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Bc Disease News a Weekly Disease Update 13 December 2013 Edition 29 BC DISEASE NEWS A WEEKLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 FOIL seeks greater clarity Welcome to this week’s edition of BC Disease News. In the last week the on Jackson reforms Mesothelioma Bill has started its committee stage in the House of Commons and the Government has defended the referral fee ban. Mesothelioma Bill starts This week we present a feature examining whether NIHL really is a committee stage ‘disease’. Government defends fee Any comments or feedback can be sent to Boris Cetnik or Charlotte ban Owen. Mitchell in action? As always, warmest regards to all. PAGE 4 Case note: pre- commencement disclosure PAGE 5 Feature: is NIHL a ‘disease’? PAGE | 2 We should add that we expect the The Committee adjourned and was FOIL seeks greater approach to both budgeting and scheduled to sit again on 12 fundamental dishonesty to be strict. If December. BC Disease News will clarity on Jackson the Mitchell ruling is anything to go by continue to update on the progress of reforms then budgets will be rigorously the Bill. enforced because amendments will be expected to be made when Government defends necessary. Moreover, the courts have The Forum of Insurance Lawyers (FOIL) recently taken a firm line to dishonesty has said that practitioners still require a fee ban in personal injury claims (remember Mrs lot more clarity on the Jackson Fari who was recently imprisoned for a reforms.1 The Government has defended the grossly fraudulent personal injury current referral fee ban despite The president of FOIL, David Johnson, claim?) Only a strict approach can be criticism that it is ineffective.3 has said that edginess around relief expected and should be prepared for. from sanctions has already compelled Justice Minister Lord McNally has a lot more compliance. He said the Mesothelioma Bill stated he believes the ban on referral Court of Appeal’s ruling in Mitchell fees in personal injury will work. The ban (examined extensively in edition 27) starts committee was implemented on 1 April 2013 ‘represents the stick that people had having been enacted in section 56 of feared was there and will continue to stage the Legal Aid, Sentencing and drive change’. Punishment of Offenders Act 2012. The Mesothelioma Bill has started its McNally told the House of Lords last However, he says ‘a lot more clarity’ is committee stage in the House of week that he was ‘confident’ the SRA needed in other areas of the Jackson Commons. would deal with any breaches of the reforms. In particular, more clarity is ban. needed on how the courts will react to The Bill is being examined line by line applications to amend budgets and by a Public Bill Committee. So far Even if the SRA does enforce the ban it how rigidly budgets will be enforced at clauses 2 and 3 have been agreed must be doubted if this is enough. It is the end of cases. without amendment. well known that myriad methods have been developed to legitimately In addition, he notes that practitioners As expected there was considerable circumvent the ban: its terms are are still unsure as to what constitutes debate about the rate of payments technically complied with but its spirit if ‘fundamental dishonesty’ such that the made under the scheme. The flagrantly flouted. The SRA has said claimant loses there costs protection Government currently intends that itself that it cannot enforce the spirit of under the qualified one way costs payments will be equivalent to 75% of the ban.4 Parliament needs to shifting regime (QOCS). Furthermore, the damages that would be awarded reconsider the terms of the referral fee there is a lack of clarity about the in the courts. Seven amendments to ban to ensure that its intention is interaction between QOCS and Part the Bill were proposed, each of them actually enforced. 36. We have previously highlighted the intending to increase the payments. interpretation issue as to what exactly The proposed rates were 80%, 90%, Mitchell in action? ‘fundamental dishonesty’ entails. 100% and even 110% of the level of damages awarded in the courts. The It has been only a short time since the Aside from the Jackson reforms, proposed amendments were Court of Appeal released its judgment Johnson said that going forward ‘FOIL outvoted.2 in Mitchell v News Group Newspapers will be forthright in presenting the (examined extensively in edition 27 of defendant insurer lawyer perspective In addition, a new clause 4 was Disease News), but we already have a but I’m keen to make the most of proposed advocating the need for an judgment which appears to apply its opportunities to work with organisations annual report on the scheme, dealing principles.5 such as APIL… to collaborate where specifically with whether the scheme had led to a rise in insurance possible to achieve sensible and In Forstater v Python (Monty) Mr Justice premiums. The amendment was effective reform’. Norris granted relief from sanctions withdrawn after debate. where a successful party failed to serve a notice of its funding arrangements 6 on form N251. PAGE | 3 The judgment had been drafted This appears to be an application of The Court of Appeal so held in Smith v before the Court of Appeal ruling in the first limb of the test set out in Secretary of State for Energy and Mitchell, but Mr Justice Norris said his Mitchell. In Mitchell at [40] the court Climate Change,7 a case concerning decision ‘proceeds along correct said relief would likely be granted for alleged noise induced hearing loss. The principles’ and did not need reviewing. trivial non-compliance when an 65 year old claimant had been application for relief is made promptly. employed between 1964 and 1994 by The case concerned the royalties from This includes a ‘failure of form rather the Coal Board. He brought the play ‘Spamalot’. When the second than substance’. The failure in this case proceedings against his employer’s claimant was joined to the first was merely of form (literally); the successor, the defendant, alleging that claimant’s conditional fee substance of the rule had been inadequate steps had been taken to arrangement (CFA) it failed to complied with: the defendant was protect his hearing, causing hearing complete and serve form N251. The made aware of the CFA by other loss. The claimant sought an order for defendants had been made aware of correspondence. pre-action disclosure of certain the CFA through correspondence documents under CPR 31.16. CPR however. While seemingly a perfect application 31.16(3)(a) and (b) provided that such of the approach expounded in an order could only be made where The consequence of this failure was Mitchell, the case does raise questions. the applicant and the respondent that, under CPR 44.3B, upon winning How tolerant will the courts be of using were likely to be parties to subsequent the claim the second claimant was incorrect forms or no forms at all, so proceedings. The district judge unable to recover any part of its long as the rules are complied with in granted the application but the success fee unless the court ordered substance? This ruling suggests decision was reversed on appeal by otherwise. completion of form N251 is optional so the circuit judge who held, following long as notice of funding is given. What Kneale v Barclays Bank,8 that there was In his judgement, Norris J said the is the value of the rules requiring a jurisdictional ‘arguability threshold’ failure was a ‘simple oversight, without certain forms to be used if this is not test for such an application which had good explanation. Moreover, ‘it [was] then enforced? Will the courts grant vitally important to the administration not been met. relief but impose a costs penalty for of justice that the rules of procedure non-compliance with the rules? Later On appeal to the Court of Appeal the [were] observed’. However, there was cases should hopefully answer this. issue was what the correct threshold a distinction to be made between a test was for a claimant to satisfy before failure to comply with a rule of general the court had jurisdiction to make an application through human error and Case note: pre- order for pre-action disclosure. The a failure to comply with a specific appeal was allowed. Having order made in the action itself ([46]). commencement considered Black v Sumitomo Corpn9 and Kneale, Underhill LJ concluded The defendant had been made aware disclosure that there was not a requirement that of the CFA which fulfilled the policy In order for the court to have a claimant in a pre-action disclosure embodied in CPR 44.3B, although not jurisdiction to make an order under application had to show, as a matter in the technically correct away. The CPR 31.16 for disclosure before the of jurisdiction, a prima facie case substance of the rule had been commencement of proceedings, it which is more than a merely complied with ([46]). Conveying was not a requirement that the speculative ‘punt’. There was no information on the funding applicant have an arguable case in jurisdictional ‘arguability threshold’ in arrangement in the way the claimant those proceedings. CPR 31.16. All that has to be shown is did had no discernible impact on the that the applicant and respondent conduct of the litigation. might be parties to subsequent proceedings. Beyond that, the Norris J was also influenced by the fact that refusing to grant relief would leave question of pre-action disclosure was the second claimant liable to pay the one of discretion.
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