Bc Disease News a Monthly Disease Update
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January 2020 Edition BC DISEASE NEWS A MONTHLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 Welcome to the 297th edition of BC Disease News. Application of QOCS in This is the opening issue of 2020, in which we consider the hypothetical ‘Mixed’ Claims on Appeal: application of qualified one-way costs shifting (QOCS) in ‘mixed’ RTA proceedings Brown v Commissioner of with an additional tinnitus element. We do so, in light of the recent case of Brown Police of the Metropolis & v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724. Anor [2019] EWCA Civ 1724 Elsewhere, we discuss the benefits of the Health and Safety Executive’s (HSE) new Vibration Exposure Calculator. PAGE 6 In addition, we announce the publication of the 15th edition of the Judicial Government Clarifies College (JC) Guidelines for the Assessment of General Damages in Personal Injury Dupuytren’s Contracture Cases by comparing its contents with the 14th edition. Prescription Under Social Security Regime, with Miners’ Next week, our feature article will summarise judgment of the Court of Appeal in Union Claiming ‘Thousands’ Mackenzie v Alcoa Manufacturing (Gb) Ltd [2019] EWCA Civ 2110 and evaluate Are Eligible for Disablement its influence on noise-induced hearing loss (NIHL) claims that allege historic Benefit exposure to excessive noise levels. Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. PAGE 7 As always, warmest regards to all. ABI Decides Against Judicial Review of New PI Discount Rate in England and Wales SUBJECTS HSE Enhances Vibration QOCS in ‘Mixed’ Claims – Predicting Dupuytren’s Contracture IIDB Claims Exposure Calculator (Link Numbers – Judicial Review Challenge of the Personal Injury Discount Rate in England & Wales – HSE Vibration Exposure Calculator (Version 5.6) – Leigh Day on Contained in Article) MHRA Ban of Textured Breast Implants – JC Guidelines (15th Edition). PAGE 10 Claimant PI Firm Condemns UK Health Products Regulator for Not Banning Breast Implants Linked with Rare Cancer PAGE 11 Feature: The Judicial College Guidelines (15th Edition) – What Has Changed? PAGE | 2 Application of QOCS in ‘Mixed’ Claims on Appeal: Brown v Commissioner of Police of the Metropolis & Anor [2019] EWCA Civ 1724 In the case of The Commissioner of Police of the Metropolis v Brown [2018] EWHC 2046 (Admin), which we analysed in edition 241 of BC Disease News (here), Mrs. Justice Whipple assessed the boundaries of qualified-one-way costs shifting (QOCS) in a ‘mixed’ claim, i.e. a claim with both personal injury and non-personal injury elements. THE HIGH COURT DECISION At paragraphs 46, 49 and 50 of the High Court judgment, the Judge concluded that QOCS does not automatically apply to ‘mixed’ claims: ‘CPR 44.13 [QOCS] extends to any proceedings which "include" a claim for damages for personal injuries. I would see this as a broad gateway, through which any proceedings which include a claim for damages for PI will pass’. ... CPR 44.16(2) [QOCS disapplication] applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (ie, as well as a claim other than a claim for damages for personal injury) ... Once that point is resolved, the construction of CPR 44.16(2)(b) becomes clear. Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1). But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims. The mechanism is quite simply to leave it to the Court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant's costs order’. PAGE | 3 1st Ground of Appeal – ‘Literal Interpretation’ of QOCS Exception Circumvents Exception? On appeal, the claimant argued that the lower court had erred in equating ‘proceedings’, in CPR 44.13(1), with ‘a claim’, in 44.16(2)(b). To put it simply, the claimant’s challenge was that no claim in the proceedings could be excepted by CPR 44.16(2)(a) if the personal injury claim advanced in the proceedings was protected by CPR 44.13(1). However, Lord Justice Coulson, with whom Lord Justice Richards and Lord Justice McCombe agreed, rejected this ‘unrealistic’, so-called ‘literal interpretation’, on the basis that it ‘deprived the [QOCS] exception of any utility’: ‘At root, the appellant’s case ... had to be that the r.44.16(2)(b) exception could not arise in any proceedings to which QOCS applied. In that way it would no longer be an exception to the QOCS regime at all ... To facilitate this ‘end of the case’ mechanism, Whipple J devised a simple test, the result of ... It would make r.44.16(2)(b) redundant’. which would either permit or deny the enforceability of defendant costs orders: 2nd Ground of Appeal – ‘Claim’ Means ‘The question to be asked in any given case seems to me to be this: in the proceedings, is ‘Cause of Action’? the claimant claiming anything other than damages for personal injuries? In the alternative, the claimant argued that i. If the answer is no, then QOCS protection applies automatically (subject of course to one reference to ‘a claim’, in CPR 44.16(2)(a), of the other exceptions applying, where the case is struck out or dishonesty is found). should be construed as a ‘cause of action’, because reference to ‘a claim’ in CPR ii. If the answer is yes, then the case is subject to the court's discretion under CPR 44.16(2)(b)’. 44.16(1) insinuated a ‘cause of action’. She went on to speculate over the effect of her interpretation of CPR 44.13(1)(a) and CPR The upshot of the claimant’s unorthodox 44.16(2)(b) on routine RTA claims, at paragraph 54: interpretation would be that: In an ordinary claim arising out of an RTA, it might be thought unlikely that a Court would ‘... regardless of the nature, scope and consider it just to remove QOCS protection, simply because the injured claimant also extent of the underlying cause or causes of sought compensation for damage to their car. But the discretion is there, and in an unusual action, if damages for personal injury were RTA, for example where the personal injury claim is modest but the main issue in the case claimed as a consequence of each relates to damage to the car, the Court might consider it just to remove QOCS protection’. pleaded cause of action, the exception would not apply and automatic QOCS THE COURT OF APPEAL DECISION protection would remain’. On 3 October 2019, Brown was appealed and judgment of the Court of Appeal was As with the 1st ground of appeal, however, handed down a fortnight later. the 2nd ground was rejected. The Lord Justices of Appeal deliberated that reference to ‘a claim’ in CPR 44.16(1) was PAGE | 4 not an exclusive reference to a ‘cause of ‘damage to property’ does not render the of claims and bypass the disadvantages action’. QOCS regime ‘suddenly ... irrelevant’: posed by an increase to the small claims limit (to £5,000), could this practice be Further, it would be inaccurate to describe ‘On the contrary, I consider that, when perceived as ‘tacking on’ to ‘hide behind a ‘claim for damages for personal injury’ as dealing with costs at the conclusion of such QOCS protection’, if the bulk of the a ‘cause of action’: a case, the fact that QOCS protection compensation sought is for damage to would have been available for the property, i.e. a credit hire claim? ‘A cause of action is, for example, a breach personal injury claim will be the starting of duty or a claim under a statute. A claim point, and possibly the finishing point too, Conversely, if ‘mixed’ soft tissue injury claims for damages in respect of personal injury is of any exercise of the judge's discretion on with a tinnitus element are deemed to be a claim for a particular head of loss arising costs. If (unlike the present case) the genuine (albeit medical causation is out of the breach or misconduct of the proceedings can fairly be described in the disputed by the clinical literature), could defendant’. round as a personal injury case then, unless the annexation of a tinnitus claim help there are exceptional features of the non- proceedings to be ‘fairly be described in Consequently, the High Court ruling was personal injury claims (such as gross the round as a personal injury case’, upheld. exaggeration of the alternative car hire thereby guaranteeing QOCS protection for claim, or something similar), I would expect claimants? Effect of the Court’s Interpretation on the judge deciding costs to endeavour to ‘Ordinary Claims for Personal Injuries’? achieve a 'cost neutral' result through the We will continue censor this concern with exercise of discretion. In this way, whilst it interest in future editions of BC Disease Reiterating the spirit of Whipple J’s will obviously be a matter for the judge on News. judgment, Coulson LJ went on to the facts of the individual case, I consider it contextualise the accepted legal position likely that, in most mixed claims of the type on QOCS application in ‘mixed’ claims with that I have described, QOCS protection will ‘ordinary personal injury claims’. – in one way or another – continue to apply ...’ His lordship explained that the ‘starting point’ is that QOCS protection applies to That being said, Coulson LJ called for the claims that will include, ‘not only the preservation of ‘flexibility’, and the damages due as a result of pain and avoidance of allowing ‘all mixed claims’ to suffering, but also things like the cost of require the exercise of discretion in favour medical treatment and, in a more serious of the claimant: case, the costs of adapting accommodation and everything that goes ‘..