Here Claimants Have Mixed Success at Trial and Provides Clarity for Successful Defendants

13 October 2017 Edition 203 BC DISEASE NEWS A WEEKLY DISEASE UPDATE CONTENTS PAGE 2 Welcome PAGE 3 Welcome QOCS Exceptions in Multiple Defendant Cases: Bowman v Welcome to this week’s edition of BC Disease News. Norfran Aluminium Limited & Ors (B54YJ494) This week, we analyse the case of Bowman v Norfran Aluminium Limited & Ors (2017), which rules on the application of qualified one-way costs shifting (QOCS) PAGE 6 in cases where claimants have mixed success at trial and provides clarity for successful defendants. Additionally, we look at the judgment in Whalley v Provisional Damages Denied For Advantage Insurance (2017) which provides guidance on the cost Deterioration of Psychological consequences when a Part 36 offer is accepted after its expiry period. Condition: XX v Whittington Hospital NHS Trust [2017] EWHC Elsewhere, we discuss a recent example of whiplash fraud, committed by 2318 (QB) dissolved claimant firm, Asons. The Government are currently attempting to crack down on this issue by drafting new legislation. PAGE 7 Expired Claimant Part 36 Offers In the world of scientific research, we discuss the latest studies linking long working hours with the risk of strokes. and Costs: Whalley v Advantage Insurance (2017) In this week’s feature, we delve into the science behind head injuries in the football industry, both historic and present; especially as news outlets have PAGE 10 begun reporting cases of former professionals who have either died from, or Particulars of Claim and Relief been diagnosed with, degenerative brain diseases, allegedly as a result of From Sanctions: Chelsea Bridge heading footballs. Apartments Ltd v Old Street Homes Ltd (2017) Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. Invalid Service Appeal Granted As always, warmest regards to all. Invalid Service Appeal Granted: Barton v Wright Hassall [2016] EWCA Civ 177 SUBJECTS PAGE 11 QOCS and Claimant Mixed Success at Trial – Provisional Damages and Psychiatric Injury – Assessed Costs or Fixed Costs and Claimant Part 36 Offers – Asons Liable for Costs, Following Particulars of Claim and Relief From Sanctions – Email Claim Form and Valid Fraudulent Whiplash Claim Service – Asons and CMC Liable for Costs for Fraud – Asbestos Exposure Outside of Work – Increasing Diesel Fumes Claims – Working Hours and Atrial Fibrillation – PAGE 12 Brain Injury and Football. New Analysis of Non- Occupational Asbestos Exposure and Pleural Mesothelioma Diesel Fume Claims on the Rise? PAGE 13 Longer Working Hours Increase Risk of Stroke PAGE 14 Feature: Chronic Traumatic Encephalopathy in Football PAGE | 2 QOCS and Mixed Success In Multiple Defendant Cases: Bowman v Norfran Aluminium Limited & Ors (Newcastle Upon Tyne County Court, 11th August 2017) In edition 138 of BC Disease News, we included a feature in which we discussed the exceptions to claimants’ qualified one-way costs shifting (QOCS) protection. This week, we address the topic of QOCS and multi-defendant claims, particularly where the claimant is successful against one or more defendant but fails against the remaining defendant. Can the successful defendant seek to enforce an award of their costs against the damages recovered by the claimant from the losing defendant? This is an area of uncertainty within QOCS, with little case law. We commented in edition 138, that there was nothing within the rules to suggest that the defendants who are recovering their costs must have made damages payments themselves.1 However, this stance has been contradicted by the recent County Court decision in, Bowman v Norfran Aluminium Limited & Ors (2017),2 ruling on the implementation of (QOCS) in instances where there are multiple defendants to litigation – an area of legal murkiness. Before looking at the substance of the judgment, let us remind ourselves of the rules surrounding QOCS. The main two provisions being CPR r.44.15 and r.44.16: PAGE | 3 So then, r.44.15 deals with situations where the court’s permission is not required to enforce a costs order against the claimant and r.44.16 covers instances where the court’s permission is required. In Bowman, the claim was one for hand arm vibration syndrome and carpal tunnel syndrome, arising out of the claimant’s employment as a trim shop operative, from 2003 onwards. The claim was served on three defendants on 5 October 2015. The relationships between the defendants were such that the 2nd defendant had purchased assets belonging to the 1st defendant and, one month later, a separate company emerged – the 3rd defendant. The 2nd defendant argued that it had, at no point, employed the claimant. It described its alleged one month involvement as being the period between the transaction of assets from the 1st defendant (June 2009) and the date at which the 3rd defendant began trading (July 2009). The 2nd defendant argued that its details appeared on the claimant’s payslip because it provided payroll services to the 3rd defendant until April 2010. After having exchanged witness evidence, wherein the 1st and 3rd defendants confirmed that the 2nd defendant had not employed the claimant, the claimant discontinued the claim against the 2nd defendant, on 22 November 2016. The claimant went on to recover £20,000 at trial against the 1st and 3rd defendants. Subsequently, the 2nd defendant sought a costs award in its favour, under CPR 38.6, which states: The notes to the White Book 2017 (p.1195), provide further detail on when the court may ‘order otherwise’ under this rule. It states that the claimant must show: 1) A change in circumstance; and 2) Some form of unreasonable conduct on the part of the defendant. Considering this rule, HHJ Freedman, noted: ‘It follows that in the absence of a change in circumstance and some form of unreasonable conduct, there will be no good reason to depart from the usual rule that a claimant who discontinues must pay the costs of the party in respect of whom the action has been discontinued’. The claimant submitted that when the 2nd and 3rd defendants confirmed that the claimant was not employed by the second defendant, this constituted a ‘change of circumstance’. As to unreasonable conduct, the claimant pointed to the fact that the 2nd defendant failed to comply with the two requests made in June 2016 for evidence to demonstrate the claimant was not in fact employed by the second defendant. He also relied upon the fact that at no stage did the second defendant seek to strike out the claimant’s claim but, rather, allowed it to proceed for over a year until service of witness statements. HHJ Freedman, rejected both of these submissions and concluded that there was therefore ‘no basis for departing from the usual rule that the claimant should pay the costs of the second defendant upon service of the notice of discontinuance’. PAGE | 4 Having concluded that the claimant was liable to pay the second defendant’s costs, the next question which arose was whether the claimant was entitled to QOCS protection? Generally, the Civil Procedure Rule Committee has been in support of the application of QOCS in discontinued actions, justifying any alleged unfairness to defendants as ‘consistent with the general policy aim of QOCS protecting Claimants who are not, in broad terms, successful’. This view is in line with the accepted dicta that QOCS is a ‘self-contained code’ (Wagenaar v Weekend Travel Limited [2015] 1 WLR 1977) and that there can be no discretion to make any order that does not flow from QOCS. The 2nd defendant argued that it was entitled to set off its costs against the damages to be paid by the 1st and 3rd defendants to the claimant. It was submitted that on a plain reading of r.44.14, a defendant is entitled to recover its costs from the claimant out of damages paid to the claimant by another defendant. Further, where r.44.13 refers to ‘proceedings’ the 2nd defendant took this to mean the entirety of the claim, i.e. against all three defendants. Finally the defendant argued that in r.44.13 the words ‘any orders for damages’ must cover orders for damages made against other parties to the proceedings – as such this meant that because the 2nd defendant’s claim for costs arises from the same proceedings for personal injury as the claim against the 1st and 3rd defendants, the 2nd defendant should be entitled to recover its costs from the damages paid out to the claimant by the other two defendants. The rules in their entirety state: However, the claimant argued that the underlying premise of the QOCS scheme is that where a claimant is ordered to pay the costs of a defendant, the claimant never actually pays those costs but instead, sets them off against the damages payable by that defendant. It was argued, therefore, that this meant that the set off could only be in relation to the proceedings against the 2 nd defendant and since there was to be no payment of damages by the 2nd defendant, there was nothing to set off. Additionally, the claimant argued that if damages paid by the other defendants was taken in to account, there would in fact be no set off but rather a payment, which is not permitted under the QOCS regime. PAGE | 5 Addressing this issue, the judge agreed at stage. They therefore fall to be treated for decision and is therefore, not binding. But it para 35, that the concept of a set-off those purposes as separate proceedings’. will, as a matter of judicial comity, be imports a mutuality of liabilities whereby followed by other judges unless they are there are cross claims between a paying Interpreting these comments, HHJ convinced it is wrong.

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