I recently wrote about a Roberts Jackson claim for NIHL, where BLM successfully appealed Worcester County Court’s decision not to allow the defendants permission to obtain their own medical evidence (link to that article is here).

The case proceeded to an appeal before His Honour Judge Pearce-Higgins QC who stated:

“if there is to be a fair hearing, the defendant must have the opportunity of at least relying upon its own expert evidence. It is the sort of case where if there is to be a proper and fair hearing, I would expect the matter, at trial, to involve the hearing of evidence from both experts. In those circumstances, although the costs to be incurred may very well be disproportionate to the sum involved, justice, in my judgment, demands that there be equality of arms, and both parties should have the benefit of the expert evidence upon which they wish to rely” (emphasis added).

His Honour Judge Pearce-Higgins also awarded the defendant their costs totalling £8,623.30.

With the court’s permission, the defendant proceeded to obtain their own medico-legal report from Mr Phil Jones, Consultant ENT Surgeon, which concluded that the claimant did not have NIHL. As well as providing a defence in causation, Mr Jones’ report also provided the defendant with a defence in limitation as the claimant reported to him that he had complained of hearing loss for over 10 years. The claimant had also reported that he was aware that a noisy environment could cause hearing loss, as he had discussed this with his colleagues at the time. The claimant’s evidence was therefore clearly inconsistent.

Further to Mr Jones’ report a two-fold application was made. Firstly, that the claimant’s case be struck out for an abuse of process. BLM argued that the defendant’s costs, ordered at the Appeal for £8,623.30, were in excess of the agreed value of the claimant’s claim (£5,000). As this was a QOCS case it meant that even if the claimant was successful at trial, as costs incurred since the order far exceeded £5,000, the client no longer had any financial interest in the outcome. The claimant should have discontinued his claim in October 2015 following the successful appeal. Secondly, for limitation to be tried as a preliminary issue.

The court heard the defendant’s application and agreed that limitation should be tried as a preliminary issue. The issue in respect of an abuse of process was reserved until the trial.

Prior to the limitation trial, the claim was discontinued. Although the discontinuance was agreed on a drop hands basis, it was made clear to Roberts Jackson that this only applied as between the claimant and the defendant, and that we would not pursue the claimant for fundamental dishonesty. Accordingly, this did not preclude the defendant from making an application for a wasted costs/non-party costs order against Roberts Jackson directly.

BLM applied for a wasted costs/non-party costs order against Roberts Jackson Solicitors, arguing that Roberts Jackson’s conduct in continuing with the claim (after the interlocutory costs order had been made) enabled them to shelter behind QOCS, placing the risk, in respect of any adverse costs order upon the claimant’s shoulders. This is a breach of the Overriding Objective, namely that a case should be dealt with “justly and at a proportionate cost” and was a failure on the part of Roberts Jackson to protect the interests of the claimant.

Roberts Jackson referred the matter to their Head of Costs who advised they were keen to dispose of the issues without a hearing. Negotiations continued between the parties and our wasted costs/non-party costs application against Roberts Jackson was eventually settled for £30,000, which equated to 81.5% of the defendant’s costs incurred as a result of Roberts Jackson’s conduct.

While Roberts Jackson Solicitors has never expressly stated why it was keen to settle, we must presume that it was concerned that the application could set precedent in respect of QOCS claims, whereby interlocutory costs ordered exceed the value of the claim.

While on the face of it QOCS may preclude defendants from recovering their costs but in some circumstances a wasted costs or non-party costs application may well be an alternative way to apply pressure to claimant solicitors.