Dishonesty on facts relating to limitation is fundamental to a claim

A claim for noise induced hearing loss was found to be fundamentally dishonest in respect of a claimant’s pleaded dates of knowledge.

AB v (1) Secretary State for Energy & Climate Change (2) Carillion Construction (Contracts) Limited (3) Slipform Construction Limited (4) AMEC Building Limited

Introduction

Following an application by the Third Defendant for a finding of fundamental dishonesty, supported by a later application by the Fourth Defendant, a claim for noise induced hearing loss was found to be fundamentally dishonest in respect of a claimant’s pleaded dates of knowledge.

Weightmans represented the Third Defendant and its former employers liability insurers, Zurich Insurance PLC.

The facts

The claimant alleged that he had been employed by the third defendant between 1972 and 1974 as a labourer and bricklayer. The third defendant was a dissolved company and the claim proceeded against its former employers’ liability insurer, Zurich Insurance PLC.

The claimant pleaded that it was not until November 2013 at the earliest when he had obtained the necessary ‘knowledge’ required under the Limitation Act 1980 to commence his claim. He claimed that he had first began to notice problems with his hearing in around August 2013 and the symptoms were initially minor, being an occasional low pitched ringing sound in his ears. He stated that in November 2013 he had heard a radio advert about tinnitus, hearing loss and working in a noisy environment and thought it applied to him.   Subsequent Part 18 responses stated that it was early 2014 when he first learnt that his hearing loss could be due to exposure to noise and that such hearing loss could be attributed to his exposure with the first defendant.

However, the first defendant had access to social security records which revealed that the claimant had made an application to the DWP in 1992 for occupational deafness benefit and had undergone audiometry. The claimant had denied ever making any claim for industrial disease benefits. The evidence was presented to the claimant’s solicitors, who discontinued the claim and subsequently came off-record after the first and third defendant filed defences pleading fundamental dishonesty.

Third Defendant’s application

The third defendant made an application pursuant to CPR 44.16 and sought to enforce the costs liability following the discontinuance. The third defendant argued that the claimant had been dishonest by putting forward dates of knowledge that he knew not to be true. The claimant had gone further than simply relying on false dates but had actively denied making any claims for benefits and had repeatedly relied on those false dates when questioned. Only when documentary evidence was produced did the claimant attempt to deal with the issues.

The claimant represented himself as a litigant in person at the hearing of the third defendant’s application. He was given an opportunity to file witness evidence in response to the allegations but failed to do so. Instead, the claimant argued that he had forgotten about the 1992 claim for occupational deafness benefits and that he felt pushed by his former solicitors into making the claim.

Judgment

District Judge Searl heard the application on 23 March 2018 and found that the claimant had applied for benefits between May 1992 and June 1993 and attended for audiometry in relation to that application. Further, by 1992 the claimant had an acknowledged awareness that he was deaf and that it was related to his occupation. The claimant’s allegations that he could not remember the benefits claim or the audiology were not accepted.

The Part 18 Responses were held to be deliberately and knowingly inaccurate and dishonest. The offending paragraphs of the Particulars of Claim were also found to be dishonest and designed to mislead the court and the defendants. The suggestion that the claimant felt pushed into making the claim by his solicitors was not supported by evidence and his former solicitors were not there to respond. In any event, he had signed the Part 18 Responses himself.

DJ Searl held that all of these issues were fundamental to the claim. On the balance of probabilities, she found that the claim for hearing loss was fundamentally dishonest. The QOCS veil was lifted and the third and fourth defendants were awarded their costs of defending the claim.

Comment

This was a key result in establishing the scope of “fundamental” in relation to applications for a finding of fundamental dishonesty.

Limitation is often a key battleground in claims for noise induced hearing loss. In this instance, the claimant had been found to be dishonest in respect of whether his claim was brought in time within the confines of the Limitation Act 1980. He had actively sought to mislead the court and the defendants into thinking that the claim was in time and thereby deprive them of a limitation defence.

The learned Judge, sitting in a court that is no stranger to deafness claims, established that the claimant had been dishonest and concluded that such dishonesty was fundamental to the claim. The District Judge’s decision is a welcome reminder that limitation is a key pillar of any personal injury claim despite the presence of the equitable discretion under s.33 Limitation Act 1980. If claimants are dishonest in relation to when they noticed their hearing loss or when they attribute it to their former work, they can fully expect to bear the financial consequences of advancing a dishonest claim.

Jonathan Owen (Ropewalk Chambers) was instructed by Weightmans LLP.

If you have any question or would like to know more, please contact Paul Debney, Partner, or Andrew Ball, Paralegal, on 0151 242 6860 (andrew.ball@weightmans.com).

Share on Twitter