One of the problems with CPR 45.23 and the fixed success fee regime for EL disease claims is the Scope and Interpretation section which states it applies where:
“(b) the dispute relates to a disease with which the employee is diagnosed that is alleged to have been contracted as a consequence of the employer’s alleged breach of statutory or common law duties of care in the course of the employee’s employment”
The difficulty is that it does not define “disease”. It may not seem like much of a problem for well recognised industrial diseases but it does create difficulties at the margins. For example, what about post traumatic stress disorder following an injury? Disease or not? Arguably assistance can be found in the Pre-Action Protocol for Disease and Illness Claims which states:
“This protocol is intended to apply to all personal injury claims where the injury is not as the result of an accident but takes the form of an illness or disease. … Disease for the purpose of this protocol primarily covers any illness physical or psychological, any disorder, ailment, affliction, complaint, malady, or derangement other than a physical or psychological injury solely caused by an accident or other similar single event.”
It is arguable though that one should not be used as an aid to construction of the other.
Now let’s look at the recent amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill recently voted through by the House of Lords:
“Exception for industrial disease cases
The changes made by sections 46, 48 and 49 of this Act do not apply in relation to proceedings which include a claim for damages for a disease, condition or illness (whether or not resulting in death) resulting from any breach of duty owed by an employer to an employee.”
Firstly, what the hell is a “condition”? A broken finger is a condition. It is rather less obviously a disease. What is intended to fall within the definition of “condition” that is not also a disease or illness? If nothing, why has it been included?
Secondly, what is the significance of proceedings which “include” a claim for damages for a disease, condition or illness? The fixed success fee regime requires the dispute to relate to a disease that has actually been diagnosed. This amendment only requires the proceedings to “include” a “claim” for a disease, condition or illness. What is to stop a Claimant making a claim for a broken finger (assuming this sloppily drafted amendment has not already exempted such claims from non-recoverability) but including a claim for vibration white finger and therefore arguing the success fee remains recoverable? The amendment contains no requirement the disease element succeeds, that it followed any kind of diagnosis or was even realistically arguable.
Fun and games all round if the House of Commons doesn’t knock this amendment on the head.