Revealed: fixed costs proposals for hearing loss claims

Fixed costs in noise-induced hearing loss claims took a major step forward today after agreement was reached by the claimant and defendant sides.

The Civil Justice Council (CJC) published a report making recommendations for fixed recoverable costs and improvements to claims management for NIHL cases.

Master of the Rolls Sir Terence Etherton, chairman of the CJC, said the claims process will be streamlined to encourage earlier settlement or resolution of cases. He stressed that the potential costs scheme is specific to NIHL claims and will be ‘complementary but not identical’ to the more general fixed costs system as proposed by Lord Justice Jackson.

The CJC sought to bring claimant and defendant representatives together to create a fixed costs system after a sharp rise in NIHL claims, from a reported 24,000 in 2010 to 57,000 in 2015. The figure peaked at 87,000 a year earlier. The recommendations have been sent to the lord chancellor for approval and they are likely to be adopted as government policy, subject to consultation.

Fees are set at a maximum of £4,000 for one defendant pre-litigation, spread over four stages. The limit increases by £500 for each defendant, up to three. Post-litigation, maximum fees are £9,187 where one defendant is involved, up to £12,261 where three defendants are named. Costs post-litigation are divided into three categories.

The recommendations exclude any case involving four or more defendants, but they do provide fixed costs both pre- and post-litigation. Costs include the involvement of counsel at the pre-litigation stage but they do not include any allowance for the trial itself. Although the working party agreed that fast track trial fees should remain fixed, they could not agree on a level.

Andrew Parker, chair of the NIHL working party and CJC member, said: ‘It is in both claimants’ and defendants’ interests that these claims are handled efficiently by both sides in the initial pre-issue stages, to avoid unnecessary costs being incurred and to ensure that all parties get the earliest possible resolution of a claim.’

As part of the recommendations, a new standard letter of claim and letter of response are proposed which will provide ‘meaningful’ information for both sides.

The Association of Personal Injury Lawyers, which sat on the working group, said the government must improve efficiency in the system for fixed costs to succeed. This should include standard directions across all courts so that cases can be more predictable and to prevent costs from escalating.

APIL president Brett Dixon added: ‘Fixed costs must not restrict the work a lawyer needs to carry out for an injured person’s claim to run, but fixed costs could work in a more efficient system. The group recommends improvements including early disclosure of audiograms and a new form for a letter of claim in the pre-issue process. These will not only cut out unnecessary work on both sides but also bring about a timely solution for the injured person.’