Need advice? Call us now on 0845 653 7529
Keep up to date with all latest news
On Thursday 13th October 2016, a representative from JFS LLP’s Costs Team attended an Oral Review Hearing at Bolton County Court against Weightmans, who in this particular instance represented PZ Cussons (the Second Defendant), insured by Capita.
During the substantive NIHL matter, the Claimant pursued two Defendants from the outset and both Defendants put the Claimant to strict proof. The Claimant therefore proceeded to obtain medical evidence and upon disclosing the same along with a Part 36 offer, the second Defendant denied liability on the basis that the Claimant worked as a cleaner within the offices above the factory. The Claimant dropped the claim against the second Defendant and Capita then attempted to settle the claim on the basis that only Portal costs would be payable by alluding that the Claimant had been dishonest in her allegations against their insured in order to avoid the Portal.
A bill of costs was prepared and sent to Capita, who proceeded to instruct Weightmans to act on their behalf. Weightmans argued throughout the claim for costs that only Portal costs would be awarded at assessment and within their Points of Dispute, they sought to argue that the Claimant had been dishonest in order to avoid the Portal and sought to rely upon the medical report to support their contention. The Claimant within her Points of Reply argued that she honestly believed the Second Defendant had affected her hearing loss due to the loud and constant noise she was subjected too. The Claimant’s legal representatives were under a legal duty to fully investigate the claim, reminding PZ Cussons that they had initially put the Claimant to strict proof until they uncovered disclosure evidence. Furthermore, the Claimant sought to argue that had only PZ Cussons been pursued that the claim would have fallen out of the Portal in any event as liability was never admitted within the substantive matter.
The N258 Bundle was lodged and at Provisional Assessment, District Judge Evans, having considered the arguments, ordered costs to be assessed on the standard basis and advised that the costs claimed were proportionate. Weightmans requested an Oral Review Hearing seeking to challenge this point.
The Judge’s Final Decision
At the Oral Review Hearing on the 13th October, District Judge Evans advised that she had decided the preliminary point above based upon the information supplied within the N258 Bundle and advised that there is no obligation upon the Claimant to disclose medical evidence at a Provisional Assessment.
District Judge Evans continued by asking why the Defendant hadn’t supplied a copy of the medical report given their contention and the fact that they requested the hearing. However, due to the report not being disclosed, the District Judge advised that she could not make a ruling when it came to the factual evidence and would have to rule in favour of the paying party. District Judge Evans then proceeded to consider the Claimant’s contention in respect of liability. Despite the argument being one of hindsight, the Defendant could not provide any evidence to support any liability admissions on any case dating back to the 1980’s and furthermore, the Defendant had not objected to the Claimant obtaining a Part 8 Order which stipulated that costs would be assessed on the standard basis. District Judge Evans maintained her stance in respect of this argument and awarded the bill as previously assessed at £3,120.32.
The Claimant was also awarded her costs of the Provisional Assessment at £2,223.16 and also the Oral Review Hearing in full at £1,539.36. Permission to appeal was refused.
In conclusion, this is one of the rare instances that the Court will determine cost matters based upon the test of hindsight. Should paying parties wish to run cases such as these then they must be willing to disclose factual evidence in support of their dishonest claims and provide documentation in support of their willingness to comply with the Pre-Action Protocol for Disease claims.
Rebecca Whitworth – Senior Costs Manager
THE JFS COSTS TEAM ARE HERE TO HELP – DO NOT HESITATE TO CALL US ON 08456 537 529 FOR ADVICE OR EMAIL REBECCA DIRECTLY AT: email@example.com