No time to waste or delay

Courts regularly experience trends which result in an influx of claims above the anticipated norm. Currently, there are being issued a large number of noise-induced hearing loss (NIHL) cases.

Case management of NIHL claims will be by a district judge either in box work or at a hearing. I am able to say that in many courts there is a similar approach to certain key aspects.

Allocation

The majority of claims are within fast-track limits and are often valued at less than £10,000. Consequently, when considering allocation the judge is mindful of CPR 1.1 and the requirement to deal with a case ‘justly and at a proportionate cost’.

Parties frequently seek allocation to the multi-track, citing complexity due to arguments on limitation, breach of duty, or causation, none of which are on their own a good enough reason, as district judges, who in most courts conduct fast-track trials, regularly hear such arguments. Another reason is the trial will take in excess of one day due to the number of issues in dispute. The answer to this problem may on limited occasions be to order a split trial and to hear limitation first. This often leads to an early resolution of this issue by either a concession from the defence or a notice of discontinuance filed by the claimant.

Expert evidence

The only medical evidence obtained prior to case management will be from the claimant. Defendants will sometimes seek a direction for a repeat audiogram followed by part 35 questions, and for me this is uncontroversial.

Alternatively, the court’s permission may be requested for the defendant to rely on its own medical report. This is frequently met with opposition from the claimant, even on those claims where the only issue in dispute is causation.

Many judges will in these circumstances grant such permission because to refuse such a direction is tantamount to defending the claim with one arm tied behind one’s back. In other claims, and again with proportionality in mind, I do not think it harsh to at least expect part 35 questions to have been asked of the claimant’s expert on those parts of the report with which the defendant takes issue.

There is no reason why, having asked those questions, the defence cannot then apply to rely upon its own medical evidence. Delay is rarely an issue due to the time taken to obtain the acoustic engineering evidence.

As for acoustic engineering evidence, this should always be from a single joint expert by way of written report with no oral evidence. So, I suggest you do not waste the judge’s time with applications for each party to rely upon its own report. Do, though, please stop wanting to use the same two or three experts that district judges are constantly asked to approve and whose timescale for the preparation of a report is, in some cases, nine months hence.

Avoid delay

Remember, fast-track cases should be concluded within 30 weeks of case management. There are experts out there who can produce a report (many of which are desktop reports as the defendants have often ceased trading) within a shorter timescale.

So, to avoid delay, agree the acoustic expert before you file your directions questionnaire, provide the court with the CV, timescale, and costings, and ask your expert to pencil in their diary the report filing date. This way by the time the court’s direction is made you will not have delayed your expert’s instruction by some two to three months.

District Judge Glennis Corkill sits at Barnsley County Court and is a judicial member of the Civil Justice Council NIHL Working Party

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