Fundamental dishonesty in industrial disease cases

Over recent years, there has been a rise in noise induced hearing loss claims. One might have thought that, given the difficulty and complexity of noise induced hearing loss cases, ‘fundamental dishonesty’ would be unlikely to be a live issue in such cases.

The risk is that any case where the claimant’s evidence is not preferred at trial could then be deemed to be fundamentally dishonest.

The question that arises is: when a judge uses words to describe the claimant’s evidence such as ‘inconsistent’, ‘evasive’, and ‘not the truth’, is it enough to find a claimant ‘fundamentally dishonest?’

In James v Diamanttek [2016], a claim for noise induced hearing loss, Mr James was employed by Diamanttek as a diamond driller and then a plant operator between 2003 and 2013.

The job required the claimant to work in a noisy environment and the case turned on a dispute as to whether the employer, Diamanttek, provided ear protection and whether its use was enforced.

The claimant’s case was that he had not received ear protection and that he had not received any training or warnings as to the potential harm of working in a noisy environment.

This was disputed by Diamanttek who were able to adduce evidence that the claimant had been provided with personal protective equipment (PPE) throughout the whole course of his employment.

The deputy district judge dismissed the claim finding that ‘the claimant has not been telling the truth’ about his use of hearing protection.

However, in relation to the question of fundamental dishonesty, the judge found that whilst the claimant had not been telling the truth, his dishonesty did not equate to him being a ‘dishonest person’.

The defendant appealed the decision and citing Gosling, HHJ Gregory agreed that the test in Rule 44.16 had been met.

In short, the use of the hearing protection was ‘fundamental’ to the case and as the trial judge had found the claimant had lied about this issue, the test was satisfied and QOCS protection was removed.

In Holderness v Crossland Plastics Limited [2018], a claim for noise induced hearing loss was brought, where it emerged that the claimant had brought a similar claim seven years previously and had lied about his date of knowledge.

In June 2011, Ray Holderness brought a claim for noise induced hearing loss. His then solicitors, Heptonstalls LLP, served a letter of claim on his previous employer, Crossland Plastics Limited, confirming that the claimant had entered into and signed a conditional fee agreement which would attract a success fee if the claim was successful. The employer's insurers, Allianz, denied the claim and eventually closed their file having heard nothing from the claimant for some time.

Almost seven years later, in March 2018, Allianz received a second letter of claim; this time from Slater and Gordon Legal Solutions. The letter of claim again alleged the claimant had suffered noise induced hearing loss, due to employment with four former employers, including the now defunct Crossland Plastics Limited.

However, it emerged that the claimant had already issued proceedings in the claim, in December 2017, some three months before serving the second letter of claim.

Within the issued proceedings the claimant had signed a statement of truth verifying the contents of his particulars of claim which included the assertion that the claim had been brought within three years of his date of knowledge for the purposes of sections 11 and 14 of the Limitation Act 1980. In particular, the claimant claimed he only became aware of his hearing loss in December 2014 after attending a hearing loss clinic where he was advised that his hearing loss may be due to noise exposure.

The claimant also informed his medical expert, Professor Jarrod Homer, at his examination in March 2018 that he had only been aware of a hearing problem for approximately three years (i.e. since March 2015) and that "before then, he had always considered his hearing to be 'normal' for his age, gradually getting worse".

This could not of course have been true in light of the 2011 claim which had been abandoned.

After sending a copy of the 2011 letter of claim to the claimant's new solicitors (making clear the existence of the first claim) they quickly filed a notice of discontinuance. The defendant made an application to have the notice of discontinuance set aside, to seek a finding of fundamental dishonesty against the claimant, and for an order reversing the claimant's QOCS protection.

The hearing of the application took place before District Judge Heels at Huddersfield County Court. The claimant appeared in person, his solicitors having declined to represent him apparently once they were made aware that he had apparently lied about his date of knowledge in relation to his hearing loss and the possibility it was related to his employment.

The claimant admitted making the earlier claim in 2011 but claimed that he did not think he had been fundamentally dishonest in bringing a second claim. He explained that he was enticed into making a second claim by what he described as a very persistent and dishonest claims handler who had cold-called him from the now defunct claims management company Zebra Claims.

The claimant said he had told the claims handler about the previous claim and that he was now 'timed out', but was repeatedly told by the Zebra Claims representative that given that the claim had not gone to court, nobody would ever know about the earlier claim. He claimed he was also told that if he made the claim again, he would receive around £10,000 in compensation. With this advice and enticement, the claimant eventually relented and agreed to go along with the second claim.

He was then referred to Slater and Gordon who contacted the claimant to progress the claim. At the hearing the claimant confirmed that he had read the particulars of claim, had signed the statement of truth, and that he knew it was a lie. He also accepted that he would have continued with the claim if he had not been found out.

DJ Heels found that the issue of limitation is a fundamental part of litigation and therefore the claimant's lies had gone to the heart of this claim. As such, the finding of fundamental dishonesty had to be made.

The judge set aside the notice of discontinuance and overturned the claimant's QOCS protection enabling the defendant to recover its costs of the action.

Whilst clearly each case will turn on its facts, these cases send out a significant warning to dishonest claimants that the opportunity of seeking a finding of fundamental dishonesty either under s57 of the Criminal Justice and Courts Act to have the entire claim dismissed, or in relation to the loss of QOCS costs protection under CPR 44.16, applies to all types of injury claims, including disease claims such as Noise Induced Hearing Loss.