ARC Costs recently assisted on an industrial disease case, whereby the Defendant solicitors argued that the case should be subject to pre-1 October 2023 fixed Employer’s Liability costs. The Defendant Solicitors viewed the case as a low value personal injury claim which should have been submitted via the Portal, as opposed to a disease claim, and thus argued that legal costs should have been fixed costs only (as opposed to hourly rate costs).

It is important to note that this case took place before the October 2023 changes to fixed recoverable costs.

Industrial Disease Fixed Costs – An Overview

In October 2023, a number of changes were made to civil litigation cases in England and Wales. As part of these changes, fixed costs were introduced to claims worth under £100,000.

These claims include personal injury cases (including public, occupiers and employer’s liability claims), industrial disease claims, and road traffic accident claims. Fixed costs are due to be introduced later in 2024 for clinical negligence claims.

A new intermediate track has also been introduced for cases worth between £25,000 and £100,000. Claims valued between £1,500 (£5,000 for RTA) and £25,000 will be fast track claims in personal injury matters, and if non-PI then the lower limit of £10,000 still applies for fast track allocation. 

Those matters valued over £100,000 will be allocated to the multi track.

Fixed costs did not apply to industrial disease cases before 1 October 2023 unless they were a single Defendant case which settled on the MOJ Claims Portal. 

Fixed costs did however, apply to all RTA, EL and PL type cases with a value up to £25,000, and which had not been allocated to the Multi Track.

Post October 2023, fixed recoverable costs apply to most disease claims, with noise induced hearing loss claims attracting their own structure of fixed costs under Table 15 of Practice Direction 45, unless the claim falls within one of the exclusions under Annex E of the Pre-Action Protocol for Disease and Illness Claims.

Case Study – Facts of the Case

ARC Costs were instructed to assist on a disease claim matter to prepare a Bill of Costs.

The Claimant worked in an office and had experienced pain in her wrists due to inadequate computer equipment and desk setup.

Two years into their role, the Claimant began to notice a sharp pain in their right wrist following a change in her department. After wearing a splint for two months, the pain worsened so they attended their GP. The GP provided the Claimant with a sick note for two weeks.

On returning to work, the Claimant noticed a large bruise had appeared on her right wrist, extending up to the base of her thumb. They went to their local A&E department, and were referred to physiotherapy. The Claimant’s condition gradually improved, although they would still experience pain when lifting heavy items or during cold weather.

As a result of the accident, the Claimant had suffered pain, injury, loss, and damage, prompting them to instruct a Solicitor to pursue a claim.

The claim ran for three years, and an orthopaedic surgeon confirmed that the Claimant had limited range of movement in her right wrist due to a change in environment.

The Claimant’s symptoms were due to ulnar impaction syndrome since the wrist had to go into extreme ulnar deviation. This meant that the right wrist could only extend to 65° with a flexion of 50° due to the pain in her wrist, whereas her left wrist had an extension of 70° with a flexion of 80°.

The expert recommended obtaining a right wrist X-Ray to assess whether there was any dynamic ulnar variance. The expert also suggested that the Claimant might have ulnar impingement, and the reported subjective disability was reasonable due to the expert’s findings.

The Defendant filed and served their Defence on the Claimant. Therein, the Defendant admitted that a breach of statutory duty and/or negligence had occurred due to issues with the Claimant’s workstation. No admissions were made regarding the nature, cause, and/or extent of the injury, loss, or damage outlined in the Particulars, to which the Claimant was put to strict Proof.

Seven months’ later, a Notice of offer to settle was prepared and sent to the Defendant in the sum of £10,250, inclusive of general damages, special damages, and interest. The Defendant rejected this offer, but later offered a settlement sum in the amount of £9,750, which was accepted by the Claimant, thus concluding matters save parties as to costs.

Case Study – Costs of the Case

The costs of the case were substantial and included costs for solicitors’ time working on the case, medical expert fees, and Court fees.

The Defendant insurer argued that the matter was fixed costs as they believed it was a Low Value Employer’s Liability claim, which should have been submitted via the Portal, and that fixed costs should apply for an EL type claim (as opposed to a disease type claim).

The Claimant Solicitors instructed the ARC Costs team to prepare a Bill of Costs as they viewed that it was an exception to fixed costs and that standard hourly rate costs applied as it was industrial disease.

The Defendant argued that this was a one off accident which had led to the Claimant’s injuries; however, this was not supported by medical evidence and the Claimant Solicitors submitted this was a disease-type claim as the symptoms had developed over time and led to an ongoing condition.

Therefore, ARC Costs served the Bill of Costs informally to the Defendant and ultimately, following negotiations the Paying Party Defendant conceded the fixed costs argument and accepted that fixed costs applied.  A settlement of £12,000 on the Bill of Costs was ultimately agreed.

How can ARC Costs Assist with Industrial Disease Costs?

The Costs Draftsmen and Costs Lawyers at ARC Costs can assist on any industrial disease fixed costs or standard costs matter.

We can assist in the recovery of disputed fixed costs rates and disbursements by contacting the paying party in an attempt to obtain agreed costs, and in the event of non-agreement, the preparation and conduct of any application to recover fixed costs. We are able to assist in all matters, whether issued pre or post 1 October 2023.

We can also assist in the recovery of your costs at detailed assessment if the dispute relates to an hourly rates type matter. We can assist in the drafting of your bills of costs, points of dispute and replies to points of dispute. If an agreement cannot be reached as to costs, we can further assist by providing representation at detailed and provisional assessment hearings at Court.

It is important to note that post-1 October 2023, a number of exemptions to fixed costs apply in relation to NIHL claims as detailed in Annex E of the Pre-Action Protocol for Disease and Illness Claims.  Such exemptions includes military claims, cases suitable for allocation to the Intermediate or Multi Track, where there are large numbers of Defendants, or when certain arguments are raised by the Defendant in the Letter of Response.

If a case is exempt, hourly rates costs will apply and a Bill of Costs will need to be prepared.

If you require any free initial advice, or our assistance with regards to any aspect of costs, please email us at info@arccosts.co.uk, or contact us via the Contact Us page and one of the team will get in touch on the same working day. Our team can also be called on 01204 397302.