Noise claim struck out as abuse of process where the claimant lied about alternative noise exposure

In this noise induced hearing loss claim, Weightmans was instructed by AIG as employer’s liability insurer to represent Blackheath Engineering.

Christopher Evans v Blackheath Engineering and Ors; 9 August 2018 (unreported)

Executive summary

In this noise induced hearing loss claim, Weightmans was instructed by AIG as employer’s liability insurer to represent Blackheath Engineering.

Background

The claimant alleged occupational noise exposure against Blackheath Engineering and 4 other employers and denied any non occupational noise exposure in his medical report, which formed part of his Particulars of claim and which was certified with a statement of truth.

Weightmans’ Intelligence Team discovered through open source investigations on Social Media sites, that the claimant was a guitar player in a heavy metal band and therefore likely had significant non occupational noise exposure. Part 18 questions were put to the claimant and in his replies, which were again certified as true, he denied that he played an instrument at all, denied that he was a member of a band or that he attended music concerts.

Witness statements were exchanged and the claimant maintained his position that he had no noisy hobbies or other no occupational noise exposure.

We then served a statement from our Intelligence team which exhibited the Social Media entries showing that the claimant was a guitarist in a heavy metal band and that he had attended music concerts to listen to other bands in addition to performing himself. The claimant served a statement in response which sought to explain the apparent earlier ‘misstatements’. The claimant maintained he had not properly read the Part 18 replies and that his band membership had been restricted to one band for a period of 9 months in which he had only performed 6 times and when he did, he had worn hearing protection. Weightmans was able to show by further open source investigations that at least some of the contents of this second  statement were probably further lies; in particular that the claimant had played guitar in not one but 2 heavy metal bands and had played on many occasions covering almost the entire period of alleged noise exposure at work.

Weightmans applied to strike out the claim as an abuse of process based upon the fundamental dishonesty of the claimant in relation to his noise exposure and in the alternative for permission to amend the defence to plead fundamental dishonesty against the claimant. The other defendants made similar applications thereafter.

Shortly before the strike out application was due to be heard, the claimant’s solicitors obtained an order removing them from the Court record. The claimant did not attend the hearing but District Judge Campbell found that he was aware that the hearing was taking place. DJ Campbell went on to find:-

“it is absolutely crystal clear to this court that the claimant has sought to mislead to recover damages and has lied about membership of groups, and lied about his time in bands, how he has promoted himself and his exposure to noise which is wholly unrelated to occupational exposure, if there is any. He has sought to wriggle out of it by his second witness statement. This court cannot allow such behaviour to take place. For all of those reasons it is quite clear to the court that the court should exercise its powers under 3.4(2)(b) and I do strike out the claimant’s statement of case because they are an abuse of the court’s process.
Having made that finding clearly the order for costs which I will make can be enforced to the full extent under 44.15(1)(b).”

Comments

This was a multi track case, listed for a 2 day trial with the costs budgets of all parties totalling £210,000. The savings in terms of Court resource and potential cost are substantial.

This decision is a welcome reminder of the sanctions which follow when claimants are  caught trying to conceal inconvenient facts- whether in relation to noise exposure, date of knowledge, provision of hearing protection or other evidence deemed fundamental to their claim. Namely, the entirety of their claims will be struck out by the Court, QOCS protection displaced and enforceable costs orders made against them. If the court establishes that they have signed a false statement of truth they are also open to proceedings for contempt of court- which can carry a custodial sentence.

It is hoped that this claim will act as a salutary reminder to claimants and their advisors that the integrity of their evidence, however inconvenient, is paramount.

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