Case Study : Industrial Disease Claims Costs
We were recently instructed by a Claimant law firm who deal with personal injury claims, to recover their legal costs following a case involving a Claimant who suffered serious injuries at work.
Facts of the Case: The Claimant was subjected to working in an unsuitable environment, which resulted in an industrial illness, specifically a respiratory disease developing. Due to the pain and suffering the Claimant experienced as a result of poor working conditions, they contacted a firm of industrial disease lawyers. Once they had obtained legal advice, the Claimant decided to pursue an industrial disease compensation claim. Proceedings had to be issued and ultimately, the case was allocated to the Multi-Track due to its complexity, and was subject to Costs Budgeting. The Claimant was ultimately successful in claiming compensation for the injuries caused by health and safety breaches, and unsafe working conditions. As a consequence, the Solicitor was entitled to recover their costs following the acceptance of a Part 36 Offer, and ARC Costs were subsequently instructed to recover the industrial disease claims costs.
Injuries: The Claimant suffered marked and progressive respiratory symptoms up to June 2016. At their peak, these symptoms caused a respiratory disability in the region of 30%
Date Claim Initiated: 17 June 2016
Date Claim Settled: 19 March 2019
Complexities of the Case:
Following service of the Claimant’s Letter of Claim and request for disclosure, the Defendant failed to provide disclosure within the required time limits, giving the Claimant no choice but to make an application Pre-Action Disclosure request, resulting in additional time and costs incurred in the claim.
As a result of the Claimant’s working environment, they suffered complex respiratory injuries, requiring a Consultant Respiratory Physician expert to provide a report detailing their opinion as to whether the unsafe substances in the workplace had led to the symptoms subsequently developed by the Claimant, and to thereafter conclude the prognosis arising from the injuries suffered. The Claimant was confirmed as having suffered complex respiratory injuries as a result of his working environment, requiring an expert for to provide an opinion as to whether the unsafe substances in the workplace had led to the symptoms subsequently developed by the Claimant, and to thereafter conclude the prognosis arising from the injuries suffered.
Proceedings were protectively issued in the County Court Money Claims Centre in January 2017 and served on the Defendant in April 2017
The Defendants denied liability for the claim based on causation and thereafter instructed their own respiratory physician and an occupational hygienist to provide additional reports, resulting in further additional costs incurred.
At the Costs and Case Management Conference, the Defendant was given permission to obtain their own expert evidence, and the Claimant’s Costs Budget was approved in the sum of £72,481.00.
Following an examination of the Claimant, the Defendant’s medical expert provided a report in which he confirmed that the Claimant’s employment led him to suffer from work exacerbated asthma and the dust/fumes were capable of irritating the respiratory tract and due to his hyper-reactive airways of the Claimant.
The Occupational Hygienist report confirmed the Defendant’s breach of duty and thereafter, the Defendant and Claimant put forward Part 35 Questions, to which the expert responded.
An application for further Part 35 Questions to the Occupational Hygienist was made by the Defendant, which was dismissed by the Court and costs were awarded to the Claimant.
The medical experts prepared a joint medical statement however, both experts were in strong disagreement with regards to the issues of causation. An application was therefore made for the experts to provide oral evidence at Trial, which was granted in late December 2018.
Various witness statements were disclosed by both the Claimant and the Defendant, beyond what had initially been expected at the CCMC, as well as video evidence, obtained by the Claimant, of an incident which took place in the workplace.
A Notice of Trial was made shortly thereafter, and the claim was listed for a 4-day Trial starting on the 1st April 2019.
The Claimant made an application to rely upon a fifth video and to amend the Particulars of Claim which was granted at an application hearing. Following this, the Defendant put forward a Part 36 Offer to the Claimant, with a view to settling the claim.
Settlement and Damages: The compensation awarded to the Claimant was £11,000.
Following the application hearing, the Defendant on the 13th March 2019, proposed a Part 36 Offer in the sum of £5,000.00. After further negotiations, the Claimant on the 19th March 2019, proposed an offer in the sum of £11,000.00, which was accepted by the Defendant on the same day.
How Did ARC Costs Assist?
In order to bring a claim, a Solicitor must be able to successfully fund the matter. The matter was funded by way of Conditional Fee Agreement, meaning the costs were only recoverable on a successful conclusion of the case.
ARC costs provided assistance throughout the claims process for this matter, and particularly during the litigation process. Assistance was initially provided via the preparation of Costs Budgets, and subsequent Budget negotiations .
Budgets also had to be later updated and adjusted to reflect a change in claim circumstances, for which additional budgeted costs were secured. Finally, ARC Costs prepared and negotiated the Bill of Costs, and settled Points of Reply, and ultimately were required to lodge the matter for a detailed assessment hearing in respect of costs. As the claim circumstances had substantially deviated from that originally foreseen at the CMC stage, the Bill of Costs served totalled £112,714.70.
A Good Reason to Depart from a Costs Budget
ARC Costs prepared an updated Costs Budget for the Claimant Solicitors which reflected the different trajectory the claim undertook from that which was originally envisaged at the CMC hearing on the 27th November 2017. The Defendant, however, refused to consider the Claimant’s updated costs budget and/or file a copy of their own. Ultimately, the case settled before an application could be made for revised Costs Budgets however, the Defendant had been put on notice for almost a year that Costs Budgets needed to be updated given the unforeseen disclosure and witness evidence in the case.
During negotiation of the Bill of Costs, the Defendant Solicitors refused to make an offer and in their Points of Dispute, used the argument that a ‘good reason’ to deviate from the approved Costs Budget would be required, and averred that there was no such reason to deviate from the approved Budgets.
Following preparation and service of Points of Reply outlining the extent of notice given to the Defendant, and their failure to engage in discussions, ARC Costs then lodged the claim for detailed assessment. The Judge listed the matter for a preliminary hearing to discuss “good reason to deviate from the Costs Budgets”, and both parties were required to file statements. ARC Costs’ Thomas Higginbottom prepared a witness statement detailing the evidence in support of ‘good reason’ to deviate, and in the run-up to the preliminary hearing, the Defendant made a substantially increased offer for costs.
Settlement of Costs
The increased offer for costs from the Defendant was £75,000. ARC Costs further negotiated an increase to £80,000 for the Bill of Costs, upon which instructions were received to agree costs.
The original Costs Budget was in the sum of £52,000, which would have been the maximum recovery (net of VAT and Bill preparation costs), had a good reason to deviate from the Costs Budget not been proved.
By settling the claim for costs in the sum of £80,000, the Defendant clearly agreed that there was a ‘good reason’ to deviate from the Budget, and almost £20,000 in additional costs were recovered.
This case is an example of where making a proactive action to apply to vary the Budget would have avoided arguments in detailed assessment, and using the retrospective argument of ‘good reason’. There were delays of over a year in the application, which could have been avoided, had the Defendant not been obstructive in agreeing to updating Costs Budgets. ARC Costs would therefore recommend in these instances that once 14 days’ notice is given for revised Costs Budgets, an application should be made to the Court if the other side has failed to engage in any meaningful discussions.
How Can ARC Costs Assist You?
ARC Costs are highly experienced in dealing with all legal costs disputes, with a specialist team dealing with industrial disease claims. We have had great success in handling and negotiating costs in industrial disease claims, including matters for repetitive strain injury, hand arm vibration syndrome, respiratory and lung disease, and occupational cancer.
The recovery of costs in industrial disease claims can be particularly complex due to their often multi-Defendant nature, complex evidence, and causation challenges, which is why it is important to instruct a specialist Costs Draftsman to deal with this type of costs claim.
We can assist in recovering legal costs by drafting your Costs Budgets and Bills of Costs, as well as conducting detailed assessment proceedings and negotiating your Bill of Costs with the other side before advising on whether to prepare Points of Reply, or as to whether to take the claim to a Detailed Assessment Hearing.
To get in touch to find out more, contact us via email at email@example.com, or by telephone on 01204 397302. For more information on legal costs, please find out more about our speciality areas of expertise and our services on our legal costs page.
Request Your Free Quotation
Contact us today for your free, no obligation quotation. Our team are on hand to help.