Noise induced hearing loss: Does Denton apply to a defendant’s application for medical evidence.

NOISE INDUCED HEARING LOSS: DOES DENTON APPLY TO A DEFENDANT’S APPLICATION FOR MEDICAL EVIDENCE? 

The Claimant sought to appeal a case management decision of District Judge Stapley at Middlesbrough County Court in the case of Crossen v British Steel and Tata Steel.  Elizabeth Jones acted for both Defendants at the initial application and at the Appeal.

Background

This is a noise induced hearing loss case.  The Claimant had obtained medical evidence to support their claim on issue.  Directions were given by a Deputy District Judge in September 2014 which allocated the claim to the fast track.  The directions given were in essence standard fast track directions.  These directions made no reference to the Defendant being given permission to obtain their own evidence but allowed the Defendant to raise part 35 questions. 

The Defendant asked part 35 questions to the Claimant’s expert on 2 occasions.  The replies were considered by the Defendant’s solicitors to be unsatisfactory.  The final response was provided in December 2014. 

In January 2015 the Defendant’s solicitor applied to the Court for permission to cross examine the Claimant’s expert at the trial which was listed for February 2015.  The Defendant’s application was heard by telephone.  At the hearing Counsel for the Defendant sought permission for the Defendant to have their own medical evidence.  The District Judge was concerned that the original order had not been made by a Judge designated to deal with industrial disease work. 

At the telephone hearing the District Judge ordered:

1. Re-allocate to the multi-track;

2. Trial vacated;

3. Defendant given permission to obtain their own medical evidence.

   Grounds Of Appeal

   The Claimant later sought permission to appeal the District Judges decision on the grounds:

1. The District Judge was wrong to give the Defendant permission to obtain their own medical evidence so close to the date of the trial and re-allocate the claim to the multi-track;

2. The District Judge was wrong in his decision and failed to apply the principles set out in Denton and Others v T H White Limited and Others [2014] EWCA Civ 96. 

   In summary the Claimant’s were trying to seek an extension of the ratio in Denton.  The Claimant’s submissions centred on suggesting the Defendant was “effectively” asking for relief from sanction.  Further the Defendant should have sought permission to vary the original order which was made on paper back in September 2014. 

   The Defendant responded to the Appeal on the basis this was a case management decision which was within the discretion of the Judge.  Further the Defendant had not breached any court order which related to the Defendant obtaining its own medical evidence. In response to the Claimant’s submission on Denton the Defendant’s case was:

1. The Claimant has failed to identify any breach;

2. The Defendant has not breached any CPR rule or practice direction;

3. There is no sanction which was to be applied.

4. This authority does not apply to the present case.

   The appeal was heard by Her Honour Judge Matthews QC at Middlesbrough County Court.  The Claimant’s appeal was dismissed and the decision of the District Judge up held for the following reasons:

1. The Defendant acted appropriately asking part 35 questions before seeking its own medical evidence.  The Judge considered it was likely an earlier application would have been unsuccessful if appropriate questions were not first put;

2. The Defendant was not in breach of a rule, practice direction or court order which related to the Defendant obtaining its own medical evidence.  It was wrong for the Claimant to argue that the principles of Denton applied;

3. The District Judge was right to consider all the circumstances of the case and consider how the case could be dealt with justly;

4. The case was not suitable for the fast track.  The Defence disputed breach of duty, causation and limitation which were complex issues;

5. The Deputy District Judge should not have been the person dealing with the directions.  The Judge accepted the comments of the District Judge at the telephone hearing that there are 2 designated District Judges at Middlesbrough County Court to deal with the industrial disease work;

6. The District Judge reached a pragmatic solution to further the overriding objective having considered all the issues.

   Conclusion

   The principles to be applied in Denton should be limited to breaches of the rules, practice directions or court orders.

   Defendant solicitors dealing with Noise Induced Hearing Loss cases should draft robust questions to the Claimant’s medical experts before seeking their own medical evidence.  In this particular case the replies from the expert were evasive and did not fully answer the questions which were put.  The District Judge commented at the original hearing that he was “concerned” with a number of issues in respect of the Claimant’s medical evidence.  In my view it is this which tipped the balance in the Defendant’s favour at the original hearing and demonstrates how crucial part 35 questions can be to the Defendant’s case and a tactical weapon to use to support an application for medical evidence.

   Her Honour Judge Matthews stated it would have been wrong for the Defendant to initially make the application for medical evidence before raising questions.  At that stage the Defendant could have been criticised and in the current era the Judge has the issue of proportionality firmly in mind. 

   It is preferable that Defendants ask questions at an early stage ideally before issue.  If questions have not been raised when Directions are being sought the Defendant solicitors should still reserve their position regarding the medical evidence until replies to questions have been received. 

   It must also be remembered that the pre-action protocol for industrial disease cases can often assist the Defendant when making an application for medical evidence paragraph 9.4 states:

    “The protocol recognises that a flexible approach must be adopted in the obtaining of medical reports in claims of this type.  There will be very many occasions where the Claimant will need to obtain a medical report before writing the letter of claim.  In such cases the Defendant will be entitled to obtain their own medical report”

   If Elizabeth can be of any assistance on such issues please do not hesitate to contact her in Chambers on 0113 2285049 or by e-mail at elizabeth.jones@parklaneplowden.co.uk

    1st June 2015