Case No: B3/1999/1085 QBENF
Neutral Citation Number: [2001] EWCA Civ 1701
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
(MR RECORDER NOLAN QC)
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 14 November 2001
B e f o r e :

LORD JUSTICE ROBERT WALKER
LORD JUSTICE KEENE
and 
SIR CHRISTOPHER SLADE
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	JONES	Appellant	
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	SOUTH TYNESIDE HEALTH AUTHORITY	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr M Redfern QC (instructed by Alexander Harris for the appellant)
Mr K Coonan QC and Mr J Freedman (instructed by Ward Hadaway for the respondent)

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Judgment
Lord Justice Robert Walker: 
The background to the appeal
1.	This is an appeal which turns entirely on an application to adduce new evidence, although that application has still not been precisely formulated.  The appeal and application are made in sad and unusual circumstances, as appears from the following brief summary.
2.	On 14 September 1975 Mrs Lesley Jones gave birth to her first child, Wayne, in the South Shields General Hospital.  The delivery was difficult, mainly because it was unexpectedly a breech birth.  Immediately after his birth Wayne was unable to breath and suffered brain damage which has caused him permanent mental and physical disability of some severity.  The medical and nursing staff concerned with the birth included two doctors, Dr Naima Panow and Dr Ali (who were respectively an Obstetric Registrar and Senior Obstetric House Officer) and a midwife, Sister Jackson. 
3.	On 31 May 1995 Wayne, acting by Mrs Jones as his litigation friend, commenced proceedings against South Tyneside Health Authority.  There was a direction that the issue of liability (including causation) should be tried first, and the trial of that issue took place before Mr Recorder Nolan QC.  He gave judgment on 6 May 1999 dismissing the claim.  At the end of his judgment he said:
“The mis-diagnoses, omissions and failures which I have found cannot therefore be proved to have had causative effect and with profound sympathy for Wayne and his mother and, I confess, a measure of regret, I have to find for the Defendant upon these preliminary issues.”
4.	No one has criticised the judge’s judgment for his assessment of the evidence which he heard, either from witnesses of fact or from two expert witnesses, Mr Frederick Best FRCOG for the claimant and Professor R W Taylor FRCOG for the health authority.  I would wish to pay tribute to the exemplary clarity and thoroughness of the judge’s judgment.  The appeal and the application turn on the evidence which the judge did not hear from Dr Panow, who delivered Wayne by a forceps delivery.  In his judgment the judge said of her, before going on to the evidence of the medical records:
“Little is known of Miss Panow, save that she was appropriately qualified and apparently competent.  Mr Mackay [the obstetric consultant] can remember her, but it appears that she was not at the hospital for very long.  She has subsequently emigrated, and I fully accept the Defendant’s contention that despite exhaustive efforts to trace her she simply cannot be found.  I do not, therefore, have the benefit of her evidence save insofar as it is contained in a note of the delivery …”
5.	Mrs Jones must have been very disappointed by the outcome of the trial on liability.  For reasons which I shall explain, she thought that the evidence of Dr Panow might have had a decisive effect on the outcome.  Mrs Jones is a lady of intelligence and determination and she set about trying to locate her through the internet.  Through a website devoted to research into family names she located the names, addresses and telephone numbers of five individuals with the surname Panow.  The very first number which she rang was that of Dr Panow, who was living in retirement in the state of Oregon in the United States.  Dr Panow answered the telephone and she and Mrs Jones had a conversation.  This was on 18 May 1999, that is within a fortnight of the judgment dismissing the claim.
6.	With commendable speed Mrs Jones’ legal advisers applied to the judge on 26 May 1999 for permission to appeal and to call new evidence.  That was just after the new Civil Procedure Rules had come into force.  The application was treated as governed by the rules laid down in Ladd v Marshall [1954] 1 WLR 1489 and it was opposed by the health authority.  At that early stage it was still uncertain what Dr Panow’s evidence would amount to: she had had three telephone conversations, one with Mrs Jones, one with Mrs Jones’ solicitor, Mr Tony Pittas, and one with the health authority’s solicitor, Mr N J Martin of Ward Hadaway.  Dr Panow had received (from Mrs Jones) copies of the hospital records and had written a letter in response to questions posed by Mrs Jones, but that letter had not yet arrived.  The judge refused permission to appeal but gave some encouragement to an application to the Court of Appeal.
7.	On 4 October 1999 Brooke LJ gave permission to appeal on a paper application.  He directed a six-month hear-by date, in the expectation that Dr Panow’s evidence would have been obtained and evaluated within that period.  Unfortunately for various reasons which I need not go into, the hearing of the appeal has been repeatedly delayed.  On 20 April 2000 an order was made by Master Ungley for a letter of request to be sent to the authorities in Oregon for the evidence of Dr Panow to be taken in that state with the witness being questioned by means of a video link.  
8.	An order to that effect was made on 29 June 2000 and the examination took place at a meeting centre in Portland, Oregon on 31 July 2000, with counsel and solicitors in London at the other end of the link.  The members of this court have, before the hearing, viewed the videotape and we have transcripts of the evidence and of earlier telephone conversations in which Dr Panow took part, as well as Dr Panow’s letter of 24 May 1999.
9.	I shall have to come back to the quality and substance of Dr Panow’s evidence.  But I should say at once that, through no fault of her own, her evidence by way of the video link is of very little value and it seems unlikely that any further useful evidence could be obtained from her, even if the court were to contemplate that possibility.  Dr  Panow is 65 years of age.  She had to retire in 1986 because she has been very ill, first with breast cancer and then with a stroke.  The stroke occurred during surgery and it has affected her memory.  At the time of her examination by video link she was still receiving treatment for cancer and other conditions.  Not unnaturally, she appears to have found the examination very stressful.
10.	Dr Panow qualified as a doctor in Iraq.  She first came to this country in order to obtain, and she succeeded in obtaining, qualification as a FRCS (specialising in obstetrics).  She was later engaged in high-level teaching at the medical school in Basra.  She was then invited to go and practise in the United States, and her second stay in this country was while she was waiting for a visa enabling her to live and work in the United States.  During this stay she undertook a number of locum appointments in obstetrics at hospitals, including an appointment at South Shields General Hospital.  She was in fact exceptionally experienced and well-qualified for an appointment at registrar level.
The judge’s findings as to the confinement
11.	That is the unusual background to this appeal.  Before particularising the evidence which Dr Panow has provided, in one form or another, I must go back to the events of Mrs Jones’ confinement on 14 September 1975 in order to explain the potential importance of the evidence.  These events are described, with great clarity and considerable detail, in the judge’s judgment, and his account (based partly on the oral evidence which he did hear, and partly on the medical records) is not challenged.  I can therefore give a briefer account.
12.	At the time Mrs Jones was 20 years of age.  She was of fairly short stature, with very small feet (which was thought at the time to be an indicator of pelvic size).  She smoked cigarettes (although she was cutting down on them) and it was her first pregnancy.  For these reasons her general practitioner recommended that she should be delivered in hospital as a ‘consultant booking’.  As her pregnancy progressed she was seen by the consultant, Mr Mackay, as well as by other doctors at the antenatal clinic and by her general practitioner.  At the end of July her general practitioner noted the possibility of a breech birth, and the same observation seems to have been made (but not correctly recorded) by a doctor at the clinic.  But a breech presentation may turn spontaneously up to about 38 weeks, or (as Mrs Jones was reassured at the clinic) it might be turned by a doctor at an appropriate stage.
13.	Three consecutive entries in Mrs Jones’ records made at the clinic in the last few weeks before her confinement (that is, on 28 August, 3 September and 10 September) recorded the presentation as cephalic (that is, by the head).  The judge carefully considered the evidence and concluded that these were the products of misdiagnosis but that (because of the difficulty of sure diagnosis by external examination) only that on 28 August (made by Dr Sarkor following a vaginal examination) was negligent,.  That was his first finding of negligence and it is not challenged.
14.	There was also an issue as to whether there had been a negligent failure to observe, and take precautions on account of, the risk of intra-uterine growth retardation (IUGR).  That risk, like the breech presentation, had a bearing on the appropriate birth management plan, and in particular whether delivery should be by caesarean section.  IUGR (although sometimes referred to by doctors as “small for dates”) does not simply mean that the foetus is relatively small.  It is indicated by the mother’s failure to put on weight during the last few weeks of pregnancy, and it is (as the judge said),
“an indicator of possible placental insufficiency exposing the baby to an increased risk of foetal distress during labour.  It is further conceded that such a risk ought to have been appreciated by reasonable and competent obstetric practitioners in 1975.”
(The judge had clearly in mind, and several times reminded himself, that although trying the case in 1999 he had to apply the medical standards of 1975.)
15.	The judge found that the doctor’s failure to appreciate the risk of IUGR was understandable but not excusable.  That was his second finding of negligence.  He summed up how matters stood when Mrs Jones was admitted to hospital on 14 September 1975:
“ … the real issue between Mr Best and Professor Taylor on this aspect of the case is as to whether a diagnosis of possible IUGR would have made a difference to the birth management plan and in particular to mode of delivery (vaginal or abdominal).  To this issue I shall have to return in some detail.  But the fact remains, and this is profoundly troubling, that when Mrs Jones’ labour began Wayne had two dangerous disadvantages – breech presentation and IUGR, neither of which had been appreciated by any of the clinicians.”
16.	Mrs Jones was admitted shortly after 16.00, her contractions having started about two hours before.  At 16.50 she was examined by the midwife, who suspected that it might be a breech presentation (she wrote in the labour record ‘?Cephalic’).  She should have called a doctor at once (as she candidly accepted in cross-examination) but she did not do so.  The health authority did not seek to defend that omission and it was the third instance of negligence found by the judge.  Its effect was to allow the breech labour to continue undiagnosed for a further three hours.
17.	The midwife saw Mrs Jones again at 18.00 and at 18.05 she injected her with 150 mg Pethidine (an analgesic and sedative) and 50 mg Sparine (an anti-emetic).  In addition the foetal heart was being monitored (with readings recorded at regular intervals) and was not giving cause for concern.  At 20.00 there was a spontaneous rupture of the membranes and it became apparent to the midwife that it was a breech birth.  The midwife at once called Dr Ali, who saw Mrs Jones at 20.15.  She took and recorded particulars about Mrs Jones.  She saw that it was not merely a breech birth, but a footling breech.  She checked that the cord had not prolapsed and then informed the Registrar, Dr Panow.
18.	A footling breech (in which the legs are extended rather than being tucked in front of the foetus) has particular problems.  These were summarised in the 1972 edition of a respected textbook by Professor Sir Jack Dewhurst, which the judge quoted:
“Not only is there a high risk of presentation or prolapse of the cord, but delivery of the infant up to the level of the thorax may occur through an incompletely dilated cervix.  This is especially liable to occur if the obstetrician is foolishly tempted to deliver the baby vaginally prior to full dilation because one or both lower limbs have appeared at the vulva or because of clinical fetal distress or cord prolapse.”
19.	The judge recorded that it was common ground that a caesarean section, if indicated, could have been safely carried out even at 20.15.  He accepted Mrs Jones’ evidence that if she had at any stage been advised to undergo a caesarean she would have followed the advice and consented to the operation.
20.	The judge could not make any definite findings as to when Dr Panow first saw Mrs Jones.  He said that the note which she wrote and signed
“ … appears to indicate that she arrived in the labour ward at 21.00 to find both feet in the vulva, the cervix fully dilated and the baby had a strong and regular heartbeat.  She performed a breech delivery, employing what is referred to as a “Lovsett’s manoeuvre” and applying forceps to the after-coming head.  The note goes on to indicate that the baby was pink in colour and that a heartbeat was present at birth whereupon the baby was handed to the paediatrician immediately.  The Paediatric Registrar and House Surgeon are recorded as being present at birth.  The time of birth is recorded on other documentation at 21.12 which tends to confirm the accuracy of the time of Miss Panow’s arrival in the delivery room at 21.00.
If this was the time of Miss Panow’s arrival in the delivery room, then it was a full 45 minutes after she was informed of the footling breech presentation and probably of the other potential complications by Dr Ali.  There has been no satisfactory explanation as to what delayed her.  The record of other births on the same day does not suggest that she was involved in any other obstetric emergency.”
21.	Mr Kieran Coonan QC (appearing with Mr Jeremy Freedman for the health authority) suggested that Wayne’s birth was not an obstetric emergency, but that there was a paediatric emergency immediately after his birth.  As I read the judgment, there was an obstetric emergency followed by a more serious paediatric emergency:
“ … soon after birth his heartbeat was extremely depressed and irregular, he had an Apgar score of only 2 at one minute of life, he required intubation at 4 minutes and intermittent ventilation thereafter.  It is said that no heartbeat was discernible from 5 minutes onwards.  It was a further 40 minutes before a heartbeat was heard again and Wayne did not breathe spontaneously until 55 minutes of life.  The picture is, at least, suspicious of birth injury.”
What would Dr Panow have done?
22.	Dr Panow saw Mrs Jones at 21.00 at the latest (she suggested that it was, or might have been, earlier than that).  She decided to proceed at once with a forceps delivery.  The issue for the judge was whether, if Dr Ali had been called to see Mrs Jones about three hours earlier, and Dr Panow had been called soon after that, Dr Panow would have, or (as a matter of professional competence) should have, decided that Caesarean section was indicated.
23.	That that was the correct way of formulating the issue appears from the decision of the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232, which refined the Bolam test (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) and explained its application to questions of causation where there was a breach of duty by an omission to act.  Lord Browne-Wilkinson (with whom the rest of the House of Lords agreed) adopted (at p.240) the analysis by Hobhouse LJ in Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med LR 1, 20:
“Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person’s duty towards the plaintiff required that she take that action.  The former alternative calls for no explanation since it is simply the factual proof of the causative effect of the original fault.  The latter is slightly more sophisticated: it involves the factual situation that the original fault did not itself cause the injury but that this was because there would have been some further fault on the part of the defendants; the plaintiff proves his case by proving that his injuries would have been avoided if proper care had continued to be taken.  In the Bolitho case the plaintiff had to prove that the continuing exercise of proper care would have resulted in his being intubated.”
24.	There were therefore two questions, on the facts of the present case: (1) what would Dr Panow have done, if she had attended Wayne soon after 17.00?  (2) If she would not have carried out a caesarean section, would that have been negligent?  As Lord Browne-Wilkinson said in Bolitho (at p.240) the Bolam test has no relevance to the first question but is central to the second.
25.	The Bolam test, as refined in Bolitho, is that a medical practitioner is not negligent if he or she makes a diagnosis or follows a course of treatment which accords with a body of responsible (or reasonable or respectable) medical opinion, so long as that body of opinion has a rationally defensible basis (see Bolitho at pp.241-2 and again at p.243).  The judge considered the Bolam question very carefully, conscious that the 1970’s had seen a marked change in the medical profession’s attitude to caesarean section.  He quoted from a number of textbooks in editions published between 1969 and 1981.  He also quoted from an article by Professor J K Russell in the British Medical Journal (vol 285) published in 1982:
“Ten years ago Moir thought that caesarean section was justified in 10% of breech births in Britain.  In practice nowadays probably some 40% of breech presentations are delivered by caesarean section and in some centres the proportion is much higher ….  Among the reasons for this trend are the increasing safety of the operation, the highly skilled care available in neonatal intensive care units leading to better immediate and long term prospects for the smallest breech babies, and the understandable disinclination of today’s obstetricians to undertake difficult manipulative procedures where there is always the risk of a claim for heavy damages should anything go wrong.”
26.	The judge concluded the Bolam question in favour of the health authority.  He expressed his main conclusions as follows:
“The forensic debate between Professor Taylor and Mr Best upon the measure of risk, its appreciation in 1975 and the appropriate ‘risk benefit analysis’ to adopt an expression used by Mr Coonan, was stimulating and conducted with moderation and appropriate academic respect by both experts.  I probably do neither of their opinions true justice in this necessarily truncated review of it.  But in the end I have to say that I found Professor Taylor’s exposition to be cogent, compelling and the better buttressed by medical texts.  
On the basis of that exposition, says Professor Taylor, a competent and careful obstetric clinician practising in 1975 would have allowed a trial of breech labour even with a moderate degree of IUGR as was or ought to have been suspected in this case.  An important qualification was the word “trial”. ”
The judge then discussed the implications of that important qualification, but found that they did not affect his overall view.  There is no appeal from the judge’s findings as to what Dr Panow should have done (in the sense of what was required by her professional duty).
27.	In relation to what Dr Panow would have done if called earlier, the judge found himself unable to make any finding.  He accepted the submission (of leading counsel then acting for the claimant) that he should not infer that Dr Panow would not have carried out a caesarean section if called earlier, simply because she carried out a vaginal delivery at 21.00.  But the judge said that he must not make any assumptions not warranted by the evidence.  After quoting from Lord Brandon’s speech in Rhesa Shipping v Edmunds [1985] 1 WLR 948, 955, the judge said:
“Lord Brandon’s observation seems to me to apply with particular force where, as in this case, the scope of the factual enquiry is in virtuality limited to a detailed scrutiny of the medical records.  Both sides are disadvantaged by the absence of witnesses or their recollections and experience tells me that the disadvantage is often greatest to the potential cross-examiner.  In cases of some antiquity such as this, it is I think of particular importance that there be rigid adherence to the principles of proof.”
The evidence of Dr Panow
28.	Mrs Jones’ remarkable success in tracing Dr Panow to the other side of the world must have raised Mrs Jones’ hopes of supplementing the evidence of what happened during her confinement, and of getting the judge’s decision reversed on appeal.  Mr Michael Redfern QC, who appeared for the claimant in this court, submitted that the new evidence was indeed sufficient to enable this court to enter judgment (on the issue of liability) for the claimant.  Mr Redfern and his instructing solicitors have until shortly before the appeal hearing been acting for the claimant on a pro bono basis, and this court is very grateful to them.  Mr Coonan, for the health authority, submitted that Dr Panow’s evidence (and especially her answers to two crucial questions, set out below) were not sufficiently specific, unambiguous and credible to be relied on by the court.  He has also pointed out that (because of the deterioration in Dr Panow’s health as demonstrated by the videotape) her evidence has not been, and cannot be, properly tested.
29.	I must therefore set out in more detail the course and content of the communications between Dr Panow and the parties during the period beginning on 18 May 1999 (when Mrs Jones first made contact) and 31 July 2000 (the date of the evidence by video link, which was effectively the last contact).  It is important to bear in mind that Dr Panow’s access to documentary material, her state of health and her attitude to questioning varied during this period (as did the questions being put to her).  There are five relevant documents:
a)	Mrs Jones’ transcript of her tape-recording of part of a telephone conversation on 18 May 1999;
b)	Dr Panow’s letter dated 24 May 1999 to Mrs Jones, in reply to Mrs Jones’ letter of 18 May (which enclosed copies of medical records, but not the judgment, and posed twelve questions);
c)	Mr Martin’s transcript of his tape-recording of a telephone conversation on 25 May 1999 at 18.30 GMT (Dr Panow had just got up in Oregon, having worked until the early hours writing her letter to Mrs Jones, which she had not yet posted);
d)	Mr Pittas’ written summary of his tape-recorded telephone conversation on 26 May 1999 at 02.00 GMT (that is in the early hours of the day of the application to the judge for permission to appeal and adduce further evidence); and 
e)	the partial record of the taking of the deposition on 31 July 2001, which consists of the videotape and a transcript of what was said (the early part of the questioning was not recorded in any way because of a technical fault).
There is no precisely formulated application to this court for the above material to be admitted in evidence on the appeal.  But Mr Redfern has, without objection from Mr Coonan, proceeded as if such an application were before the court, and we have heard the appeal on that basis.  I will consider the material in chronological order.
(a)	The telephone conversation with Mrs Jones
30.	Mrs Jones tape-recorded and later transcribed the latter part of quite a lengthy conversation.  Dr Panow was speaking without any time for reflection and without any medical notes to assist her memory.  She seems to have thought that South Shields was near Birmingham.  She did not remember whether or not she had delivered Wayne.  When asked whether she would have carried out a caesarean section she said that she could not say.  But she made clear that she was a very experienced obstetrician and had carried out caesareans throughout her career:
“Oh yes, I used to do c-sections because I did hysterectomies.  I did c-sections like crazy when I was working in Iraq and London and here.  You know I am a Fellow of the Royal College of Surgeons.”
31.	Dr Panow repeated that she was unable to say what she would have done, although she referred to current practice in the United States.  She agreed to consider the medical notes, if Mrs Jones sent them, and to write to her.  
(b)	Dr Panow’s letter
32.	On 18 May 1999 Mrs Jones sent Dr Panow copies of all the hospital records (including a page of manuscript notes written and signed by Dr Panow) with a covering letter and a further three-page memorandum.  The memorandum set out Mrs Jones’ recollection of what had happened and it ended with twelve questions.  Mrs Jones did not send copies of the judgment or the experts’ reports, but she offered to do so.  Mr Coonan has drawn attention to what he submitted were inaccuracies in the memorandum (for instance ‘significant’ IUGR rather than ‘moderate’ and ‘very small baby’ instead of ‘small baby’) but I do not see much force in these criticisms.  Mrs Jones was trying to put the problem before Dr Panow accurately and objectively, and I think that she was largely successful, despite the time constraints which she was working under.
33.	There was some debate as to when Mrs Jones’s letter and its enclosures reached Dr Panow.  According to Dr Panow’s letter they arrived on 24 May and she studied them immediately and she began her reply on the same day (although it was long after midnight before she finished).  At the beginning of her letter she said that she could not remember the case, and she repeated that at the end of her letter, saying that she could not remember her work at South Shields.  So as often happens with medical witnesses, she had had to rely on the medical notes and such inferences and processes of reconstruction as she could derive from them.  
34.	After her initial statement that she could not remember the case Dr Panow addressed the questions posed in Mrs Jones’s memorandum.  In her first answer she confirmed that she had written and signed the page of notes.  I will set out the questions and answers numbered 2 to 6 in full; counsel agree that it is the answers to questions 2 and 3 which are the most important:
“Q2	If you had been called by the midwife at 5.00pm, would you, having had the opportunity to consider all of the facts allow labour to continue or would you have decided to do a CS?
A2	The diagnosis of breech was not established until the membranes were ruptured.  Doctors were not called for normal delivery.  No doctor was called at 5.00pm.
Q3	If you had been in attendance at 8.00pm or 8.15pm when it was confirmed in the records to be a footling breech would you have elected to do a CS or would you have allowed labour to continue?
A3	If the FH [foetal heart] is normal and the baby is small, the mother had adequate pelvis, then vaginal delivery would be carried out.  If there was a diagnosis of breech with placental insufficiency, then CS would be done.
Q4	There has been considerable criticism made of you by the court for not attending more promptly when it has been assumed that you were summoned by Dr Ali at 8.15pm, because that is the time of her examination.  It is said that you should have arrived within 15 minutes yet it took 45 minutes for your arrival according to the notes.  Could you possibly comment on this?
A4	I do not remember this case at all.  If I was given the report that the progress was good and the FH was 130/minute and regular without meconium then there is no reason to do the CS.  If they did inform me at 8.15pm as recorded by Dr Ali, just to let me know, then there was no need for me to be there waiting for the delivery at 6cm.  I could not read the nurses notes or Dr Ali’s notes stating, when I was called in for the delivery, unless I walked in at the right time or I was there waiting.  My note at time 2100 does not say when I was there before the delivery.  If I was there at the time of the delivery, then I must have been there before the birth of the baby.  The nurses report the time when the doctor is in for the delivery and how long before the delivery.  The time of the birth is 2100 and not the time of the doctor’s arrival to the room.
Q5	There was no recording of any information between 8.15 pm and 9.00 pm when you arrived according to the notes.  Would you know why?
A5	I cannot remember this case and the nurses records are not complete.  9.00 pm is the birth of the baby and not my arrival.  I could not find the nurses notes stating I arrived at 9.00 pm as you note in your question.
Q6	The heart recording chart at page 5 shows Wayne’s heartbeat to be 160 beats from 18.35 pm through to 19.50 pm when it was recorded at 170 beats and again 170 beats at 2000 hours.  Would this information if you were aware of it have influenced your decision in any way if you had attended at 8.00 pm?
A6	FH rate chart was good.  If the FH was very low after contraction and not able to recover to over 120-140 then CS was needed.  In the case of your son the FH was high rather than low.”
35.	Questions 2 and 3 were hypothetical questions of the sort which counsel often ask, and witnesses often find difficult.  To question 2 (which was directed to what Dr Panow would have done if called at 17.00) she replied that no doctor was called at 17.00.  But she did answer the next hypothetical question, and Mr Redfern asked the court to treat her answer as a composite reply to both questions.
36.	Dr Panow’s answer to question 3 is the high point of the appellant’s case.  Mr Redfern submitted that it must be determinative of the appeal.  He emphasised Dr Panow’s exceptional experience and surgical ability, which would have made her more readily disposed to operate.  Mr Coonan submitted that although Dr Panow had access to the clinical notes, she had little time for reflection and did not have the opportunity of considering the clinical context in the same detail as if she had had the judgment, the experts’ reports, and the contemporaneous medical literature referred to in the judgment and the reports.  
37.	Mr Coonan also pointed out that there was never a diagnosis of placental insufficiency, merely a finding of failure to appreciate a risk of IUGR which was an indicator of possible placental insufficiency.  He submitted, in relation to the answers to questions 4 and 5, that if Dr Panow did see Mrs Jones earlier than 21.00, the fact that she did not then carry out a caesarean is itself significant.
(c)	The telephone conversation with Mr Martin
38.	This conversation took place, as already mentioned, when Dr Panow was about to post her letter to Mrs Jones.  It was taped with Dr Panow’s consent.  She again made clear that she had no true recollection of the case.  She told Mr Martin of Mrs Jones’ letter and especially of questions 2 and 3.  She paraphrased her answer to question 3 as follows:
“I said I thought that according to Dr Ali I noticed that the fetal heart was normal 140 and that the dilatation was 6cm  and the baby is small and there is no meconium there is no indication to do C section because specially when the baby is small.  [and after a short interjection by Mr Martin] So I wrote that so C section is not indicated.”
Mr Coonan relied on that.  Mr Redfern pointed out that Dr Panow had nevertheless posted her letter without any amendment.  
(d)	The telephone conversation with Mr Pittas
39.	This conversation was taped (again, with Dr Panow’s consent) but it is recorded in indirect speech in a witness statement made by Mr Pittas.  Dr Panow was, understandably, reluctant to go over the ground yet again.  She said that she had written a letter to Mrs Jones and that she could not say more.
(e)	The deposition by video link
40.	I must explain how and why the deposition came to be ordered and taken after a considerable delay.  When Brooke LJ granted permission to appeal he had before him a skeleton argument, prepared by leading and junior counsel then acting for the claimant, which acknowledged
“that what Miss Panow will say on at least one of the crucial issues is unclear”
and that it was desirable that she should make a statement
“after she has had a full opportunity to consider the facts and to be encouraged to take herself back to 1975 by reference to the records literature and surrounding circumstances.”
41.	The skeleton argument proposed a joint approach by the lawyers on both sides, and Brooke LJ adopted that in the directions which he gave on paper.  A comprehensive set of 18 questions, some of them subdivided, was prepared, agreed and sent to Dr Panow.  However she had become much less co-operative, largely it seems because of a deterioration in her condition, and the questions were not answered.  On 21 March 2000 leading counsel for the claimant appeared in this court and obtained an adjournment of the appeal until the first available date on or after 1 October 2000.  On 20 April 2000 an application was made for letters of request to be sent to the authorities in Oregon.  The hearing of the appeal was again postponed.
42.	The taking of the deposition, achieved by much painstaking effort, has unfortunately added nothing to the evidence available to the court, beyond Dr Panow’s unsurprising answer that she was trying to tell the truth in her letter of 24 May 1999.  Leading counsel for the claimant got nothing else useful out of her in the course of his questioning.  The witness’s confusion, loss of memory and distress appeared from the videotape to be genuine, and not feigned.  I do not think Mr Coonan can possibly be criticised for not taking the questioning further.
Conclusions
43.	The current status of the principles stated in Ladd v Marshall, since the coming into force of the Civil Procedure Rules, has been considered by this court on several occasions.  I need not collect all the citations.  In brief summary, this court has recognised that “the Ladd v Marshall criteria are principles rather than rules” (Hale LJ in Hertfordshire Investments v Bubb 25 July 2000) but that they still call for careful consideration, as being matters which the court would always have to take into consideration in exercising its discretion under rule 52.11(2) of the Civil Procedure Rules.
44.	In the circumstances of this case I would give permission to the claimant to adduce all the evidence described in the last section of this judgment.  Mrs Jones has by her own efforts obtained evidence which (as Mr Coonan accepts) was not and could not have been available at trial.  It is right in the interests of justice that it should be carefully examined by the court at the hearing of the appeal (which is wholly dependent on the new evidence).  In undertaking that examination this court is by no means prejudging whether the evidence is conclusive.
45.	In my judgment the evidence is in fact wholly inconclusive.  Mr Redfern has said all that can possibly be said in favour of the appeal, but the fact is that the evidence of what Dr Panow would have done is for all practical purposes the same as the material which counsel previously acting for the claimant recognised (and was right to recognise) as unclear and not properly based in its clinical context.  For example question 3, the answer to which is of basic importance to the appellant’s case, related to 20.00 or 20.15 on the crucial evening and not to 17.00.  The evidence was also untested by cross-examination, and some of Dr Panow’s answers to Mr Martin showed a degree of readiness to modify her views.
46.	This appeal is a matter of very great importance to Mrs Jones and her son, and I have for that reason set the matter out at some length.  It will be a further grave disappointment to her that her energy and determination in tracing Dr Panow have in the end produced no reliable evidence supporting the appeal.  But that is what has happened.  I feel great sympathy for Mrs Jones and her son, but I would dismiss this appeal.
Lord Justice Keene:
47.	I agree.
Sir Christopher Slade:
48.	I also agree.
Order: Appeal dismissed; counsel to agree a minute of order.
(Order does not form part of the approved judgment)