If you only ever heard the voices of insurance companies you could easily believe that lawyers who act for accidents and occupational disease are entirely responsible for the escalating costs of litigation. This is turn means that they are responsible for high insurance premiums. This in turn means that the government feels the need to ‘crack down’ on the so called compensation culture. It also leads to a distorted view of the real world. One leading business figure in Liverpool recently commented that ‘the no win no fee culture is a stain on modern society’!
Over the last 3 – 4 years it has become increasingly difficult to secure justice for victims.
So how about a story that redresses the balance. This is a case dealt with by EAD Solicitors. The names have been changed but every other detail is real.
Mr Smith complained of noise induced hearing loss caused by his work. Initial investigations confirmed that he did have some NIHL. He had worked in noise with 2 employers. A claim was intimated against both. It was not a huge value claim. At an early stage a Part 36 offer of £5,500 was made to both Defendants, D1’s share of which is £1,481.70 and D2’s share is £3,653.10, plus there was a small element that was not recoverable because of Holtby. D2 settled within a few weeks.
D1 argued causation and refused to settle. Court proceedings were issued. A second Part 36 Offer of £1250 was made. This was rejected. The court approved the instruction of a single joint engineer and allowed D1 to instruct their own medical expert. The engineer confirmed unprotected exposure to noise exceeded 90dB. D1 instructed a well-known ENT expert who argued that any hearing loss suffered by Mr Smith was de minimis and not therefore compensatable. He maintained that view following a joint meeting of medical experts. The matter progressed to a 2 day trial earlier this year. D1’s expert gave evidence. He made some concessions during cross examination. He then stated that he had changed his view substantially in recent months. He referred in particular to a paper that he had recently read. This took the Mr Smith’s lawyers and experts by surprise. The judge adjourned the trial for further reports from both experts.
Reports were duly exchanged and the trial relisted in July 2017. Shortly before the new date, D1 offered £1k plus costs. This was accepted. This was almost 3 years after the first offer and almost 2 years after the second offer. D1 achieved a saving of just £481.70 from the first offer and just £250 from the second.
Mr Smith’s costs have been drawn at over £66k plus costs of assessment. D1’s costs are in the region of £25-£30k based on cost estimate provided at listing stage. So the insurers of D1 are shelling out the best part of £100k to save between £250 and £481.70.
I don’t think further comment is needed.