Defining "disease" for the purposes of fixed success fees
Legal costs is a funny old game.
Fixed success fees for employers’ liability claims were introduced on 1 October 2004. Fixed success fees for employers’ liability disease claims were introduced on 1 October 2005. Recoverability of success fees between the parties will end in April 2013 (although not retrospectively).
Only now, with the end in sight, has the question of what is and what is not a “disease” suddenly become problematic.
The first issue that arises is whether exacerbating a pre-existing condition amounts to a disease. This issue now appears to be heading to the Court of Appeal. See the excellent briefing note from specialist costs counsel Andrew Hogan for a more detailed analysis.
Secondly, we have the recent judgment of Mr Justice Males in Patterson v Ministry of Defence. This concluded that symptoms relating to exposure to cold weather conditions did not amount to a “disease” for the purposes of the fixed success fee regime. This judgment includes a detailed analysis trying to interpret the meaning of the term “disease”. It is clear that this is a far from straightforward point. This is compounded by the fact that some of the claims that fall within the “disease” category for the purpose of the rules would not normally be considered as such using ordinary language.
Now that the courts have been asked to properly grapple with this issue it is likely to run for some time and potentially produce some unexpected outcomes. Remember, everyone used to believe that pleural plaques was an actionable injury and millions of pounds was paid out in damages and costs before it was decided that it was not.