England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
MERCANTILE LIST

		10 June 2011

JUDGMENT
______________________________________________________________________
235. This judgment follows on from the principal judgment which was handed down on 10 May 2011. In case the matter should go to appeal, I have thought it would be helpful to use in this judgment paragraph numbering which is sequential to that of the principal judgment.
236. A reader who comes to this judgment without prior knowledge of the litigation will find the essential background reading in paragraphs [1]-[27], [115]-[140], [192] and [193] of the principal judgment.
237. This judgment deals with what have been called the Schedule A claims. It was at one time thought that the court might not be required to analyse the Schedule A claims. For reasons which I need not set out, an examination of these claims has proved to be necessary.
238. In relation to the handling of those claims, I have found that Mr Duffy did not owe to Stripes the special duty of care said by Mr Stripe to have been incumbent on Mr Duffy, that is, that any Veras claim which was not certain to succeed should be returned to Veras before the end of the original or extended grace period. Mr Duffy was, rather, subject to the general duty of care owed by an employed litigation solicitor to his principal but in the context of the particular characteristics of work which came to Stripes through Veras. I repeat here just two passages from the principal judgment:

[126] Mr Duffy's case is that he was not subject to any obligation specifically imposed by Mr Stripe. He was, of course, bound to carry out his work carefully and competently. He summarised the relevant criteria during his oral evidence as "diagnosis; a solvent employer or an insurer; and a confirmed date of knowledge." By 'diagnosis' in this context is meant a report from an audiologist which demonstrates that there has been hearing loss, and an opinion from an ear, nose and throat consultant to the effect that the hearing loss is work-related. Mr Duffy would, I am sure, accept that the information-gathering which would be required in order to assess the merits of a claim would include: obtaining and reviewing the client's GP and (if there were any) hospital records; obtaining and reviewing occupational health records; and obtaining from the Revenue a list of all the client's employers. I do not think it necessary to expand on the significance of any of this information, which will be obvious to anyone with experience of personal injury practice. Mr Duffy would also accept that, if he were without any of this information at the end of the grace period, he should (unless the case were such that it was by then clear that it should be unwound) seek an extension of time so that he could complete his investigation…

[136] My conclusion therefore is that Mr Duffy owed Mr Stripe, as his employer, no more than a general duty of care. The scope of this duty must, of course, depend on the particular characteristic of the Veras claims, which is the arrangement for funding disbursements. In view of the potential liability of Mr Stripe under the funding agreement (which Mr Duffy acknowledged when giving evidence), it was important that cases which looked doubtful should be returned at the end of the grace period or any extension which might be obtained. Put another way, although the criterion for proceeding was no more than a 51 or 55 per cent prospect of success, the assessment of cases at the end of the grace period should have been carried out in a very thorough manner.

239. As I mentioned in the principal judgment, 33 of the original 38 Schedule A files remained for examination at the end of the case. My findings on the files are set out in Appendix III. In short, I have found that Mr Duffy was negligent in his handling of 19 out of the 33 surviving claims.
240. As regards damages on files on which negligence is established, the claim made is for the profit costs incurred after the date by which the case in question should have been returned to Veras and the disbursements incurred thereafter. This is the same basis as that on which the corresponding claim on the Schedule B files was raised. I have dealt with this in paragraph [158] of the principal judgment. For the reasons given there, I propose to adopt the same approach in regard to the Schedule A files, that is, to allow two-thirds of profit costs. There is one exception, the case of Graham (File J31) where an award on this footing would not have produced a fair result.
241. The aggregate of the claims made on the Schedule A files is £53,527.31 in profit costs and £1,165.91 in disbursements. The latter figure is low because the greater part of Stripes' liability for disbursements was avoided under the settlement of the Impact litigation. In the event, on those files on which I have found liability, there were no claims for disbursements, so the award of damages will be in respect of profit costs alone.
242. This approach produces the following result

File	Profit costs x 2/3
Aitken (J2)	1,712.00
Anderson (J3)	300.00
Bough (J7)	400.00
Colcombe (J12)	850.00
Evans (J21)	750.00
Eyre (J22)	834.66
Fletcher (J24)	626.00
Glover (J25)	950.00
Graham (J31)	400.00
Herbert (J38)	228.66
Hussain (J40)	644.66
Legender (J45)	902.66
Morgan (J50)	850.00
Myers (J51)	543.66
Roberts (J56)	400.00
Rowley (J59)	776.00
Speck (J67)	1,408.33
Townend (J74)	500.66
Walley (J78)	974.66
Total	14,051.95

[243] Accordingly, a further judgment in favour of Stripes will be entered in the sum of £14,051.95.

Peter Langan Mercantile Judge, North Eastern Circuit

10 June 2011


APPENDIX III : SCHEDULE A CLAIMS Note : Except where otherwise stated, all files relate to claims in respect of noise-induced hearing loss

Aitken (File J2)

244. The file was opened on 2 September 2005. The grace period expired on 12 March 2006. The file was closed on 4 May 2007.
245. The GP records were received on 9 March 2006 and were reviewed on 31 March 2006. The review disclosed that the client had been seen by an ENT specialist in 2002. In a letter of 16 April 2006, the client informed Mr Duffy that he had been advised on 28 November 2002 (I think that it may in fact have been 28 August of that year) that his hearing loss was "probably noise-induced."
246. There were several criticisms of Mr Duffy's conduct of this claim, at least one of which (his failure to review the GP records within the grace period) was accepted by him as well-founded. There was clearly scope for argument that the primary limitation period had expired in 2005, and Mr Duffy accepted "that we had a risk on date of knowledge."
247. Stripes' case is that the claim should have been rejected at or very soon after the end of the grace period. Subject to one qualification, I agree. It is possible, although I think it unlikely, that an application for extension of time under section 33 would have succeeded: but I will assume in Mr Duffy's favour that a reasoned decision to make such an application would have been justifiable. Mr Duffy referred to section 33 during his oral evidence, but plainly no application was made and I have not been referred to any material which shows that serious consideration was given to the making of an application. The prospect of an application succeeding would clearly diminish with the passage of time. I would therefore characterise Mr Duffy's mishandling of this file in the following way: that he failed within a short period after the end of the grace period either to return the case to Veras or to launch a section 33 application. Instead the case merely drifted along until after Mr Duffy's departure from Stripes, following which (inevitably as I see matters) the file had to be closed.
248. The claim is for £2,568 profit costs. Two-thirds of that sum is £1,712.

Anderson (J3)

249. The file was opened on 11 September 2006. The grace period expired on 25 January 2007. The file was closed on 24 January 2008.
250. Mr Duffy accepted this case when he reviewed it at the end of the grace period although by that stage he had not received the client's occupational health records. When these were obtained on 2 November 2007, many months after Mr Duffy had left Stripes, they disclosed that on 11 May 1992 the client had received the results of a hearing test which showed that he had suffered hearing loss and had been advised to wear hearing protection when at work.
251. It is said that Mr Duffy should have rejected the case no later than 30 November 2006. The choice of date rests on the pre-action protocol for disease and injury claims, which requires records to be produced within 40 days of a request.
252. Mr Duffy's handling of this file was not creditable. He was, in my judgment, in breach of duty in failing expeditiously to obtain the occupational health records and in signing up for the case before he had obtained them. But to say that they should have been obtained by 30 November 2006 is something of a counsel of perfection; and one cannot help observing that Stripes continued to run this claim for many months after, on the case as now put, it should have been rejected. Where, in my judgment, Mr Duffy failed was in not seeking an extension of the grace period towards the end of January 2007 and in chasing the records more vigorously between the beginning of that month and his departure from Stripes. In terms of money, his contribution to the loss sustained on this file must be a small one.
253. The claim is for £2,175.51 profit costs. The period of loss covers 14 months and, on a very rough time apportionment, costs were running at approximately £150 a month. I regard Mr Duffy as responsible for three months, which is £450, and two-thirds of that is £300.

Bough (J7)

254. This claim was for tinnitus as well as hearing loss.
255. The file was opened on 7 February 2006. The grace period expired on 3 July 2006. The file was closed on 1 March 2007.
256. The complaint here is that Mr Duffy failed to ascertain that the intended defendant company, with the same name as the client's employer, had in fact been incorporated many years after the employer company had been dissolved; and that there was apparently no insurer liable to pay out on the claim. It is said that the identification of a solvent defendant or insurer is a priority upon opening the file. The information is readily available at Companies House and from the Association of British Insurers ('ABI'). It is said that the case should have been returned to Veras by 1 March 2006.
257. The dates on this file are of central importance. The HMRC records were received on 7 June 2006, within the grace period, and showed that the client had been employed by H Tams Limited during the 1960s. The ABI search was carried out on 31 August 2006 and was returned negative on 1 October 2006. It looks as though no search was carried out at Companies House.
258. There was, in my judgment, mishandling of this file, but the claim against Mr Duffy is pitched too high. I do not agree that it was part of his duty to ensure that there was a solvent employer or an insurer with liability within three weeks of being instructed. He should, however, have done so by the end of the grace period or a short extension of the period, in this case, say, by 31 August 2006. However meritorious the claim, if at that point there was no prospective defendant who was a good mark for damages, the file should have been returned.
259. I assess the loss, using the same rough time apportionment as in the case of Anderson: paragraph [253] above. The claim is put at £1,023 profit costs over a period of just over 13 months. That works out at about £80 a month. There seems to me to be culpability in respect of the last 7 months and a few days of the period. That would give a figure for claimed loss of profit costs of about £560, two-thirds of which would be £374. As the costs were running at a little more than £80 a month and there is a culpability period of slightly more than 7 months, I adjust this upwards to £400.

Caple (J10)

260. The file was opened on 23 February 2006. The grace period expired on 23 June 2006. The file was closed on 5 December 2007.
261. There were a number of difficulties with this case. There is, however, a single complaint, which relates to the late obtaining of the occupational health records: they were in fact received after Mr Duffy had left Stripes. The records disclosed (this is the way in which the complaint is pleaded) "that it was at least arguable that the client's date of knowledge was around 22 January 1984" and that the case should have been rejected no later than 30 April 2006.
262. In my judgment, this case falls with the rejection of the "almost certain to succeed" contention. I hope that the parties will not think that I am making a cheap point when I say that the fact that there is "at least an arguable" limitation defence does not of itself pull the case below the 51 or 55 per cent defence threshold. Even when one takes into account what was said in the ENT consultant's report, which was received within the grace period and which contained some indication of awareness of hearing loss over a period in excess of three years, this does not seem to me to be a case which should have been returned. It is perhaps something of a jury point, but it is to be noted that the file was kept open at Stripes for many months after the departure of Mr Duffy.
263. Accordingly, I find that there is no liability in respect of this claim.

Colcombe (J12)

264. The file was opened on 25 July 2005. The grace period expired on 4 January 2006. The file was closed on 8 August 2007.
265. Mr Duffy received the GP records on 3 October 2005, within the grace period, but did not review them until 20 January 2006. They contained a letter of 8 August 1996, from a specialist who had examined the client and had diagnosed hearing loss. It is said that this made it "at least arguable" that the date of knowledge was in August 1996 and that the file should have been returned to Veras in October 2005.
266. This is, in my judgment, putting the case on the "almost certain to succeed" footing, and the file cannot be said to have been mishandled on that basis. But the matter does not end there. By the date of the specialist's report of 11 February 2006, it was clear that the client had been exposed to noise over a long period of employment (1946 to 1998) as a pattern weaver, that the noise was such that it was impossible to communicate with other workers without shouting at a distance of only 4 feet, and that ear protection was offered to employees "at a very late stage." Further enquiry of the client showed that ear protection had been made compulsory in the late 1980s. It seems to me that by March 2007 it should have been clear to Mr Duffy that the client's position on date of knowledge was weak, and that the claim had no more than a fragile prospect of success. The case should have been returned at that stage.
267. The profit costs claimed are £1,760, and these relate to a period of 22 months. On my findings, the file was kept open for 16 months or so after the case should have been sent back to Veras. I would therefore reduce the claim to £1,280. Two-thirds of that sum is £853.33, which I round down to £850.

Coleman (J13)

268. The file was opened on 8 June 2006. The grace period expired on 1 November 2006. The file was closed on or soon after 8 May 2007.
269. This case was dealt with by Ms Williams under the supervision of Mr Duffy. I should say (and it is pleasant at last to be able to say something complimentary) that Ms Williams appears to have done her work on the file in a conscientious manner. She received the GP records on 7 July 2006, reviewed them, and on 25 July 2006 told Mr Duffy of her concern about limitation. She had noticed a letter of 28 June 2000, in which the GP had informed a consultant "that there is a past history of noise exposure." Mr Duffy told Ms Williams to go back and sort the matter out with the GP. Stripes' case is that the file should have been rejected on or shortly after 25 July 2006. It was in fact rejected as falling below the 50 per cent success threshold on 7 May 2007.
270. Mr Duffy's suggestion about going back to the GP was not a particularly sensible one, as it was unlikely that the doctor would remember what he had been told 6 years previously. Nonetheless, for reasons which I can express quite briefly, I do not think that there is any culpability on this file.
271. Mr Duffy's pleaded case on this file is that the claim should have been proceeded with. I will assume, for the purpose of testing the case being made against him, that the decision to drop the claim which was made in May 2007 was correct. That decision was, however, expressly made on the basis of a 50 per cent success threshold and, in my view, in circumstances in which the chances of success on limitation could not be ruled out. The draft statement from the client which is on the file suggests that, when he was at work, he was ignorant of the connection between noise from machinery and his deafness (he had never been issued with protection, nor had he been given any relevant instruction). In other words, even if the claim on a full analysis fell below the 50 per cent bar, it was not so obviously bad that failure to return the file to Veras could be regarded as negligent. If the claim was not so obviously bad in May 2007, it cannot have been so in July 2006.
272. It follows that there can be no award in respect of this file.

Craighead (J14)

273. The file was opened on 8 August 2005. The grace period expired on 19 March 2006. The file was closed on 12 November 2007.
274. The GP records were reviewed by Mr Duffy on 1 February 2006. These contained an entry for 17 February 2000: "C/O deafness. Used to work as engineer for 20 yrs. [Illegible word] of noise." It is said that this made it arguable that the date of knowledge was 17 February 2000 and that the case should have been returned to Veras on or shortly after 1 February 2006.
275. In my judgment, while the case against Mr Duffy here might well be sound on the "almost certain to succeed" basis, the jejune entry to which I have referred would not have justified an early rejection of the claim on the 50 or 55 per cent threshold. In other words, Mr Duffy was justified in taking further time to investigate the claim. I have looked at the client's statement, which refers to exposure to noise between 1974 and 1997, hearing difficulties occurring only in the last year of employment, and realisation of a possible connection between noise and deafness as a result of a conversation with a friend in about June 2005. It seems to me that to take a firm, negative view of the client's prospects in February 2006 would have been premature.
275. Again, this is not a case in which I am prepared to make a finding of negligence.

Evans (J21)

276. The file was opened on 25 July 2005. The grace period expired on 4 March 2006. The file was closed on 14 March 2007.
277. The occupational health records were not received until June 2006. They included an audiometric record form dated 16 April 1998. Mr Duffy's view, expressed to the client in a letter of 13 June 2006, was that the records appeared to contain "no reference to you having been diagnosed as suffering from occupational deafness."
278. Stripes' primary case is that the file should have been rejected by no later than 30 September 2005, 40 days after a request for the occupational health records. I approach the question of time for obtaining records as I did in the case of Anderson: see paragraph [252] above. Mr Duffy should, in my judgment, have chased the records more vigorously, and should have obtained them by the end of November 2005. Further, contrary to the submission made by Mr Foster, I do not agree that the case would then have appeared borderline or well arguable either way. The questions which were put to the client in the course of the 1998 examination, and the answers that he gave (he was suffering from deafness, working on a noisy job, and wearing protectors), demonstrate, to my mind, a strong case for his being fixed with the requisite knowledge in April 1998. I regard Mr Duffy's view of the records as far too optimistic. I conclude that the file should have been returned by the end of November 2005.
279. The claim is for £1,286 profit costs in respect of 18.5 months delay before the file was closed. I regard the period of culpable delay as 16.5 months which, doing the rough time apportionment which will now be familiar, takes the claim down to £1,147, two-thirds of which is £764.66. I round the award down to £750.

Eyre (J22)

280. The file was opened on 28 March 2006. The grace period expired on 2 September 2006. The file was closed on 11 July 2007.
281. Mr Duffy reviewed the GP records on 14 August 2006. These showed that the client had been diagnosed by a specialist in October 1999 as having "a typical noise induced hearing loss pattern." Stripes' case is that this raised such risks on limitation that the case should have been rejected. The pleaded response is that the detailed witness statement, which was dated 9 August 2006, showed that this was a good claim which should have been proceeded with.
282. I agree with the view subsequently expressed in an Advice from counsel that the case was "plainly out of time." The witness statement shows that the client had worked in a succession of noisy environments and that, in one job as long ago as 1975, ear protectors had been provided. This would, in my opinion, be enough to fix him with knowledge of the connection between noise and deafness, and he should have made that connection when his hearing began to deteriorate in 1999. This file should have been returned to Veras at an early date.
281. The claim in respect of profit costs is for £1,252, two-thirds of which is £834.66.

Fletcher (J24)

282. The file was opened on 3 August 2005. The grace period expired on 27 January 2006. The file was closed on 6 July 2007.
283. To my mind, this is one of the clearer cases. On 19 January 2006, Abigail Morrison, an employee of Stripes who was working under Mr Duffy's supervision, informed Mr Duffy in writing that the client had been having hearing tests at work for the last 10 to 15 years and that the claim appeared to be statute-barred. This flashed an amber, if not a red, light as to date of knowledge and made a quick inspection of the occupational health records imperative. On 20 January 2006 or a day or so later (I cannot decipher the handwriting) Mr Duffy accepted the case, without seeking an extension of the grace period, and without thereafter pursuing the occupational health records. When the records were received on 20 October 2006, they confirmed that the client had been having regular hearing tests at work. Not surprisingly, the claim was dropped shortly after Mr Duffy left Stripes. In my view, it should never have been continued after January 2006.
284. A doubt has been raised as to whether Mr Duffy remained the fee-earner throughout the relevant period. I have looked at the file, and letters from Stripes continue to bear Mr Duffy's reference, 'AFD', as late as March 2007. It is only after Mr Duffy had left the firm that one finds the reference changing to that of Mr Coulthard.
285. The claim is for £969 in respect of profit costs. Two-thirds of that sum is £646.

Gleeson (J28)

286. The file was opened on 1 July 2005. The grace period expired on 19 December 2005. The file was not closed until in or after April 2008.
287. There is in this case a discordance between the principal criticism which is directed at Mr Duffy and the reason why, after his departure, Stripes gave the client pessimistic advice about the likely result of the case. That advice was based on perceived difficulties with limitation: but I do not think that the difficulties were of such an order that it is suggested that they should have led Mr Duffy to return the case to Veras at an early stage. The main point which is made against Mr Duffy is that there were conflicts between the answers by the client in the client questionnaire about his various jobs and the employment details supplied by HMRC. The client does, indeed, appear to have been muddled. There was no indication that the client was attempting to mislead anyone. The problem was of the kind which is dealt with by constructing an accurate chronology as to which the client can conscientiously sign a statement of truth, which is an ordinary part of the litigation process. It did not constitute a reason for returning the case to Veras.
288. It follows that I make no finding against Mr Duffy on this file.

Glover (J29)

289. The file was opened on 13 October 2006. The grace period expired on 9 March 2007, but was extended (generally, rather than to a specific date). I take the date on which the file was closed to be 10 December 2007, which is the date advanced by Mr Foster and one of the alternative dates put forward by Mr Pomfret.
290. Mr Duffy requested the occupational health records on 30 November 2006. The client's former employer did not respond, and it was only after Mr Duffy had left Stripes that, on 10 May 2007, a letter chasing the matter was written. That did not have the desired effect, and the records were not obtained until October 2007, when an application was made for pre-action disclosure. When the records were examined, it transpired that at an audiometric testing on 15 March 2005 the client had been "advised to wear [hearing defenders] at work and when shooting." It is said, on the basis of the client's witness statement, that this is a case in which date of knowledge was arguable. I find the statement of little help on the point. I think, rather, that the connection between noise and deafness must have been brought home to the client in the context of the audiometric examination. The claim was one which should not have been pursued.
291. Mr Duffy appeared to accept in cross-examination that he should have returned the file to Veras at the end of the grace period. I think, however, that such failure as there was on his part was not causative of any great loss to Stripes. The period over which the claim is made runs from 31 December 2006 to 10 December 2007, just over 11 months. Given that the former employer was being un-cooperative, I do not think that one can assume that, even with the best of efforts, Mr Duffy would have obtained the records before 1 March 2007. After he had left Stripes there was further, unexplained, delay in commencing the pre-action disclosure proceedings. I therefore regard culpable delay on Mr Duffy's part as starting on 1 March 2007 and as having ceased to be causative of loss to Stripes by 31 August 2007, by which time they should by one means or another (pressure in correspondence or earlier issue of the application) have got hold of the records.
292. The claim in respect of profit costs is £2,837.76. I deduct from that sum £227.10, which are the profit costs (exclusive of VAT) on the pre-action disclosure application, as these were incurred through the intransigence of the intended defendant and not through any negligence on the part of Mr Duffy. That leaves a balance of £2,610.66, six-elevenths of which is £1,423.99, two-thirds of which is £949.33, which I round up to £950.

Graham (J31)

293. The file was opened on 18 August 2005. The grace period expired on 1 January 2006. The file was not closed until December 2008 or thereabouts.
294. The GP records were received on or before 2 November 2005. They were not reviewed (by Ms Morrison, working under Mr Duffy's supervision) until 18 January 2006. They included a letter dated 10 January 2000 from a consultant to the GP, stating that the client's "hearing loss is compatible with excessive noise to which she was exposed whilst working in an engineering factory." Mr Duffy accepted in cross-examination that this raised "a clear difficulty on date of knowledge", which is something of an understatement, as it is scarcely credible that neither the consultant nor the GP would have failed to draw to the client's attention the connection between noise and deafness. This was a fatally flawed case which should have been returned to Veras.
295. The problem from the point of view of Stripes is that, inexplicably as it seems to me, the case was allowed to run on for a further year. Nothing was done for about six months, and then there was some activity, including, in March 2008, an application for pre-action disclosure. Mr Coulthard certainly had problems with the client, recording crisply in one note that he did not believe her. I have to confess that I do not think that there was much point in carrying on with this case after Mr Duffy's departure from Stripes.
296. The claim here is for £2,259.24 running from 16 November 2005 until closure of the file and £166.25 disbursements. I do not know when, or for what purpose, the disbursements were incurred. I have found it impossible to do the usual rough time apportionment on this file, given that one matter which is clear is that little work was done by Stripes during the first three or four months when they could (and, I think, should) have taken the action which they now say Mr Duffy should have taken as early as November 2005. The best that I can do on this file is to award a round sum, which should be a modest one. I assess the damages at £400.

Hamlett (J35)

297. The file was opened on 1 July 2005. The grace period expired on 19 December 2005. The file was closed on or soon after 12 October 2007.
298. This case is quite different from any of the others so far examined. The GP records were received on 11 November 2005. They undoubtedly raised a serious question as to date of knowledge. The client worked in the docks at Hull, and there was in the records a letter dated 23 March 2000 from the company doctor to the GP. The writer said that "we have asked Mr Hamlett to consult you as we have noticed a quite marked hearing deterioration over the past several years" and that "I have reinforced my previous advice to him to wear hearing protection." It is said that the file should have been rejected on or soon after the records were received.
299. The distinctive feature of the case is that in July 2007 the employer settled the case for £2,500, inclusive of damages and costs. This was treated by Stripes as a settlement in respect of damages only, so that the money went to the client and nothing was recovered by way of costs from the employer. It is said that Mr Duffy acted contrary to the interests in Stripes in keeping the file open.
300. I am not prepared to make a finding of liability on this file. The outlook on limitation can hardly have been as bleak as is suggested, otherwise the settlement would not have been achieved. As was said by Mr Foster, rightly in my judgment, the fact that the compromise was agreed supports the view that the decision to keep the file open was one which it was reasonable to take. If a sum of money is recovered for a client on what is said to be a poor case, I see no reason why solicitors should not seek at least some of their costs out of that money.
301. I therefore make no award in respect of this case.

Herbert (J38)

302. The file was opened on 12 January 2006. The grace period expired on 9 June 2006. The file was closed on 4 June 2007.
303. This case raised a problem on date of knowledge. That there was a difficulty was apparent from the GP records which were received on 9 June 2006. How serious the problem was is apparent from the client's witness statement, which was signed on 4 July 2006: hearing protection was provided on the day he started work in 1971; there were signs in different areas of the workplace which said that hearing protectors must be worn; and, although it was not "a main feature", "hearing protection would have come up" on safety courses. A finding of at least constructive knowledge at an early date was, in my view, inevitable. There was accordingly no reasonable basis on which Mr Duffy could have kept this case alive.
304. The claim is a small one, for £343 profit costs. I award two-thirds of that sum, which is £228.66.

Hussain (J40)

305. The file was opened on 8 August 2005. The grace period expired on 6 April 2006. The file was closed on 14 September 2007.
306. The claimant had been exposed to noise while he was employed by a company in the Turner & Newall group for a short period in the 1970s, probably only for two and a half years, but possibly for 4 years. By the end of the grace period, it was plain that the defendant company was in administration and that there was a continuing dispute with its insurers as to their liability under the relevant policy. There were other problems with the claim, including a potential difficulty on causation. The case eventually died a death, when another potential defendant and insurers could not be traced.
307. Stripes' contention is that Mr Duffy should not have allowed this claim to proceed beyond the grace period. I agree. It was so beset with problems that the likely benefit to be derived from proceeding far outweighed the costs which would be involved. In cross-examination Mr Duffy agreed that he should, at least, "have gone back to Veras to see if they would extend the grace period." He does not appear to have done so.
308. The claim for profit costs is put at £967, two-thirds of which is £644.66, which is the sum which I award.

Karim (J42)

309. The file was opened on 25 July 2005. The grace period expired on 1 January 2006. The file was closed on 13 March 2007.
310. The client's exposure to noise at work was between 1967 and 1971. Mr Duffy obtained the hospital records on 7 October 2005, but did not examine them until 24 January 2006, which was after the grace period had ended. They contained a letter from an ENT surgeon to the client's GP which was dated 9 July 1997 and referred to the client's attendance at a clinic two days earlier. The referral was in respect of headaches and blurred vision and a potential diagnosis of sinusitis. In fact, sinusitis was not found: but in his letter the specialist referred to "mild to moderate… hearing loss having a pattern consistent with the effect of noise trauma." It is said that, in the view of the impact which this letter might have on a finding as to date of knowledge, the case should have been returned to Veras on or soon after 7 October 2005.
311. Mr Duffy accepted in cross-examination that he should have reviewed the hospital records before the end of the grace period. Further, he seemed somewhat muddled as to the effect in law of a finding that a claimant had sufficient knowledge for Limitation Act purposes, but I accept that he may at this stage have been getting understandably weary of ploughing through the files in the witness-box. That having been said, I do not think that he was wrong to continue with the case. It would certainly have fallen foul of the "almost certain to succeed" test, but the evidence against the claimant on limitation was not all that strong, while she herself had an explanation of sorts about the relevant consultation. If the case was not plainly below the 50 or 55 per cent bar, Mr Duffy cannot fairly be criticised for continuing with it.
312. It follows that nothing is recoverable in respect of this file.

Legender (J45)

313. The file was opened on 25 July 2005. The probable date of expiration of the grace period was 21 December 2005. The file was closed on 1 August 2007.
314. The GP records were received on 24 October 2005, but were not examined until after the period had expired, on 24 January 2006. They contained a letter dated 27 April 1998 from an ENT registrar to the GP. This records an examination of the client, who "worked in the building industry for many years and was exposed to noise for long periods of time." When this was put to the client, he replied that the cause of his hearing loss had been discussed with him and said that there had been no reference to his working in a noisy environment.
315. The case here is put against Mr Duffy on the same basis as in that of Karim, just discussed. The ENT doctor's letter raised the issue of date of knowledge, to the extent, it is said, that the case should have been sent back to Veras on or shortly after 24 August 2005. In fact, I think that Mr Legender's position was a good deal weaker than that of Ms Karim. In the Legender letter, there is a specific reference to exposure to noise at work over long periods, and it is highly improbable that cause and effect did not form part of the discussion between doctor and patient. I do not think that the client's denial, coming many years after the written record, of any discussion of working in a noisy environment, would carry weight with a court.
316. In cross-examination Mr Duffy conceded that there were in this case real difficulties with limitation. The degree of difficulty was, in my judgment, such that the case should have been returned to Veras at an early stage.
317. An award in respect of this file must follow. The profit costs claimed are £1,354, and two-thirds of that sum is £902.66.

Lowe (J46)

318. The file was opened on 24 August 2005. The grace period expired on 25 January 2006. The file was closed on 30 January 2008.
319. Stripes' case on this file is that the case should have been returned immediately after it was introduced to the firm. The audiogram which was provided by the introducer had a configuration which was (as is common ground) atypical for a noise-induced deafness case. Whether this was destructive of the claim is something which would not be resolved until experts' reports had been obtained, by which time the client would be liable for the Veras loan. The case was therefore wholly unsuitable for the Veras scheme.
320. I do not think that, in the circumstances of Ms Lowe's case (it might be different in other cases), potential difficulty stemming from the audiogram made the case one which should have been returned on the 50 or 55 per cent test. My inspection of the file throws up the following significant points. First, within three weeks of the file being opened, an ENT consultant expressed the view that the client's deafness was in part noise-induced. Second, Stripes thought it appropriate to keep the case running for many months after Mr Duffy left the firm. Third, when the file was closed, the reason given to the client had nothing to do with matters of expert opinion: it was that the employer would be able to prove that it took all reasonable steps to protect its workers from noise-induced hearing loss.
321. Accordingly, there can be no finding against Mr Duffy on this file.

Morgan (J50)

322. This was a hand-arm vibration syndrome case.
323. The file was opened on 28 November 2005. The grace period expired on 6 October 2006. The file was closed on 4 October 2007.
324. When this case came to Stripes, it was apparent from the client questionnaire that the client first knew of his condition in 1979. Mr Duffy in his oral evidence said that the case raised "a very real limitation issue." It was nonetheless accepted on the day that the file was opened, even though it was not then possible to contact the client, there was no confirmed date of knowledge, and no ABI search had been done. Ms Morrison reviewed the file on 1 September 2006 and discussed the case with Mr Duffy. It was decided that the case should be unwound. That decision would certainly seem to accord with Mr Duffy's view of the merits and, in my opinion, with an objective analysis of the file. The case was, however, allowed to continue, and Mr Duffy simply does not know why no steps were taken to return it to Veras. It is clear that this is what should have been done.
325. The claim is for £1,667.50 profit costs over a 13-month period from 1 September 2006. I do not think that Mr Duffy should be held liable for the last 3 months of the period. Ten-thirteenths of £1,667.50 is £1,282.69, two thirds-of which is £854.84. I round this down to make an award of £850.

Myers (J51)

326. The file was opened on 19 July 2005. The grace period expired on 19 December 2005. The file was closed on 24 October 2006.
327. The GP records were received on 10 October 2005, but were not examined by Mr Duffy until 25 January 2006. They contained a note of a consultation with an ENT specialist on 18 August 1998, when the doctor recorded that the client was having hearing problems, that he had been exposed to noise for 25 years, and that he had been working without ear protection. As Mr Duffy acknowledged, this clearly raised an issue on date of knowledge. He did not write to the client until 9 March 2006 and, when the client telephoned on the following day, the matter appeared even less happy, because in 1998 "the ENT clinician even suggested that he make a claim if the company he worked for were still active." This was accordingly a case of actual, not just constructive, knowledge.
328. Ms Morrison suggested in a note of 31 March 2006 that the case needed to be unwound. As I understood Mr Duffy in cross-examination, he did not dissent from this view, but was unable to explain why the file had not then been sent back to Veras. It plainly should have been, and there is here a clear instance of mishandling of the claim.
329. The profit costs claimed are £815.50. There is no basis for cutting the claim down by a time apportionment, so I award two-thirds of that sum which is £543.66.

Potts (J53)

330. The file was opened on 3 August 2005. The grace period expired on 9 January 2006. The file was closed on 8 May 2007.
331. This is yet another case in which the medical records were obtained in good time, on 26 October 2005, but were not reviewed by Mr Duffy for some two months, after the end of the grace period. When the records were reviewed, they were found to contain referrals by the GP for hearing loss, on 13 August 1991 and again on 15 March 1995. There is a reference to the client's work as a plater, and the ENT specialist regarded the hearing loss as noise-induced. Stripes' case is that the file should have been returned to Veras upon or shortly after the records were received.
332. Mr Duffy acknowledged that there was a limitation problem, and the claim was eventually rejected by insurers on limitation grounds. This, in my judgment, is one of those cases which should certainly have been rejected on the "almost certain to succeed" criterion, but which can fairly be regarded as (just) getting over the lower threshold. The client's recollection was that he did not appreciate the connection between his loss of hearing and his occupation until he saw a leaflet from a claims company in September 2004: this was, I think, enough to justify keeping the claim on foot for a few months more, if only in the hope of achieving a compromise.
333. I therefore make no finding of liability on this file.

Roberts (J56)

334. The file was opened on 1 December 2005. The grace period expired on 5 May 2006. The file was closed on or soon after 11 April 2007. The last two of these dates are derived from my inspection of the file: the pleaded dates in Stripes' closing submissions are incorrect, but it is the case that no work seems to have been done on the case after 7 November 2006.
335. This case raised the same problem as that of Bough and related to the same employer, H Tams Limited: see paragraphs [256] and [257] above. It is said that the case should not have been allowed to proceed beyond the grace period.
336. As with Bough, the dates on the file are of central importance. The HMRC records were received on 3 April 2006, well within the grace period. The ABI search was carried out on 22 May 2006 and was returned negative on 1 July 2006. A Companies House search does not seem to have been carried out by Mr Duffy, but the putative defendant company sent to Stripes on 12 June 2006 a company search which showed that the wrong target had been selected.
337. I take the view that there was mishandling of the file and that the case should have been returned to Veras by 30 June 2006: see paragraph [258] above for the reasons.
338. The claim is put at £1,158 profit costs over a period of 6 months. There seems to me to be culpability in relation to about 3 months of the period. That would give a figure for profit costs of £579, two-thirds of which is £386, which I adjust upwards to £400.

Rowley (J59)

339. The file was opened on 23 May 2005. The grace period expired on 20 October 2006. The file was closed on 16 November 2007.
340. The client questionnaire was received by Mr Duffy on the day on which the file was opened. To the question "When did you first realise that your hearing loss was caused by your job?" the client answered "1978 onwards." The medical report, which was dated 7 June 2006 and was reviewed by Mr Duffy on 10 August 2006, showed that the client had been suffering from hearing loss for 30 years. The question of knowledge was not pursued in the follow-up letter to the client, sent on 10 August 2006.
341. This was, on the client's own admissions, a case of actual, not merely constructive, knowledge of many years standing. In my opinion, the file should have been returned to Veras more or less immediately. All that Mr Duffy could say about the complaint against him when he was being cross-examined was that there were "definitely problems on this one." I suspect that he simply did not read the relevant question and answer.
342. The claim is for £1,164 profit costs. I have inspected the file in order to decide whether any deduction should be made in respect of work unnecessarily done after Mr Duffy's departure from Stripes. In fact nothing was done over and above the necessary review which led to the decision to close the file, so the full amount of £1,164 is a proper basis for making an award. Two-thirds of that sum is £776.

Samuel (J61)

343. The file was opened on 9 March 2006. The grace period expired on 7 July 2006, but was extended for a further 30 days. The file appears to have been closed in around March 2007.
344. On 3 July 2006 Ms Williams had a telephone conference with the client and thereafter reviewed the file with Mr Duffy. Mr Williams appears to have raised a point on limitation; certainly, Mr Duffy took the view that there was no limitation issue. The question arose because the GP records showed that on 9 July 2002 the client had attended her doctor, who referred her to a specialist for a hearing test. For some reason the client failed to attend the appointment with the specialist.
345. It is now said that a constructive date of knowledge in 2002 was likely to be found by the courts. Because the client was a young woman and had been exposed to noise at work, it was probable that a court would decide that she should have appreciated the link between noise and hearing loss. Some reliance appears to be placed on the failure to attend the appointment. It is said that the case should have been returned to Veras shortly after 3 July 2006.
346. I would not say that this was a case without any limitation issue. It is, however, yet another claim which, although it might well have failed the "almost certain to succeed" criterion, seems to me to cross the 50 or 55 per cent bar without difficulty. I agree with Mr Duffy's observation during his oral evidence that "non-attendance at an appointment does not bear on knowledge of the cause of hearing loss." There will therefore be no award in respect of this claim.

Schofield (J62)

347. The file was opened on 31 August 2005. The grace period expired on 1 July 2006. The file was closed on 19 July 2007.
348. Mr Duffy accepted that this claim raised both limitation and causation issues. The limitation issue arose because the client told the ENT consultant who examined him for the purposes of the claim that he had been suffering from hearing loss for 3 to 5 years and from tinnitus for 5 to 7 years. The causation question surfaced when it appears from the occupational health records that the client had been exposed to an explosion. These matters were known to Mr Duffy before the end of the grace period. It is said that the file should have been returned to Veras.
349. Once again, this is a case which would have failed the "almost certain to succeed" test, but it does appear to me to have been so weak that it should have been rejected at an early stage. Against the negative factors must be set the fact that a review of the medical records disclosed no complaints about deafness to the GP; and in a witness statement signed on 30 March 2006 the client said that "it was only in the last two years or so" that his deafness had become noticeable. Further, after Mr Duffy had left Stripes, the file was closed only after taking advice from counsel on the merits of the claim, which suggests that it was not a plainly bad one.
350. It follows that nothing is awarded on this file.

Smith (Ann) (J66)

351. The file was opened on 31 August 2005. The grace period expired on 1 July 2006. The file appears to have been closed early in 2007.
352. This was, like the claim of Ms Lowe discussed at paragraphs [318]-[321] above, a case of an atypical audiogram. The audiogram was, however, seen by the claimant's expert ENT consultant, Mr Nassar, and it did not cause him to throw cold water on the claim: on the contrary his view was that, of a hearing loss of 106dB, 50 per cent was noise-induced and 50 per cent was constitutional. Mr Jones, the defendant's ENT consultant, reported on 14 December 2006: his conclusion was that the claimant had given "a very genuine account of her hearing problems but they are not due to noise exposure." The papers were almost at once sent back to Mr Nassar for a supplementary opinion. He produced both an opinion and an abstract. These are not as clearly expressed as one could wish but, in summary, they amount to substantial agreement with Mr Jones, a retreat from the position adopted in the first report, and a reduced assessment of the noise-induced hearing loss of 23dB. It looks from the state of the file as though the claim was dropped soon after this report was received.
353. I do not think that Mr Duffy can be faulted for proceeding with this claim as long as he did. It was, in my judgment, for the ENT consultant and not the solicitor to weigh up the effect of the audiogram. In other words, Mr Duffy was right to consult Mr Nassar notwithstanding the configuration of the audiogram, and he was right to continue with the case in the light of Mr Nassar's first opinion. When the case did eventually appear to be a shaky one, the file was (it seems) closed.
354. Again, this is not a claim in respect of which an award falls to be made.

Smith (Paul) (J65)

355. This was a hand arm vibration syndrome case.
356. The file was opened on 4 August 1985. The grace period expired on 19 December 2005. It looks as though the file was closed shortly after Mr Duffy had left Stripes.
357. This raises precisely the same question as the case of Papacharalambos, discussed at paragraphs [217]-[220] of the principal judgment. For the reasons there given, I am not prepared to say that the mere fact that symptoms did not appear within two years of the last use of vibrating tools should lead to an immediate return of the file. In this case, a consultant orthopaedic surgeon took a full work history from the client, and nonetheless gave unqualified support to the claim. To have closed the file at an early stage notwithstanding that opinion could itself have been the subject of fair criticism.
358. It follows that there will be no award on this claim.

Speck (J67)

359. The file was opened on 1 July 2005. The grace period expired on 19 December 2005. The file was closed on 11 May 2007.
360. The GP records were received on 5 October 2005, but were not reviewed until after the end of the grace period, on 27 January 2006. The records included correspondence of June 1986 between the nurse at the client's employer and his GP: the nurse reported that an audiogram had disclosed a degree of hearing impairment and asked for the GP's advice. The GP replied that the client should be "reallocated to a less noisy area." The client accepted in his witness statement that he was advised to move to a quieter working area.
361. Stripes' case is that the claim should have been returned to Veras on or shortly after the GP records were received. I agree. I find it very difficult to see how the client could have avoided a finding of actual knowledge in 1986. The combination of the hearing test and the advice to move to a less noisy area could not have failed to alert him to the connection between noise and deafness. Nothing was to be gained by allowing the case to run on. Indeed, when Mr Duffy met the client, he found him to be a poor witness.
362. There has been a minor controversy as to the accuracy of an attendance note made by Mr Duffy. Nothing seems to me to turn on that, and I do not propose to examine it.
363. The claim for profit costs on this file is £2,112.50, and I award two-thirds of that sum, £1,408.33.

Taylor (J75)

364. The file was opened on 31 May 2006. The grace period expired on 20 October 2006. The file was closed on 3 October 2007.
365. The GP records were received and reviewed on or around 27 June 2006. The hospital records were received and reviewed on or around 21 August 2006. The GP records showed that there was a longstanding history of hearing loss. The hospital records contained a letter of referral from the client's GP who had referred him to an ENT consultant in respect of hearing loss on 30 December 2002. On 3 March 2003 the consultant referred to an ear infection, "and I note his history of working in a noisy environment for over 30 years."
     
     [366] It is said that the file should have been returned to Veras on or shortly after 21 August 2006. I do not agree. This would be the result of testing the case by reference to the "almost certain to succeed" criterion. The matters to which I referred in the preceding paragraph showed that there might well be an argument on limitation, but nothing worse than that. When the client was contacted, after Mr Duffy had left Stripes, he was adamant that he had not realised that there was a connection between noise at work and deafness until he saw an advertisement in January 2004. It seems to me that, even if a date of knowledge outside the 3 year period were to have been established, it would have been so close to the period as to warrant a section 33 application.
367. It follows that I make no finding of liability on this file.

Townend (J74)

368. The file was opened on 11 July 2005. The grace period expired on 19 December 2005. The file was closed on 25 May 2007.
369. The case had considerable difficulties, stemming in part from the making of earlier and unsuccessful claims. There was a series of reports from an ENT consultant, Mr Zeitoun. The first report, dated 31 October 2005, was supportive of a diagnosis of noise-induced hearing loss. The second report, dated 10 May 2006, was more guarded, and in it the doctor said that a review of the client's hospital records was "essential to evaluate his claim." The records were sought by letter dated 8 June 2006 and were received sometime between 6 November 2006 and 31 March 2007: inspection of the file does not permit of greater precision. When the records were sent to Mr Zeitoun, he concluded that the client's deafness was constitutional in origin, and the file was closed.
370. Mr Pomfret rightly points out that obtaining hospital records before commissioning a consultant's report was one of Mr Duffy's own criteria. In his own correspondence with the client at an early stage of the case, he said that he was obtaining hospital records. They seem, in fact, to have been sought much later and only on the suggestion of the consultant. But for this lapse, for which I can see no excuse, the records would have led the consultant to give his negative opinion many months earlier.
371. The claim is for profit costs of £751 and I award two-thirds, £500.66.
     

Tyrie (J76)

372. This was a hand arm vibration syndrome case.
373. The file was opened on 19 July 2005. The grace period expired on 26 March 2006. The file was closed on 1 November 2007.
374. The sole complaint here is the same as that which I considered in the cases of Papacharalambos (paragraphs [217-220] of the principal judgment) and Paul Smith (paragraphs [355]-[358] above), namely, that a case of this kind should never be continued if it appears that the last use of vibrating equipment was more than two years earlier than the onset of symptoms. I find the complaint unfounded. The claim was backed by a medical opinion.
375. There is accordingly no award on this file.

Walley (J78)

376. The file was opened on 19 April 2006. The grace period expired on 1 September 2006. The file was closed on 14 September 2007.
377. The ENT consultant's report was dated 26 April 2006. The doctor stated that the client (whose last exposure to noise had been in 1991) "noticed a hearing loss during the last 2 to 5 years." Even though the client said in her statement that she did not realise the connection between noise and deafness until some in or after December 2005, this case was liable to be a close-run thing on limitation: on the most favourable view of what the client said to the consultant, there could well be a finding of constructive knowledge in 2004. The complaint against Mr Duffy is that the case should have been, but was not, fast-forwarded to the issue of proceedings.
378. In my judgment, the criticism is justified. Mr Duffy in his oral evidence seemed, and not only in relation to this file, to regard section 33 as a cure-all. It is not; and, as he was driven to accept, the longer the time-scale (including time elapsed since the last exposure to noise), the more difficult it is to rely on section 33.
379. The claim is for £1,462 profit costs, and I award two-thirds of that sum, which is £974.66.