Legal Cost Specialists

Fixed success fees in disease claims

The issue of what amounts to a “disease” for the purposes of the old fixed success fee regime rumbles on. Judgment has now been given by Mr Justice Phillips in Dalton v British Telecommunications plc ruling that noise induced hearing loss (NIHL) claims are “disease” claims for the purposes of the rules.

This is unlikely to be the end of the matter. Permission to appeal is being sought. It needs to be understood why this matter was heard by a High Court judge given the claims were County Court matters. Both parties, and the Regional Costs Judge, had agreed that the issue had “Court of Appeal” written all over it and it would be preferable for the issue to be determined at High Court level. (There had already been a number of conflicting first instance decisions at County Court level.) With the matter heard by a High Court judge, that would finally decide the matter subject to any appeal that would move straight to the Court of Appeal.

Watch this space.

3 thoughts on “Fixed success fees in disease claims”

  1. From what I understand from medically qualified friends – if a condition has a pathology then it is a disease.

    The medical definition is not going to change no matter what the costs judgments say. The ‘fault’ (if there is any) lies with those who drafted the rules and didn’t take proper advice as to what a disease is and is not.

    Once again it is the parties to litigation who are suffering due poorly drafted rules. How difficult would it have been to cut & paste the definition from Mosby’s or Stedman’s widely used and respected medical texts? Or even better, if it was the intention of the rules committee to have a very limited list then actually publish the list!

    This really isn’t about whether a particular condition is a disease or not, it’s just about what costs are recoverable for that particular condition. The rules should be changed if necessary – not the definition of the word ‘disease.’

    There are other examples of litigation where the very definition of words caused the dispute in the first place. British Chiropractic Assoc -v- Singh is a recent example that springs to mind.

    Did anyone else notice when our lords and masters at the DWP redefined Multiple Sclerosis against all medical understanding of the disease as a condition that a person might recover from and therefore might return to work? Funny how that slight change reduced the benefits bill for genuinely and permanently disabled people.

    Ending up with a judgment that effectively says “The medical profession confirms this condition is a disease but the non-medically qualified legal profession thinks otherwise” would not only be intellectually bankrupt it could actually cause harm when cherry picked / quote mined.

  2. Simon does not mention that he acted for BT. I admire Simon’s writing. I also admire Andrew Hogan, BT’s counsel on Dalton. He too like Simon has written a gung-ho “see you in the Court of Appeal” article, which I expect many users of this site will have seen.

    So it is with a genuine wish to be helpful that I say: guys – you are too close to this case. Pause. Back-off. Think again. Your position is impossible and, if you take this to the Court of Appeal, you and your clients risk being dropped into a Christmas Tree shredder. As Justice Phillips’s judgment shows, the insurance industry specifically agreed to include NIHL claims in the settlement underpinning section IV of Part 45. BT’s insurer, AXA, actually participated in that process. No one knows this better than the Master of the Rolls, who was heavily involved in the CJC at the time. When the Court of Appeal see that this is simply an attempt by insurers to collapse the very settlement they agreed to – indifferent to the fact that this will cause tens of thousands of run-off cases to require a success fee assessment – they will go nutty. I can see indemnity basis costs orders, and questions being asked about whether insurers who try to renege on settlements are actually discharging their FCA obligations.

  3. The last poster is quite right It’s probably not a disease but surely part of a deal done at the Montague Hotel?

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