[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hewes v West Hertfordshire Hospitals NHS Trust & Ors (3) [2018] EWHC 2715 (QB) (18 October 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/2715.html Cite as: [2018] EWHC 2715 (QB), (2019) 166 BMLR 231, [2018] Med LR 615, [2018] WLR(D) 642

[New search] [Printable RTF version] [View ICLR summary: [2018] WLR(D) 642] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/10/2018

MR JUSTICE FOSKETT:

Introduction

1. I will refer to the Claimant as 'C' and the various defendants as 'D1', 'D2' and 'D3' as appropriate for convenience.
2. The factual background for the purposes of the appeal from the decision of Master Cook, given on 5 June 2018 following a hearing on 11 May 2018, can be stated shortly. The Master's decision was to dismiss C's claim against D3 by way of summary judgment. The appeal is brought by permission of Andrew Baker J granted on 26 July 2018.
3. C was born in 1968 and was thus 43 at the time of the material events in March 2012. For about 10 months or so prior to that he had experienced various symptoms of low back pain and in January 2012 an MRI scan revealed a disc protrusion. A caudal epidural injection and a nerve root injection carried out in February 2012 afforded no relief and on 8 March 2012 he noticed that his back and leg pain were worse. He attended the Urgent Care Centre at Hemel Hempstead on 11 March 2012. His recollection is that he was given advice that if he experienced any numbness around the anus and buttocks he should call the Centre as soon as possible.
4. In the early hours of the following morning he did experience symptoms of that nature. His wife spoke to the Urgent Care Centre at 05.43 and dialled 999 at 06.02 and spoke to the ambulance service (D2). It appears that she relayed accurately his developing symptoms. She was told by D2 that a doctor would call back. Whilst she was on the telephone, D3 called C. D3 was a GP providing an out of hours service for C's GP practice.
5. For the purposes of the issues that arise in this appeal, I need to record little more than that D2's ambulance service got C to the A & E department of Watford General Hospital ('WGH'), for which D1 was responsible, at about 08.19. At about 19.35 that day he was "blue-lighted" to Queen's Square in London where he underwent emergency decompression surgery between 23.00 and 01.00 the following morning. No complaints are made about that surgery, but he is left with serious bowel and bladder dysfunction with associated problems.
6. It is common ground that C was the victim of Cauda Equina Syndrome ('CES'). This is a serious clinical condition which involves compression of the cauda equina (the 'horse's tail' of nerve roots at the base of the spinal cord), usually as a result of a central disc prolapse. These nerve roots are responsible for bladder, bowel and sexual function and sensation in the saddle area.
7. It is a well-recognised medical emergency and, in broad terms, the received wisdom is that the earlier that decompression surgery can be undertaken, the better the outcome.
8. C's case is that each defendant contributed to an unreasonable delay in getting him to the operating table and that, had he been operated on earlier (so that surgery was completed by about 15.00), he would have avoided a complete CES and the permanent consequences to which I have referred. Although D2 has made some partial admission concerning delay, all defendants deny responsibility for the injury.
9. The trial is currently set for 6 days in a 5-day window commencing on 18 March 2019.

The case against D3

10. The telephone conversation between D3 and C was recorded and so there is no dispute about what was said. D3's note is consistent with that conversation. His note contained the following:

"?? cauda equina. advised to attend Watford A & E for urgent review"

11. The transcript of the telephone conversation does not show that D3 mentioned CES specifically to C, but he did say that "some nerves … can be pinched which is more serious than just a nerve being pinched from a slipped disc and one of the symptoms you can get from more important nerves being pinched is … difficulty with your bowels, your waterworks, or numbness around the back passage or under your genitals." He concluded by saying that "[if] that is what you are getting then Watford A & E would be the place to go." He had previously explained that the A & E department is "where they can organise an urgent scan and get you seen by an orthopaedic doctor."
12. As I have indicated, C and his wife effectively made arrangements for C to be taken to WGH where matters took the course summarised in paragraph 5 above.
13. D3, on the evidence to which I have referred, plainly thought there was a possibility of CES and had in mind (and indeed mentioned to C) the possible need for an urgent scan. The criticism sought to be made of him is encapsulated in the following averment in the Particulars of Claim:

"… [D3] should not only have advised [C] to attend WGH as soon as possible, but, following the end of his call with [C] at 0612, he should have contacted the WGH to ensure that an assessment by the orthopaedic team was expedited for [C] on his arrival at WGH, effectively bypassing A & E."

14. This was the pleaded form of that which had been advanced in the detailed Letter of Claim sent by C's solicitors to the MPS (and those representing the other defendants) dated 11 March 2016. In relation to D3, it was said that "[our] GP expert has advised us that he considers that [D3's] management was unacceptable and a breach of duty" in various ways, including the following:

"1. … shortly following his call with [C] … he should have telephoned the specialist orthopaedic team on-call SHO to advise him/her of his working diagnosis of CES and to arrange for assessment by the orthopaedic team upon [C's] arrival in A & E at WGH.

2. Had [D3] contacted the orthopaedic team direct, it would have avoided the delays caused by [C] having to be triaged and assessed by the A & E team with consequential onward referral to the orthopaedic team …."

15. Returning to the pleadings, the Defence of D3 asserted, in short in relation to the foregoing pleading, that his actions were "in accordance with a responsible body of medical practitioners" and that it was not necessary for him to ensure an expedited orthopaedic assessment, thus bypassing A & E.
16. There was a fairly detailed Reply to the Defence in which, again in summary, it was asserted that CES is a medical emergency and time is of the essence, that merely advising C to attend A & E would cause inevitable delay and that advising him to do so "was illogical and irrational as it would cause inevitable and unnecessary delay before [he] was seen by the orthopaedic team."
17. This latter averment is setting up for consideration at trial the well-known line of argument in the context of clinical negligence cases based upon Bolitho v City of Hackney Health Authority [1998] AC 332, 241H-242A, per Lord Browne-Wilkinson, to which the Master indeed referred in his judgment.
18. I will return to this issue after referring to the procedural position.

The procedural position

19. On 30 January 2018 the Master held a Costs and Case Management Conference ('CCMC'), at which all parties were represented, and gave directions for a trial on the preliminary issues of breach of duty and factual causation. He gave the usual directions concerning disclosure and directed the exchange of statements of witnesses of fact by 27 April 2018. In relation to these issues between C and D3, he directed the "exchange" of reports from GP experts by 3 July 2018. The experts were identified as Dr Nick Swale for C and Dr D. Russell (Dr David Russell) for D3.
20. In the usual way, if the experts' reports were not agreed, there was a direction for a "without prejudice" discussion between experts of a like discipline by 23 October 2018 and the production of a joint statement by 30 October 2018.
21. The trial window was set between 30 January and 28 June 2019 and, as I have indicated, it has been fixed for March 2019.
22. It does follow that no exchange of expert reports was contemplated until after the exchange of the factual witness evidence and the "deadline" to which any party was entitled to work for the production of a final expert report was 3 July 2018.

The summary judgment application made on behalf of D3

23. D3's application was issued on 27 February 2018 supported by a witness statement by his solicitor, Ms Louise Morgan. In paragraph 5 of her statement, she said this:

"To succeed in his claim against [D3] [C] will … have to prove firstly that it was a breach of duty not to call the on-call orthopaedic team and secondly that as a matter of fact had the on-call team been contacted [C] would have bypassed the hospitals A & E Department …."

24. She drew attention to the Defence of D1 and D2 which was to the effect that C could not, as a matter of fact, have bypassed the A & E Department and contended that C, therefore, had no reasonable grounds for bringing the claim against D3. She invited the court to strike out the whole claim against D3 "on the grounds that the claim discloses no reasonable grounds for bringing the claim."
25. She also contended that there was no evidence that direct referral to the orthopaedic department by D3 would have led to surgery taking place before 15.00 and therefore the claim against D3 could not succeed on causation.
26. Finally, she contended that it was reasonable for D3 to advise C to attend the A & E Department at WGH. She said this:

"Although it would be usual for expert evidence to be exchanged before an application for summary judgment is made on the grounds that the allegation of breach of duty has no real prospect of success, I submit that the facts in this case are sufficiently clear that a disproportionate and will save costs to make this up in the proceedings, before witness statements and experts reports have been exchanged."

27. She continued thus:

"The court can take judicial knowledge of the fact that the Accident and Emergency Department is the location by which emergences are admitted to hospital in the UK, hence its name. It is averred that expert evidence is not necessary to find that advising [C] to attend the Accident and Emergency Department was one of the reasonable options available to an out of hours general practitioner conducting a telephone triage.

[C] has no real prospect of proving that no reasonable GP would have advised [him] to attend [the] Accident and Emergency Department and that no reasonable GP would have failed to contact the hospital before his attendance to ensure an expedited assessment by the orthopaedic team."

28. At that stage, it is clear that it was not the intention of D3's advisers to rely upon expert evidence for the purposes of the application.
29. On 20 March 2018, the Master gave a hearing date for the application of 11 May 2018 and formal service of the application on C's solicitors was effected on 28 March 2018, just before the Easter Vacation, although it is right to say that a draft of the application and Ms Morgan's witness statement were provided to C's solicitors on 28 February 2018. On 28 March 2018 D3's solicitors indicated that the strike out application would not be pursued, but the summary judgment application would and indicated that expert evidence would be served during the week beginning 9 April. Ms Morgan's second witness statement dated 13 April 2018, exhibiting Dr Russell's report to which I will refer below, was emailed to C's solicitors on 13 April. That was exactly 4 weeks before the hearing before the Master. Dr Russell's report is simply dated "April 2018", but he indicates that he had not had available for consideration the witness statements on liability issues that were exchanged on 27 April 2018.
30. Dr Russell, in his 'Summary of [his] conclusions' said this:

"I am strongly of the opinion that the allegation against [D3] has no foundation, and would go as far as to say that of the many medicolegal reports that I have written, I can think of very few with an allegation as unfounded as this."

31. Whilst that may be his genuine opinion, it is questionable whether it is appropriate to include such an observation in a report. Nonetheless, he goes on to identify four possible courses of action that D3 might have followed at the conclusion of his telephone conversation with C:

"He could have arranged to see the Claimant in an urgent face to face consultation, and taken a more detailed history and examination, and then arrange for the Claimant to be assessed urgently within secondary care by either contacting the accident and emergency department or appropriate secondary care specialist (be that a neurosurgeon, spinal specialist or orthopaedic surgeon).

He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities urgently, and contact that department himself, giving the Claimant's details and advising them that on the basis of his telephone conversation he might be presenting with possible cauda equina syndrome.

He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities urgently, and contact that department himself, giving the Claimant's details and advising them that on the basis of his telephone conversation he might be presenting with possible cauda equina syndrome. He could then have arranged the ambulance transport himself.

He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities with no further action taken."

32. He ventured the opinion that "any of the above actions would be in keeping with some responsible bodies of competent general practitioners."
33. Since C's solicitors were not anticipating that it would be until nearer 3 July 2018 that their own GP expert's report would be required, it is hardly surprising that they were not ready to respond immediately by way of producing the report in support of C's case. They invited Dr Swale to say whether he continued to support C's case and by a short letter dated 24 April 2018, exhibited to a witness statement from Ms Amy Wedgewood, part of C's solicitors' team, dated 3 May 2018, he confirmed that he did notwithstanding the terms of the Defence. It read as follows:

"I am a GP expert instructed by [C] in this case. I have been made aware that an application for summary judgment has been made on behalf of [D3]. I have read the statements of case and I can confirm that, from my perspective as a GP I continue to remain supportive of the case set out in the Particulars of Claim and notwithstanding the Defences."

34. He did not address Dr Russell's report directly. The adequacy of this as a response to Dr Russell's report was a matter upon which the Master placed reliance (see paragraph 38 below). I will return to that in due course.
35. Ms Wedgewood's witness statement, which exhibited the Letter of Claim referred to above (see paragraph 14) and other correspondence, raised objections to the application being made at the time it was, pointing to the fact that C had until 3 July to provide his expert evidence and contending that "it would be inappropriate for the court to grant D3 summary judgment on the basis of the premature disclosure of unchallenged expert evidence."
36. I should, perhaps, complete the evidential picture as it was before the Master in relation to the factual causation issue raised by Ms Morgan (see paragraphs 23 and 24 above) by recording that on the exchange of factual evidence on 27 April 2018 there was filed on behalf of D1 a statement from Mr James Langdon, Consultant Orthopaedic and Spinal Surgeon with D1, which said as follows:

"In the event a GP had called to speak to someone in the Orthopaedic department and I had received this call I would have told the GP to send the Claimant to A & E for assessment. This is because [C] would not have had a clinical assessment as I understand the GP's assessment was only done over the phone. It would have been premature for the Orthopaedic team to admit [C] at this time without the benefit of a physical assessment by a clinician".

The Master's decision

37. The Master reserved judgment and gave a written judgment on 5 June 2018: [2018] EWHC 1345 (QB). It ran to 18 pages and 69 paragraphs. I will be forgiven, I trust, for not setting out his reasoning in full. I believe I can summarise sufficiently by recording that he concluded that C had no reasonable prospect of establishing breach of duty against D3. He said that he would not have granted summary judgment on the issue of factual causation mentioned by Ms Morgan.
38. The basis of his decision can be found in the following passages:

"52. Firstly, Mr McLeish pointed to the fact that [C's] expert evidence has not yet been served. I am asked to infer that this evidence, when served, will support the contention that that no responsible body of general practitioners would have referred Mr Hewes to the Accident and Emergency Department of [WGH]. I readily accept that if there is a real as opposed to fanciful possibility the Claimant's expert evidence would support such a contention then the Claimant has satisfied the evidential burden. It is no part of my function to make a ruling on the relative merits of the respective expert's positions on an application for summary judgment, to do so would be to ignore the established case law warning against the conducting of mini trials. That does not mean that the mere assertion that a supportive expert's report will be served will suffice.

53. While the Claimant has not yet served his final expert's report he has had ample time to obtain his expert's view on the central question in this case. [D3's] Defence served on 18 July 2018^[1] made it very clear that he was asserting his actions were in accordance with a responsible body of medical opinion. In these circumstances I am bound to say that I find Dr Swale's letter of 24th April 2018 far from satisfactory, as it entirely fails to identify and address this central issue in the case. It has the hall mark of being drafted by [C's] solicitor, given its striking similarity to the letter from Mr Thorpe, the Claimant's expert spinal surgeon. If Dr Swale's evidence is to the effect that no responsible GP would have referred Mr Hewes to the Accident and Emergency Department of [WGH] it would have been very easy for him to say so and to give brief reasons for expressing that view. If Dr Swale was unable to address the issue in the time available, the Claimant could have sought an adjournment of the summary judgment application. As I have already observed no such application has been made. This is a striking omission, and in the circumstances, I cannot simply accept that [C's] "supportive" expert evidence when served will raise a realistic Bolitho issue."

39. He summarised this conclusion in this way:

"In the circumstances I have concluded, not without some initial hesitation, that [D3] has satisfied me that [C] has no reasonable prospect of success, [D3] having adduced credible evidence that he acted in accordance with a responsible body of medical opinion and [C] having failed to persuade me that he has a realistic as opposed to fanciful chance of proving that he did not at trial."

40. He had said earlier in the judgment that his initial reaction to D3's application was "sceptical" and he "perceived considerable merit in [the] submission that the summary judgment application was premature, in circumstances where [C's] expert evidence was yet to be served."
41. In short, he felt that the absence of a fuller answer from Dr Swale to Dr Russell's opinion meant that Dr Russell's "logical and credible evidence from an appropriately qualified expert" led to the conclusion that C had failed to discharge the burden on him to show that he had a realistic, rather than a fanciful, prospect of demonstrating that D3 failed to act in accordance with a "responsible body of medical opinion".

The grounds of appeal

42. Mr Joel Donovan QC who, together with Mr McLeish, represented C on the appeal, relied on a number of grounds in support of the contention that the Master was wrong to reach the decision he did:

1. D3 did not have the permission required by CPR 35.4(1) to serve Dr Russell's report unilaterally or to rely upon it for the purpose of a summary judgment application.

2. The Master was wrong in law to find that the report of Dr Russell, untested in a joint experts' meeting or in cross-examination, was decisive evidence of a responsible body of medical opinion.

3. The Master was wrong to attribute no or no significant weight to Dr Swale's letter dated 24 April 2018; to find in effect that C had no independent expert evidence in support of his claim; and, having made such a finding, to deny C the opportunity to adduce further evidence from Dr Swale to ensure the parties were on an equal footing.

4. The Master failed to apply the test for summary judgment correctly under CPR 24.2 (a) in that he failed to have any or any proper regard to the evidence that would reasonably be available at a trial of the claim.

5. The Master was wrong to find that D3's evidence effectively reversed the burden of proof and that C failed to discharge it.

6. The Master erred in principle in conducting what was in effect a 'mini-trial' of liability on the basis of the limited expert evidence before him.

43. Those grounds of appeal were advanced without reference to Mr Donovan's application to rely on fresh evidence, namely, a further witness statement from Ms Wedgewood to which a full report from Dr Swale is attached. If that evidence was admitted, Mr Donovan submitted that there was no question but that the appeal should be allowed. There was an argument as to the admissibility of that report on the appeal, Mr Jeremy Hyam QC, for D3, contending that the well-known Ladd v Marshall principles were not met, but in any event he argued that the report still did not answer adequately the points made by Dr Russell and did not address specifically the issue of whether no reasonably competent GP would have simply referred C to the A & E department and that there was a need to bypass that Department. To that extent, he argued that admitting the report would make no difference to the outcome.

Discussion

44. Whilst I differ from a very experienced Master in the field of clinical negligence cases with considerable reluctance, I am clearly of the view that he was wrong to grant summary judgment in favour of D3. Since that is my view and, in consequence, there will be a trial of the issue concerning the alleged breach of duty by D3, I propose to express my reasons as shortly as I can.
45. I have been told that there has been no reported decision of a successful summary judgment application in a clinical negligence case. As a matter of principle there is no reason why clinical negligence cases are any different from any other case and an obviously weak case on liability or causation is vulnerable to such an application. That said, there will be few cases, in my view, where such an application could ordinarily be contemplated before the relevant experts' reports have been exchanged and, in most cases, until after the experts have discussed the case and produced a joint statement. Experts do from time to time change their views in the light of discussions with their counterparts and, whilst it is not to be encouraged and is ordinarily unsuccessful, there are occasions when a party will make a credible application to substitute another expert at some stage. This means that the task of considering, on a summary judgment application, evidence "which can reasonably be expected to be available at trial and the lack of it" (see Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 550 at [19] and Tesco Stores Ltd v Mastercard Incorporated [2015] EWHC 1145 (Ch) at [9]-[10]) is one that needs to be undertaken with caution. The Master acknowledged in his judgment the need to take into account the likely evidence at trial, but would appear to have been of the view that C's expert evidence at trial, even on the best case analysis, would not be a sufficient response to Dr Russell's view and that, accordingly, C would not be able to establish his case against D3. I do not, with respect, think that that view was justified.
46. In this case it was clear from the date of the Letter of Claim (see paragraph 14 above) that C had a GP expert who supported the view that D3, in the circumstances that confronted him on the telephone, should have made arrangements with WGH for C to be seen by the orthopaedic team on arrival and that he should not have to wait for the standard A & E assessment. That was pleaded in the Particulars of Claim and, when the assertion was put in issue in D3's Defence, the Reply set out the logic of the alleged requirement to act in this way (see paragraph 16 above). Although not referred to in the Master's judgment, during the course of the argument he suggested to Counsel representing D3 that the point that would be made against D3's position is that once CES was suspected, time became of the essence and that, accordingly, any reasonably competent medical practitioner should take steps to minimise delay. That was indeed the logic suggested in the Reply. As it happens, that is the position taken by Dr Swale in the report to which I have referred, but in my view it was an obvious inference that this would be the argument advanced by the GP expert for C given the Letter of Claim and the pleadings to which I have referred. I say nothing about whether the argument will succeed - that is a matter for the trial judge - but it would, in my judgment, be impossible to say that the proposition is unarguable and clearly doomed to fail.
47. In my judgment, that view of the material in the case could and should have been taken without any more detailed input from Dr Swale. The letter he wrote was very short and did not descend into the detail that would be expected in a fully-considered and fully-formulated report. He could have said (if it were the case) that he had read Dr Russell's report, but his view, as reflected in the Letter of Claim and the pleadings, had not changed. Whether the Master would have considered that sufficient is unclear. However, the failure to "give brief reasons for expressing [the] view" that "no responsible GP would have referred Mr Hewes to the Accident and Emergency Department of [WGH]" (see paragraph 38 above) did not, in my judgment, justify deciding that C's case was in effect unarguable and unsustainable. Leaving aside all questions of the personal and professional difficulties involved in producing a reasoned response to Dr Russell's report at short notice, I can well understand the reluctance of C's advisers to permit their expert to tie himself to the terms of a rapidly-produced, short response. Any omission or infelicitously expressed observation would doubtless be seized upon in cross-examination at trial, as would any failure to mention some relevant document, piece of research or guidance note. There are costs implications too: the budgets are agreed against the background of what an expert can be expected to do within a particular timescale. Any alteration thus has potential costs consequences. Where an expert continues to be in full-time practice (as, incidentally, appears to be the case with Dr Swale), finding sufficient time to produce a full report must be achieved within the structure of that practice. That is why experts will want deadlines identified and diarised.
48. It follows that, even without evidence concerning the difficulties of producing a suitable response to Dr Russell (see paragraph 44 below), I consider that an expectation that Dr Swale should produce even brief reasons in response was an unreasonable expectation. Whilst, in one sense, the Master was right that C had had "ample time" to obtain his expert's view (see paragraph 38 above) – and indeed he had obtained that view – the important factor was that, as at the hearing before the Master, that view had not been fully articulated and developed in a final report and there was no obligation on C to produce that fully articulated and developed view until 3 July 2018.
49. It is said that no application for an adjournment was made to make good this apparent lacuna in the material. It does not appear that any such application was indeed made. I do not know whether any invitation was extended to Mr McLeish to consider it (Ms Wedgewood says it was not), but I can understand why the invitation might have been declined even if offered – essentially, for the reasons already given. D3's solicitors had asked for an early hearing of their application which resulted in the hearing date given. An adjournment would probably have taken the hearing to a date not far from the deadline for the exchange of reports which might well have resulted in Dr Swale's report becoming available. Whether an adjournment would have been granted in those circumstances is debateable.
50. At all events, for the reasons I have given, I respectfully think that the Master should not have acceded to D3's application.
51. I have reached that conclusion on the basis of finding that an amalgam of parts of Grounds 2, 4 and 6 of the Grounds of Appeal has been established. I would prefer, in those circumstances, not to express any views on the other Grounds of Appeal set out in paragraph 42 above.

Fresh evidence

52. I have reached the foregoing conclusion without specific reference to the "fresh evidence" constituted by Dr Swale's report although I have made passing reference to aspects of it.
53. Had it been necessary for me to reach a final conclusion on this aspect of the matter, I would have said that the fresh evidence is admissible and, had it been of relevance, would have said that it decided the issue so far as summary judgment was concerned. Again, the competing views of the experts, assuming that they do not reach agreement when they have their discussion, will be of crucial importance at the trial and the trial judge will form his or her view of their evidence. But I do not think it could be said, even though Mr Hyam sought to criticise the report, that it does not present a credible view from a suitably qualified expert. Had it been before the Master, I am sure that he would have dismissed the application for summary judgment. Had D3's advisers seen it, I doubt that they would have proceeded with the summary judgment application.
54. For the avoidance of doubt, whilst I do not, of course, seek to diminish the importance of the Ladd v Marshall principles in the CPR-era even at an interim stage in proceedings, there is ample support in the authorities for a slightly more liberal approach to the reception of new evidence if the court considers it just to do so in such a context: see, e.g., Aylwen v Garrett [2001] EWCA Civ 1171, [48-49]; Terluk v Berezovsky [2011] EWCA Civ 1534, [31-32], and Lemos v Lemos [2016] EWCA Civ 1181, [19]. However, I am not sure that any greater liberality would be required than normal in admitting the evidence in this case. The first condition for the reception of "fresh evidence" is that it could not have been obtained "with reasonable diligence" at the time of the first hearing. Ms Wedgewood says there were the following reasons why C's legal team "chose not to serve more detailed evidence from Dr Swale" before the hearing before the Master:

"(a) There is no requirement in the CPR or elsewhere for C to do so in response to an application for summary judgment and, accordingly, C did not consider it was mandated to give premature disclosure of its expert evidence;

(b) C had not been ordered or directed by the court to serve such evidence in advance of the date for expert exchange on 3 July 2018;

(c) C did not consider it was appropriate to serve expert evidence that had not properly taken into account the factual witness statements. Witness statements were exchanged on 27 April 2018. There was insufficient time to take these into account before C had to lodge his response to D3's application by 4 May 2018. For obvious reasons it was particularly important for Dr Swale to have considered the statement of D3. Dr Swale was particularly busy during the month of May as his practice had a scheduled CQC inspection so it would have been unreasonable to expect him to review the witness statements and comment in a few working days;

(d) There were issues of law and procedure, factual issues and potential conflicts in the evidence that C considered sufficient to defeat the summary judgment application as set out in my previous witness statement, Counsel's Skeleton Argument below and as now advanced on this appeal;

(e) There are significant potential effects of giving early disclosure of expert evidence which require careful consideration, particularly in a multi-Defendant case. C wished to avoid any potential hostages to fortune and possible prejudice by disclosing the basis of or reasons for Dr Swale's opinion early, particularly in light of the difficulties in submitting evidence which had proper regard to witness evidence, including the witness statement of D3; and

(f) In any event, a further consideration is that, contrary to Master Cook's finding at [52], C was concerned that disclosure of Dr Swale's report or further evidence from him would not necessarily be decisive, that such disclosure would give rise to issues being canvassed before the learned Master in advance of the exchange of expert evidence having taken place which would be inappropriate on a summary judgment application and lead to the risk of an entirely inappropriate 'mini-trial' of the issues in the case."

55. Taking the expression "reasonable diligence" to embrace matters other than merely doing something quickly, that passage in her witness statement does afford a reasonable explanation for not putting forward a detailed report from Dr Swale at that time and, in my judgment, would lead to the conclusion that the first requirement of Ladd v Marshall was met. Asking Dr Swale to produce a full report at that stage was not reasonable and it was reasonable not to ask him to say anything substantive in the short time available. The very short letter put forward might have been phrased better, but the reason for Dr Swale's view on the crucial issue should have been apparent for the reasons already given without reference to that letter.
56. Once the full report is admitted in evidence, then, in my judgment, there would be no grounds upon which D3 should be entitled to summary judgment.
57. However, as I have said, I do not consider it necessary to receive that full report for this appeal to be allowed.

Conclusion

58. The appeal will, therefore, be allowed. There will have to be some revisions to the timetable set out in the directions order, but doubtless C will want to preserve the trial date. If agreement cannot be reached, I will hear submissions about the timetable.

Note 1    That is a typographical error. The date was 18 July 2017.    [Back]