothes before putting them on.

At the initial show cause hearing the claimant relied on the 1965 Times article and a memorandum circulated by the Department for Education on 18 July 1967 warning of the risks of asbestos. The defendant had obtained preliminary evidence from an occupational hygienist. The Master held that the defendant had no real prospects of defending the claim on liability and that there was a foreseeable risk of injury. On appeal, the defendant argued that the test applied by the Master was too high. It was accepted by the defendant that asbestos was likely to be on the pipes, however it was argued that it was not foreseeable that the claimant would suffer an injury. It was argued that the issue of foreseeability of risk was a matter that should be dealt with at Trial.

The court held that the test on the show cause procedure was whether the defendant had a prospect of success that was more than merely fanciable. The test was described as a low bar. On the issue of expert evidence the show cause procedure was described as “rough and ready” and it was inevitable hearings would take place without expert evidence. In light of the evidence presented by the claimant the Judge agreed with the Master’s decision to enter judgment and the appeal was dismissed.

This is an important decision for defendant practitioners as well as those responsible for the historic liabilities of education facilities. The High Court has clearly empathised that the show cause procedure is intended to be a low bar for defendants. Defendants will evidently need to show that they have a more than fanciful defence in order to avoid judgment being entered. In respect of those defending claims against education facilities, consideration will need to be given as to defending claims post July 1967 given the memorandum and decision in this case.

Scottish Costs: failure to file lodge a judicial account in time

DACB attended an Opposed Motion Hearing in ASPIC relating to the pursuer’s motion seeking to allow late lodging of their Judicial Account. The motion was opposed. The motion was denied resulting in the solicitor for the pursuer missing out on expenses in the sum of £15,000.00 and being found liable for the defendants’ expenses of the hearing.

This was a pleural plaques case in which there were 6 defenders. The claim settled with the court granting the final interlocutor on 07/09/2020. The solicitor for the pursuer therefore had to lodge the account with the Auditor by 07/01/2021. They failed to do so despite the defenders emailing them twice to chase the Account.. The error was discovered by the solicitor for the Pursuer on 30/04/2021 who then intimated the account on 19/05/2021. The motion in respect of the late lodging of the Account was intimated on 28/05/2021 and enrolled on 02/06/2021.

Counsel for pursuer submitted that the deadline had been missed due to human error and submitted that there was relevant prejudice in that if the pursuer’s Judicial Account was not received, the defenders would receive a windfall benefit of £15,000.00.

The defenders submitted that extent of delay was material in that the account was 4 months late and that it was not just a case of a simple one-off human error. The defenders had emailed requesting the account on 11/11/2020 yet the pursuer’s solicitor still failed to prepare the account following this. Counsel for the Defenders submitted that the alleged windfall for the Defenders was not relevant.

The Sheriff stated that the windfall benefit to the defenders is a relevant consideration. However, there were 2 principles he had to take into account – the length of the delay and the fact that defenders were pro-active in seeking Account of Expenses. It was held that there was a fundamental human error but that the pursuer’s solicitors were reminded by the defenders on 11/11/2020 and were subsequently chased following the final interlocutor. The Sheriff stated that every case must be decided on its own facts and there has to be an explanation that persuades the court. In this case the Sherriff was not persuaded by pursuer’s explanation. He admitted there may be a windfall benefit in technical terms as far as the defenders are concerned but other considerations outweigh this. Accordingly, the motion was refused.

Although every case will be decided on its own merits and it is solely for the discretion of the Court at that time, it was interesting to note what factors a Sheriff will consider. It is important to recognise that the Court can and will hold the solicitor for the pursuer accountable where deadlines are missed without reasonable explanation.

Breach of Duty: noise levels below the action levels: saws

The claimant alleged that he developed NIHL as a consequence of his exposure to excessive noise from operating

• band knife saws,
• splitting machines,
• band saw and moulding machines

A single joint engineer was instructed by the parties, who advised that the level of noise to which the claimant had been exposed was unlikely to have reached or breached the action levels in force at the time of his employment as the machines were unlikely to all have been in operation at the same time, and that the noise was generated in short bursts when they were in operation.

NIHL claim struck out following a failure to serve witness evidence

The claimant brought a claim for NIHL allegedly suffered as a result of his employment with two defendants.  Witness evidence was due to be exchanged on 1 April 2020. On the claimant’s request, a 28 day extension was agreed for service of the witness statements, which then fell due by 29 April 2020. Both defendants served their witness evidence on 22 April 2020.  There was no further contact from the claimant’s solicitor since this time and so the claimant did not serve his statement by 29 April 2020. Whilst a prior extension was not requested, given that the CPR was amended to allow extensions of up to 56 days to be agreed between the parties, the defendants waited a further 28 days before applying to the Court to strike out the claim or for summary judgment in the alternative on the basis that the claim has no prospects as not witness evidence has been served.

The hearing was listed for 10 August 2020 and nothing was heard from the Claimant until 5 August when an application for relief from sanction was made appending an unsigned version of the claimant’s statement.  

The Judge was unimpressed by the claimant's solicitors conduct and unpersuaded by their  submissions. The Judge dismissed the claimant’s application for relief and struck out the claim.

NIHL claim dismissed at Trial

The claimant was employed by the defendant as a furniture assembler between 1979 and 1986, during which time he alleged that he had been  exposed to excessive levels of noise. Engineering evidence had been obtained which said that if the claimant primarily operated pneumatic screwdrivers during the course of a normal shift, his daily noise exposure would have exceeded 90dB(A).  DAC Beachcroft put forward a robust defence on limitation, breach and causation and the matter proceeded to trial.  At the Trial, the claimant and his witness both conceded that they would only use such tools for about 50% of the time, such that the Judge found that the claimant’s daily noise exposure did not exceed 90dB(A).

Notwithstanding that the Judge could not find for the claimant on breach of duty, the trial judge also dealt with limitation.  In that respect, the claimant had pleaded his date of knowledge as being 2015. However there were GP records dated 2015 which referred to a 10 year history of hearing loss, i.e. 2005.  Further, the Claimant told his medical expert that his wife had first mentioned his hearing loss in 1989. Under cross examination the claimant accepted that his hearing problems in 1989 were the same as they were now and the Court found that as a 27 year old man the claimant should have made investigations into his hearing loss at that time. His date of knowledge was fixed as being 1989. There were no available documents or witnesses located for the defendant which went into liquidation in 1996. The Court found that had the claimant pursued his claim in time it is likely that the defendant would have been able to provide documents or at the very least facilitate a site visit to assist with the claim. Given the 26 year delay in pursuing the matter the Judge was not prepared to grant s.33 discretion in favour of the claimant.

Stress claim withdrawn over fears of the content of the defendant’s witness evidence

The claimant alleged that he had suffered psychiatric injury as a consequence of being placed under excessive pressure, being mismanaged, bullied and harassed, by the defendant. The claimant went absent from work after a difficult meeting, returned to work for a period, and then went permanently absent following what was described by many as a theatrical collapse.

It was the defendant’s case that following the claimant’s return to work a meeting was held and no complaint made of stress. A sick note referring to stress was never handed in but in any event steps were taken to re-allocate some of the claimant’s tasks.

The claimant’s ex-partner was approached on the basis that she could potentially assist regarding which sick notes were provided to the defendant and when, to potentially open up the issue of whether the defendant was aware of the risk of impending harm. The ex-partner was not able to assist on the key issue of provision of sick notes. The claimant to withdraw his claim initially pleaded at over £800,000.

Provision of reasonable adjustments enables defence of work related stress claim

The claimant alleged that he had suffered psychiatric injury as a consequence of being placed under excessive pressure, being mismanaged, bullied and harassed. The claimant went absent from work for a  period whilst suffering the effects of treatment for a form of cancer, then returned to work before becoming permanently absent when communications were taking place regarding employment options to accommodate his cancer related limitations.

The claim was defended on the basis that following the claimant’s cancer diagnosis, attempts were made to engage with the claimant and provide suitable adjustments to his work. The claim was successfully defended on the basis that there was evidence that if there was an impact upon the claimant’s mental health by virtue of him continuing within his role (albeit with some adjustments that the claimant requested whilst remaining on full pay) he minimised any indication to the defendant. Proactive investigation established that the defendant wanted the claimant to engage in discussions regarding adjustments, but the claimant preferred to give the impression that he was able to continue with his role, because the claimant was not prepared to accept the financial implications of adjustments.

Costs recovery achieved following discontinuance in Asbestos claim

The claimant alleged that he had suffered injury as a result of exposure to asbestos with the defendant.  Following disclosure of expert engineering evidence, the claimant sought to discontinue his claim against our client.  However, prior to engineering evidence being obtained, the claimant settled his claim against another defendant on a provisional basis, which was recorded in a Judgment Order.

The Court of Appeal held in the case of Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654 that CPR 44.14 entitles a successful defendant to recover its costs as against damages awarded against another defendant in the same action. In that case the successful defendant was actually unable to enforce its costs against the claimant because the damages award was formalised in a Tomlin order but that this was not the case here.  Whilst the claimant sought to avoid payment of our client’s costs, following our reliance upon the decision in Cartwright, the claimant agreed to pay the T costs of £11,500 and filed a Notice of Discontinuance.

Successful in application to strike out where proceedings were served on a dissolved defendant

The Claimant brought a claim alleging that he had suffered HAVS during the course of his employment with the defendants.  The claimant purportedly served proceedings directly on the dissolved defendant, and it was not until many months later that the claimant notified the defendant’s insurer of the claim.

DAC Beachcroft submitted an application to strike out the claim on the basis of a lack of jurisdiction as:-

1. The First Defendant is a dissolved company with no legal personality.
2. The Certificate of Service was defective.
3. Proceedings were purportedly served on the defendant’s registered address at the time of dissolution. This address is that of accountants, presumably the liquidator/administrator whose own registered address had changed by the time of purported service. The address served on was not a place of business of the company.

There was a significant delay in the Court listing our application for a hearing, but during that time the claimant made no attempt to restore the company to the Register.

Whilst restoration to the Register can retrospectively validate service against a dissolved entity (Peaktone v Jodrell) , we relied on the recent judgment in Cowley v LW Carlisle & Co Ltd [2020] EWCA Civ 227 which found that where there is excessive delay in restoring a dissolved company to the Register once it has been brought to the attention of a party to proceedings, this in itself can be sufficient reason for a judge to exercise his discretion to apply his case management powers and strike out the claim under CPR 3.4.

The claimant opposed the application arguing that DAC Beachcroft could not have standing to act given the defendant was dissolved, which was a point raised but not determined in Cowley. The Court however was pleasingly robust and used its inherent case management powers to strike out (which the claimant conceded he had jurisdiction to do).

Limitation defence successful at Trial

The claimant brought a claim against four defendants alleging that he has suffered NIHL during his employment with each of them.  The case proceeded to trial, but solely against our client, as the other claims were either discontinued or struck out.

The claimant had secured supportive evidence from an engineer to support that he had been exposed to excessive noise, and also favourable medical evidence establishing causation.  At trial, the claimant conceded that 3-4 years prior to his retirement (sometime in 2014) his daughters mentioned on numerous occasions that the TV was way too loud. The judge found that a reasonable man at that stage would have made enquiries and had he asked his GP he would have been sent for a hearing test. Allowing thinking time he found a constructive date of knowledge of July 2011, meaning that the claim was issued 3 years out of time.

The judge declined to grant discretion to bring the claim out of time under s.33 Limitation Act 1980. Whilst the judge suspected the defendant would not have been in a worse position in obtaining evidence he couldn’t make a finding of fact with any confidence on that point. The claimant had instructed solicitors in July 2014 but there was then a significant further delay and proceedings issued and served at last possible point. The defendant were not notified until after issue of proceedings which the judge was also critical of.

Scotland: Failure to service medical evidence

In a number of cases pursuers’ solicitors were by failing to hand over medical evidence which was in their possession and preventing us from being able to settle claims earlier. In this case the pursuer’s solicitors attempted to lodge the Record after failing to produce medical evidence within the adjustment period. Anything that does not appear in the Record cannot be used at the Proof. The only way to change the Record after the end of the adjustment period is to use amendment procedure which should not be necessary and entails further expense. DACB opposed the lodging of the Record in the circumstances as the pursuer’s solicitors refused to accept that they had to produce the medical evidence timeously and within the adjustment period.  Our motion was accepted and expenses awarded.  The judge made clear that the approach taken by the pursuer’s solicitors in this case was not acceptable and early service of medical evidence is to be encouraged.

Scotland: Costs of PTM and medical evidence

In this asbestos claim the pursuer’s solicitors insisted on a PTM despite not having disclosed a chest physician’s report. DACB refused to sign the Pre-Trial Minute as substantive discussions were not possible given the absence of the chest physician’s report. In addition to the absence of medical evidence the pursuer’s solicitors had also only disclosed an occupational hygienist’s report the night before the PTM.

A By Order hearing took place due to failure to lodge a Pre-Trial Minute. The Sheriff found in our favour and discharged the Proof with expenses of the hearing and of the PTM in our favour. Permission to appeal by the pursuer was refused.