Clyde & Co have successfully defended a noise induced hearing loss claim that went to trial despite the Claimant making an oral application during the trial to amend the evidence that they wished to rely on.
The Claimant pursued a claim against the Defendant for noise induced hearing loss resulting from alleged exposure which had occurred between 1978 and 1990.
A single joint engineer was agreed to provide expert evidence. The evidence concluded that the noise levels were below the exposure limit.
In light of the conclusive evidence demonstrating that all noise levels were below the appropriate limit, the Part 35 questions served by the Claimant suggested an intention to contend that the Defendant had an early date of knowledge in 1987. However, the Claimant did not submit any application to amend the Statement of Case.
The Claim proceeded to trial and Counsel for the Claimant made oral representations seeking an adjournment to allow for amendments to the Statement of Case relating to the alleged earlier date of knowledge.
We argued that the Claimant had not previously indicated their intention to plead reliance on an earlier date of knowledge. Practice Direction 16 8.2 of the CPR expressly requires the Claimant to specifically set out "notice or knowledge of a fact" where he/she wishes to rely on them in support of his claim. In the absence of an express pleading, and in light of the conclusions of the single joint expert, we submitted that the Claim must fail on the basis of the Claimant's pleaded case as it stood at the date of trial.
Had the Claimant made efforts to amend pleadings at an earlier date; we would have defended the claim in a different manner, and likely elected to put our own Part 35 questions to the expert.
The District Judge agreed that the Claim could not succeed as pleaded, and the trial could not proceed. It would also have been unfair for our lay witness to be asked questions on the alleged earlier date of knowledge when there was possibly evidence available to address this point, which had not been disclosed in or added to their previous statement.
The District Judge weighed the practicalities and the costs of the amendments, found that the Claimant's request was lacking and dismissed the case in its entirety.
What can we learn
The District Judge made clear that the Claimant's representative was familiar with the relevant procedure and their obligations to the Court. He concluded that their actions would have caused unfair prejudice to the defence witnesses.
The value of the Claim was relevant to the Court's decision. The Claim was limited to the fast claims track, and the costs of allowing amendments to the Particulars of Claim and other parts of the proceedings would be far in excess of the sums that the Claimant could have expected to recover. With reference to the issue of proportionality it remains to be seen whether judges may take a more lenient approach to those claimants making similar applications where the claim carries a significantly higher value.
It shows that the Court will consider conduct and that it is not inevitable that late (or last minute) significant amendments to the pleaded case will be allowed, especially in claims with a modest value.
This article was co-authored by Matthew Archibald (Associate).
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