[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bulter v Mount Vernon & Watford General Hospital NHS Trust [2002] EWCA Civ 1368 (25 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1368.html Cite as: [2002] EWCA Civ 1368

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HIS HONOUR JUDGE SIMMONS)

		Royal Courts of Justice Strand London, WC2 Wednesday, 25th September 2002

1. LORD JUSTICE DYSON: This is an application for permission to appeal the decision of His Honour Judge Simmons who, sitting at Luton County Court, dismissed an appeal against the decision of District Judge Rhodes on 23rd July 2002, giving the defendants permission to adduce the evidence of Dr Schady, a neurologist, as an expert witness. The claimant had been employed by the defendant as a secretary and administrative assistant at Watford General Hospital from December 1992 until her employment was finally terminated in December 2001, although I understand that she did not in fact work at the hospital after March 2000. On 25th July 1995 she developed severe sciatic pain in her right buttock, leg and foot, and these problems have persisted ever since.
2. She consulted a number of doctors and eventually in 1998 she instructed solicitors with a view to starting proceedings against the defendants on the basis that she was suffering from Piriformis Muscle Syndrome, PMS, and that this was caused by the awkward posture that she had been obliged to adopt when sitting to do her work over long periods of time during the course of her employment. PMS is the term used to describe a painful condition caused by a sciatic nerve lesion at the pelvic outlet. The defendants' insurers instructed a Dr Kocen to prepare a medical report. He was a consultant physician at the National Hospital for Neurology and Neurosurgery. He examined the claimant in November 1999. In his first report, dated 29th November 1999, he wrote, and I quote from page 95 in the bundle:

"This lady has had symptoms suggestive of sciatic nerve irritation since mid 1995. She has been very extensively investigated and there does not appear to be a lesion within the spinal canal which is causing the symptoms which could be described those of 'sciatica'.

"It has been suggested that the symptoms are those of Piriformis Muscle Syndrome, a condition rarely diagnosed and therefore presumably uncommon. As a matter of fact there was a very recent reference to this condition in the journal Lancet March 22, 1997."

3. He expressed no views in this report about the cause of the claimant's condition. He was asked by the insurers to clarify his views. This he did in a letter dated 10th January 2000, in which he said this, and I quote from page 98:

"I think she suffers from a sciatic nerve lesion. It appears to have developed in mid 1995. She describes an acute onset of symptoms and attributes this to a particular way she sat at work for long periods."

4. And then a bit later:

"Subsequently the diagnosis of the Piriformis Syndrome was made. I agree that this was the probable diagnosis. I think that on balance it is probably true that the symptoms did come on in relation to pressure on the sciatic nerve and its blood supply as she sat in an awkward position at work. I do not think that her symptoms resulting from an organic lesion of the sciatic nerve are likely to alter significantly in the future. I certainly do not anticipate any deterioration in symptoms."

5. The insurers asked for further clarification. This was provided by Doctor Kocen in his letter of 14th February 2000, page 100:

"As you say on balance of probabilities I concluded that Mrs Butler is probably suffering from the Piriformis Syndrome and that this was probably caused by some vascular damage to the relevant nerve as a result of the way that she was apparently sitting for long periods at work."

6. On 22nd March 2000 the defendants' insurers wrote to the claimant saying, page 68:

"Our discussions with both Dr Kocen and our Insured have now been completed and we are pleased to be in a position to confirm that we are prepared to consider your reasonable claim for compensation further.

"Dr Kocen has indicated that on the balance of probabilities he is prepared to accept that you are suffering from Piriformis Syndrome and that this was probably caused by some vascular damage to the relevant nerve as a result of the way you were apparently sitting for long periods of time at work. Dr Kocen goes on to say that it is unlikely your condition should deteriorate by which he means he does not consider you will be in any more pain in the future than you are currently experiencing now."

7. The letter went on to offer a sum of £8,000 by way of compensation. This offer was rejected. The claimant at that stage did not consult a medical expert. It seems that she was content to rely on the opinion of Dr Kocen. Proceedings were issued on 19th December 2000 and particulars of claim served on 12th April 2001. Accompanying the particulars of claim was a schedule of special damages. The claim was quantified as a sum of the order of £150,000. Dr Kocen's reports, dated 29th November 1999, 10th January and 14th February 2000, were served with the particulars of claim as the particulars of the claimant's injuries.
8. The defence was served on 30th May 2001. It pleaded a limitation defence, and without prejudice to that also contained the following, page 156, 5.2:

"Solely for the purposes of this action, it is admitted that the Claimant has sustained some injury to her sciatic nerve. The nature and extent of that injury is set out in the Medical Reports of Dr R S Kocen served with the Particulars of Claim. The Claimant is put to strict proof that the symptoms of which she now complains resulted from the working conditions described in paragraph 3."

9. And at 8.2:

"Solely for the purposes of this action, it is admitted that, from July 1995, the Defendant breached that duty by not taking sufficient steps to modify or alter the Claimant's work station so as to preclude, so far as reasonable, the development or exacerbation of injury to the Claimant's sciatic nerve."

10. Finally, 9.1:

"Solely for the purposes of this action, it is admitted that the Claimant has sustained some injury to her sciatic nerve. The Claimant is put to strict proof as to the nature, extent and causation of all her present complaints."

11. She was seen again by Dr Kocen in September 2001. She had undergone an exploratory operation on 24th March 2000. She told Dr Kocen that her condition had become more painful. In his report of 12th October 2001 Dr Kocen referred to the exploratory operation and said that it revealed "gross pathology affecting the sciatic nerve", but showed no evidence of any obvious pathology which would cause progressive deterioration.
12. The last two paragraphs of his report are in these terms, I read from page 113:

"How it came about that she should have developed this sciatic nerve lesion is difficult to account for. In that the symptoms apparently came on quite suddenly, this suggests a vascular basis. From what I have read, I gather that some individuals with the Piriformis Syndrome may have had a congenital vascular abnormality in the relevant site and damage to the vessel at that site as a result of pressure or stretching might have caused the permanent symptoms on the basis of nerve ischaemia. However, there was apparently no obvious vascular pathology to be seen when the sciatic nerve was exposed and carefully looked at, at the time of the RNOH operation.

"The precise cause of her symptoms therefore, that is what caused the sciatic nerve damage, remains as far as I am concerned uncertain."

13. The claimant's solicitors asked Dr Kocen a number of questions arising from this latest report. The relevant questions and answers appear in Dr Kocen's letter of 4th January 2002, a copy of which was sent to Mrs Mullins, the defendants' solicitor. It is necessary to read some of this letter at page 115:

"My answers to your questions are as follows:

"Q 1. Do you maintain your provisional diagnosis of piriformis syndrome?

"A. I think this is a possible explanation. The condition is very rare, I have not actually to my knowledge seen a case of the piriformis syndrome, but I have read about it.

"Q 3. Do you maintain your view that on the balance of probabilities the symptoms did come on in relation to pressure on the sciatic nerve and/or its blood supply as she sat in an awkward position at work for long periods of time?

"A. Yes.

"Q 5.Do you accept that some individuals with piriformis syndrome may not have a congenital vascular abnormality in the relevant site?

"A. Yes.

"Q 6. Do you accept that there may be other causes of piriformis syndrome over and above nerve ischaemia?

"A. Yes.

"Q 7. Do you accept that the sciatic nerve can be compressed under several different circumstances particularly in the case of patients who have to sit in an awkward position for a prolonged period?

"A. Probably.

"Q 8. Does it remain your view that damage to the sciatic nerve and trauma to the piriformis muscle could have been caused by Mrs Bulter's awkward position at work for long periods of time?

"A. Probably yes.

"Q 10. Is it your view that the awkward position at work was a significant factor in development of the symptoms of sciatic nerve lesion?

"A. Probably yes."

14. Dr Kocen has for some time been suffering from Parkinson's Disease. By a letter dated 22nd February 2002, Dr Kocen's own doctor notified the defendants' solicitors, Beachcroft Wansbroughs, that he was not fit to give evidence. The letter was sent in relation to a different file and a different case than the one that was being handled by Mrs Mullins on behalf of the defendants, and it seems that it was not until some time in May that the letter was passed on to Mrs Mullins, who was dealing with this case.
15. Meanwhile, the proceedings were progressing. On 11th March 2002 District Judge Pearl gave directions. These included that there should be a split trial with the issues of liability, limitation and causation being tried in advance of the issue of quantum. The district judge also directed as follows:

"5. Evidence shall be given by the report of a single expert instructed jointly by the parties in the field of neurology and neurosurgery on the issue of the Claimant's alleged injuries namely Dr Kocen whose reports have been agreed. The evidence be given at the trial by written report unless permission is given prior to the trial for oral evidence. The court will consider on receipt of listing questionnaires whether such permission is to be given.

"8. Any party may put written questions to the expert within 14 days of report which shall be answered within 21 days of service."

16. The defendants did not appeal that order, nor did they challenge the assertion that the reports of Dr Kocen were "agreed". They did not at any time indicate they intended to seek the court's permission to require Dr Kocen to give oral evidence. Nor have they ever sought amplification or further clarification from Dr Kocen of his report. As late as July of this year Dr Kocen confirmed that he was willing to answer any questions or deal with any outstanding points.
17. Instead, some time between 11th March and 15th May, the defendants instructed Dr Schady, a consultant neurologist, to consider the case. He has not seen the claimant, but he reviewed Dr Kocen's reports and wrote his own report, dated 15th May. He agreed with the diagnosis of PMS, but he concluded that it occurred on what he called a "constitutional" basis, and that it would have done so even if the claimant had been seated differently at work.
18. On 22nd May Deputy District Judge Perry gave directions varying the existing directions in relation to psychological evidence. At the hearing Mrs Mullins raised the question of Dr Kocen's unfitness to attend trial to give evidence, and stated for the first time the defendants' wish to instruct Dr Schady. The deputy district judge said that the defendants should issue a formal application. Thus it was that on 6th June the defendants issued an application seeking permission to rely on the expert evidence of Dr Schady and to have the claimant examined by him. That application was opposed and the district judge dismissed it on 23rd July.
19. By that time the court had given the parties the period 1st October to 1st November 2002 as the trial window for the hearing of the preliminary issues. In reaching his decision to dismiss the application the district judge was influenced by the following points. Firstly, the evidence of Dr Kocen had been agreed. Secondly, he was not satisfied that Dr Kocen had changed his view on causation. Thirdly, the application had not been made promptly, and it was difficult to see how, if the application were allowed, the trial could take place during the period that had been allocated. To allow the application would result in more expense and delay and it was not proportionate to allow the fresh evidence at this late stage of the proceedings.
20. The judge, on appeal, whose task it was to review the decision of the district judge and not to take a fresh decision for himself, disagreed with the district judge's view that Dr Kocen had not changed his opinion on causation. The judge was clearly referring to the differences between the contents of Dr Kocen's second report and his letters. But the judge thought that the trial judge would nevertheless be able to decide the issue of causation on the basis of the entirety of Dr Kocen's evidence.
21. He then considered each of the other grounds of appeal. It was said that the district judge had placed too much weight on the fact that Dr Kocen's evidence had been agreed. The judge agreed with the district judge that this was an important consideration. The next point was that the district judge had said that the case of Daniels v Walker [2000] Weekly Law Reports, 1382, was distinguishable. In that case Lord Woolf MR had said at page 1387:

"In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

"In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the situation in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report."

22. Then a little later:

"In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, where possible, a joint report is obtained. If there is disagreement on that report, then there will be an issue as to whether to ask questions or whether to get your own expert's report. If questions do not resolve the matter and a party, or both parties, obtain their own expert's reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive."

23. The final ground before the judge was that the district judge was wrong to consider that it would be disproportionate, in a case where damages of about £150,000 are claimed, to allow the defendant to rely upon further expert evidence in relation to the issue of causation. The submission of Mr Hamer, on behalf of the claimant, was that if the application were allowed, this might have an adverse effect on the claimant's cost funding arrangements. She is represented by solicitors and counsel under a Conditional Fee Agreement. Mr Hamer submitted that if further expert evidence were allowed on the issue of causation, the solicitors would, and I quote, "almost certainly wish to review the situation in order to decide whether to terminate their Conditional Fee Agreement with the Claimant".
24. The judge made no specific findings about this. He merely said at paragraph 24:

"It seems to me, that proportionality must be looked at in conjunction with the concept of fairness to the parties under the provisions of the rules and it cannot be said to be fair to allow this new evidence to be sought at this very late stage."

25. This is a second appeal case. Permission to appeal cannot be given unless the appeal raises an important point of principle, or there is some other compelling reason for the Court of Appeal to hear it. Mr Lord submits both of these requirements are met in the present case. As regards important points of principle or practice, Mr Lord submits that the following arise: firstly, what happens when a single joint expert cannot attend trial so as to undergo oral testing of his evidence to answer questions that the judge may have? Secondly, the continued misapprehension as to the status of a single joint expert with too many Lower Courts seemingly still taking the view that there is an irrefutable presumption that this will not only be the first but the last stage in the expert evidence process. Thirdly, the nature of the extent of the written questioning that is permitted of a single joint expert, and whether cross examination in writing is allowed. Fourthly, how should a party go about procuring a second opinion, and then how should it go about obtaining permission to rely on it? Fifthly, to what extent is it legitimate for a court to allow questions of one party's loss of future funding to determine matters as between that party and the other parties to the case?
26. Leaving the loss of funding point on one side for the moment, I do not accept that any important issue of principle or practice arises here. The bald question what happens when a single joint expert cannot attend trial to undergo oral testing of his evidence and to answer questions that the judge may have, does not admit of a generalised answer. It depends on all the circumstances and what the justice of the case requires. Relevant circumstances will include the nature of the questions that might be asked; whether the expert is available to answer the proposed further questions in writing; whether the report of the joint expert is agreed or not; and the nature of the impact on the trial of allowing additional oral evidence from another expert witness. Moreover, the nature and extent of written questions that may be permitted of a single joint expert will vary from case to case.
27. Our attention has been drawn to the notes at paragraph 35.6.1 of the current edition of volume one of the White Book. These words appear:

"The meaning of clarification is not explained in the rule or practice direction. However, it would seem that questions should not be used to require an expert to carry out new investigations or tests, or to expand significantly on his/her report, or to conduct a formal cross examination by post, including on the expert's credibility, unless the Court gives express permission."

28. That note contemplates that there may be circumstances in which the court will see fit to give permission for wide ranging written questions of the kind which in an ordinary case may not, perhaps, be appropriate. Where the expert evidence is not agreed, and he or she will give oral evidence, the scope for proper written questioning may well be limited, unless they are in a case where the expert evidence is agreed and/or the expert is no longer well enough to attend trial to give oral evidence, but can answer questions in writing.
29. In my view, therefore, this case does not raise any important points of practice or principle. I can see that issues about the effect of decisions on a party's funding arrangements are of some general importance, but it is clear that in the present case the possible effect on the claimant's funding arrangements of ceding to the defendants' application, played little or no part in the outcome of the application, and formed no part of the district judge's reasoning. It is not clear to what extent, if any, it formed any part of the judge's reasoning.
30. Mr Lord submits that there is, in any event, another compelling reason for granting permission to appeal. He submits that the defendants' prospects of success on appeal are high, and that this in itself is a good reason for giving permission to appeal. I proceed on the basis that there may be some cases where the prospects of success are so high that even though no important point of principle or practice is raised, permission to appeal should be given in a second appeal case. But, in my judgment, if permission is to be given on this basis, the prospects of success must be very good indeed.
31. Mr Lord submits that the defendants' prospects of success are high. He argues that the district judge placed too much emphasis on the fact that the defendant had agreed the evidence of Dr Kocen at a time when it had not been appreciated that his evidence was contradictory. I disagree. It seems to me that it is highly material that the evidence was agreed. Not only was his evidence agreed evidence, but this fact was reported in the directions given on 11th March 2002, and there was no appeal against those directions.
32. If the evidence of Dr Kocen had been unambiguously in favour of the claimant on the causation issue, and shortly before the hearing the defendant sought permission to call another expert to give evidence to a contrary effect, it could not seriously be suggested that the fact that until a late stage of the proceedings the evidence of the single joint expert had been agreed was not material to the question whether or not permission should be given for another expert to be called. The point is that the court will not lightly allow parties to disown the agreed evidence of expert witnesses, and particularly where to do so will result in delay and additional expense.
33. It should not be overlooked that the defendants were making an application for permission to call additional evidence. They had to obtain permission from the court, and the court had to exercise a discretion in deciding whether or not to grant permission. It had to deal with the application justly, taking into account the consequences to the claimant of acceding to the application, as well as to the defendant of refusing it.
34. Mr Lord also submits that the district judge and judge were wrong to consider that the case of Daniels v Walker was of little relevance to the present case. He says that by the time Dr Kocen had written his letter of 4th January 2002, his opinion was irredeemably tainted by his changes of tack and his lack of reasoning. He was no longer a reliable expert witness. It was not appropriate to conduct cross examination in writing.
35. In my judgment, the judges below were right to say that Daniels v Walker had no application. In that case, guidance was given as to what should happen where a party does not agree with the contents of the report of the joint expert, not with the situation that arises where a party, having agreed the contents of a report, then changes his mind. In any event, as Lord Woolf said, "you cannot make generalisations".
36. All the circumstances have to be considered and a decision made which fulfils the court's obligation of complying with the overriding objective of dealing with cases justly. In many cases, written questions which are tantamount to cross examination are inappropriate, but in some cases it is open to court to decide that the overriding objective requires such questions.
37. Mr Lord also submits that the judge was wrong to be influenced by the possible delay on the trial of allowing the fresh evidence, and wrong to hold that it would be disproportionate to allow the defendant to adduce that evidence.
38. In my judgment it is manifestly clear that the possibility of delay -- and indeed the judge went so far as to say "the inevitability of delay" -- and additional costs that would result from acceding to the application had to be taken into account as a most material consideration in deciding whether to grant permission to the defendants to adduce fresh evidence. I have no doubt that the prospects of the defendants succeeding on this appeal on these grounds are not sufficiently high to justify the grant of permission to appeal. The district judge was right to take into account the fact that the evidence of Dr Kocen was agreed evidence, and that the application for permission to adduce the evidence of Dr Schady was made too late. These are powerful reasons for refusing the application. As against that, there were the factors relied on by Mr Lord, in particular the fact that the evidence of Dr Kocen was to some extent contradictory, and was not supported by detailed reasoning. If the application had been made promptly, that might have been a reason for deciding it differently, but in my judgment the district judge was entitled to take the view that the application was made too late. The ostensible reason for the defendants' application was that Dr Kocen's report required clarification. I have considerable doubts as to whether this was the real reason, but the fact remains that it is open to the defendants, even now, to write to Dr Kocen and seek clarification of his evidence. For all these reasons I would refuse this application for permission to appeal.
39. LORD JUSTICE RIX: I agree.
ORDER: Application for permission to appeal refused.