Fixed costs for noise induced hearing loss cases

Published 21 abril 2023

From 1 October 2023, noise induced hearing loss claims will be subject to fixed recoverable costs. The new provisions implement the recommendations made by the Civil Justice Council’s working group on fixed costs for NIHL claims, and will apply to all NIHL claims where no letter of claim was sent before 1 October 2023. The full details of the scheme are found in Section VIII of Part 45, Table 15 in PD45 and the new Annex E to the Pre-Action Protocol for Disease and Illness Claims, but this alert provides the basics you need to know before the costs provisions take effect.

The structure of fixed recoverable costs varies according to number of “live” defendants:

• Covers claims with no more than 3 defendants;
• Defendants represented together only count as one defendant;
• Defendants who are usually pursued as single defendants can stay in the EL/PL Protocol and Claims Portal for all claims by election.

Improved letter of claim, to include HMRC schedule, ELTO search and audiogram.

No accreditation model for audiologists – audiograms have to be from “suitably qualified” audiologists.

Improved letter of response – use of this and the improved letter of claim should avoid standard requests for more details or disclosure.

NIHL claims should be allocated to the fast track – standard directions have been created to achieve this.

The fixed recoverable costs (FRC) in Section VIII only apply if claims would normally be or are allocated to the fast track; cases allocated to the intermediate track or the multi-track are excluded from this section.

(Cases valued at over £25,000 may fall within the scope of FRC in the intermediate track, but only if they involve no more than two defendants.)

Limitation only trials are discouraged, but provisions for them are made in the FRC.

Main exclusions:

• Claims valued at more than £25,000;
• Claims against 4 or more defendants;
• Claims where a defendant alleges that the claimant's occupational hearing loss is de minimis, requests a second audiogram or their own medical evidence.

There are no separate sanctions for non-compliance with the Annex to the Protocol.  Instead the costs provisions in Section VIII of Part 45 adopt the “standard” approach used throughout the new FRC for unreasonable behaviour: a 50% increase or decrease in the applicable FRC figure.

Part 45, Section VIII, Table 15

Special rules apply where defendants settle at different times

Disbursements allowed include drafting and advice from counsel where their use is justified and any other disbursement which has been reasonably incurred.

There are separate fixed costs for restoration proceedings: £1,280 to include counsel, plus the usual external fees as listed.

The CJC’s working group was chaired by Andrew Parker, with Michael McCabe supporting that work including the drafting of the final report.