England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC3 96/6020/C

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE SEDLEY )

Royal Courts of Justice

Strand

London W2A 2LL

Friday 13th December 1996

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE EVANS

LORD JUSTICE THORPE

VERNON Respondent

v.

BOSLEY Appellant

(Handed down transcript of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR DERMOD O'BRIEN QC and MR DANIEL PEARCE HIGGINS (instructed by Messrs Howard Palser Grossman Hermer & Partners, Cardiff) appeared on behalf of the Appellant (Defendant).

MR DAVID BLUNT QC and MR JONATHAN MARKS QC (instructed by Messrs Osborne Clarke, Bristol) appeared on behalf of the Respondent (Plaintiff).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE STUART-SMITH:

On 29 March 1996 draft judgments were handed down by this court on the defendant's appeal from a judgment of Sedley J. given on 30 January 1995 whereby he awarded the plaintiff £1,332,231.59 by way of damages and interest in respect of nervous shock or psychiatric injury sustained by him when he witnessed on 13 August 1982 unsuccessful attempts rescue his two daughters from a motor car which had been driven into a river in South Wales by the defendant, who was employed by the plaintiff and his wife as a nanny.

The defendant never disputed that she had been negligent or that the plaintiff was a person, who, if he suffered nervous shock or psychiatric illness, usually referred to as Post Traumatic Stress Disorder (PTSD) as a result of witnessing the accident or, in this case its immediate aftermath, was entitled to recover damages. But she disputed that the plaintiff had suffered PTSD, as opposed to a grief reaction albeit an extreme one. It was her case that any subsequent problems of depression and consequent disability were reactions to life's events, unconnected to the accident. The judge in essence upheld the plaintiff's claim that the witnessing of the aftermath of the accident was a substantial cause of the plaintiff's persistent and ongoing mental illness, though he rejected a claim for nearly £3 million for the loss of capital and profits in a company called Parearo Ltd., the failure of which company the plaintiff contended was due to reduced ability to conduct the affairs of the company properly. Sedley J. held that it would have failed in any event.

On appeal to this court the defendant submitted first that the judge was in error in holding that the plaintiff had proved that he had suffered PTSD, as opposed to a grief reaction, for which damages were not recoverable, or that his mental condition was attributable to his having witnessed the accident. On this issue the court was divided. I agreed with the defendant's submission and would have allowed the appeal in whole. Evans and Thorpe LJJ disagreed. The defendant also contested some of the heads of damage awarded by the judge, his award of interest and his decision on costs. By our draft judgment we reduced certain of his heads of damage, so that the total award of damages was reduced to £643,425,56 (though this was subject to an arithmetical error to which I shall refer hereafter), together with interest, calculated on a basis less favourable to the plaintiff than that awarded by the judge; we also altered the order for costs.

For reasons which will in due course appear, it is necessary to set out the various heads of damage claimed and the amount claimed by the plaintiff before Sedley J., the amount of the judge's award, whether or not it was subject to appeal and the amount awarded on appeal. It is not necessary to refer to the interest figures.

* These figures are subject to correction.

+ In respect of these claims the plaintiffs mental condition at the time of judgment by

Sedley J. and the future prognosis were or might well be relevant.

The claim for nearly £3 million in respect of Parearo is no longer relevant, nor are relatively small claims for travelling and sundries, which the judge awarded.

When the draft judgments of this court were handed down issues arose as to the correct calculation of the past and future loss of earnings, which affected the calculation of interest. These matters were therefore adjourned in the hope that the parties could agree; failing which the matter would have to be re-argued on these points. No such agreement had been reached and no final order of this court had been drawn up, when on or about 17 April 1996 Mr O'Brien QC received through the post from an anonymous sender copies of a judgment of HH Judge McNaught given on 6 January 1995 in the Gloucester County Court in certain proceedings under section 8 of the Childrens Act 1989 between Mr and Mrs Vernon relating to their three children, together with a copy of the judgment of the Court of Appeal (Russell LJ and Wall J.) delivered on 4 July 1995, dismissing the plaintiff's appeal from the judgment of HH Judge McNaught.

These judgments reveal that the evidence before the Family Court was that Mr Vernon's psychiatric health had dramatically improved since September 1993 and that he was substantially, if not fully recovered. This appeared to be the effect of the evidence of his medical specialists, Dr Lloyd, a consultant psychiatrist, and Mr Mackay, a clinical psychologist, both of whom had given evidence before Sedley J. It appeared to the defendant's legal advisors that this evidence was materially different to the picture presented to Sedley J. and this court, and in particular it might affect the judge's findings as to the plaintiff's state of health at the time of the judgment and to the prognosis for the future. This would affect the level of general damages and also elements of future loss.

Accordingly on 30 April 1996 the defendant applied to this court that the appeal be listed for rehearing, for discovery and inspection of the relevant reports and evidence and, by amendment leave, either of this court or Judge McNaught, pursuant to rule 4.23 of the Family Proceedings Rules 1991 to inspect and take copies of the relevant documents and evidence. Initially the plaintiff resisted disclosure of the evidence. However by letter dated 19 September 1996 his solicitors indicated that they waived any objection to discovery or privilege and applied to Judge McNaught for leave under rule 4.23 which was readily granted.

In the result the court has had placed before it evidence adduced in the Family Proceedings consisting of reports of Dr Lloyd and Mr Mackay and notes of their oral evidence, affidavits, notes of evidence and transcript of evidence of Mr Vernon and notes of evidence given by Mrs Vernon and transcripts of evidence of two other witnesses given on a review hearing on 12 December 1995.

It is desirable at this stage to set out the relevant history of the family proceedings and the personal injury action. The writ in the latter was issued on 8 August 1985. In September 1992 Mrs Vernon left the matrimonial home. She immediately applied for a residence order, which was granted on an interim basis. In February 1993 she sought judicial separation, subsequently amended to a petition for divorce. In March 1993 Mrs Vernon was granted a residence order in relation to the children, reasonable contact to the plaintiff; she also applied to oust the plaintiff from the matrimonial home. In April and May Mr Mackay and Dr Lloyd furnished reports in the Family proceedings to the effect that if the plaintiff was ousted from the matrimonial home, he might commit suicide; these reports were disclosed by the plaintiff in the personal injury litigation and used in support of his case. In July Mrs Vernon withdrew her ouster application. In October she was granted a divorce. In the personal injury action Dr Lloyd provided a report dated 14 May 1993, and Mr Mackay one dated 18 November 1993. The trial started before Sedley J. on 12 January 1994. Mr Vernon gave evidence over many days during the early part of the trial. Mr Mackay and Dr Lloyd gave evidence after the Easter break between 18 and 22 April. The evidence as a whole was concluded on 14 July.

On 8 August Mr Vernon applied for a residence order in respect of his children. In support of his application reports were obtained from Mr Mackay and Dr Lloyd. In their letters of instructions to these two experts dated 28 September 1993, Messrs. Thring and Long (the plaintiff's matrimonial solicitors) said:

"we need to show that his mental health has improved dramatically since the date of your report in May 1993 and moreover that it has improved again since the conclusion of his big personal injury case."

There are two reports from Mr Mackay; the first is dated variously 14 or 17 October, the second dated 31 October or 1 November. Both purport to be progress reports on the plaintiff from May 1993 to October 1994. They are in broadly the same form, but there are substantial differences. I am not satisfied that these differences are entirely due to the spontaneous second thoughts of Mr Mackay as appeared to be his recollection when he gave evidence before us.

On 24 and 25 October closing oral submissions were made to Sedley J. Whether or not the plaintiff had seen Mr Mackay's report of 14/17 October by then is not clear. He did know that he had made a dramatic and sustained recovery, albeit he was still on medication. He was present throughout the oral submissions to Sedley J. What is clear is that the plaintiff's legal advisers in the personal injury litigation did not know at that stage of the contents of Mr Mackay's report; nor did they know of the extent of the plaintiff's recovery. The hearing before Judge McNaught began on 9 November and concluded on 28 December (it was not continuous) when the judge dismissed the plaintiff's claim for residence. The plaintiff, Mr Mackay and Dr Lloyd gave evidence, Judge McNaught gave judgment on 6 January 1995. He accepted that the plaintiff had made a substantial recovery, there was no reason from the point of view of his mental health why he could not look after the children. Sedley J. gave his judgment on 31 January, though he dealt with further matters on 10 May.

There is one further matter in the proceedings before Judge McNaught which emerges from documentation put before this court in the last day or so. It is clear that Mrs Vernon was greatly concerned that if the latest information as revealed in the evidence of Mr Mackay, Dr Lloyd and the plaintiff was not communicated to Sedley J., he would be misled and his judgment given on a false basis, although this was against her own financial interest since she stood to gain from a large award. She feared that if the truth was not revealed she might be regarded as being party to a fraud on the insurers. She appears to have recognised that she could not reveal what was being said in the Childrens Act proceedings. But nevertheless the plaintiff was so concerned that she might do so, that he applied, on the advice of Mr Blunt and Mr Marks for an ex parte injunction to restrain her from doing so. This was granted on 18 November 1994, but discharged when the judge gave judgment.

Furthermore it is clear that Judge McNaught himself was very concerned that the picture presented to him was so significantly different from that which had been presented to Sedley J. This must have been apparent to the plaintiff, because on 17 November 1994, Osbourne Clarke (the plaintiff's personal injury solicitors) wrote to Judge McNaught. They told the judge that leading counsel had advised that the plaintiff was not obliged to disclose the altered position. They indicated that it had not yet been decided whether the plaintiff would make voluntary disclosure. The judge was told that it was not appropriate for him to communicate with Sedley J., and if he did, the tort proceedings might be aborted. He was asked to confirm in writing that he would not do so. In the result no communication was made to Sedley J. or the defendant's advisers.

The Court of Appeal dismissed the appeal from Judge McNaught on 4 July. There was a review hearing on dates between 27 November and 28 December 1995 at which a further report from Dr Lloyd was adduced in evidence. In January 1996 Judge McNaught made no variation in the residence order. Subsequently however Mrs Vernon agreed that the youngest child, who is 10 years old should reside with Mr Vernon, which he has done since then.

Mr Vernon was represented by different solicitors and counsel in the two sets of proceedings. But it is clear that counsel in these proceedings were aware of the change in opinion of Dr Lloyd and Mr Mackay well before Sedley J. gave judgment. They advised that neither he, nor this court should be told of that change.

On 22 and 23 October we considered Mr O'Brien's application to be permitted to adduce further evidence in the form of the reports of Dr Lloyd and Mr Mackay and their evidence in the Family proceedings, together with the evidence of other witnesses. Mr O'Brien submitted that the evidence could be admitted pursuant section 1 and/or section 4 of the Civil Evidence Act 1968 and that it was unnecessary for the witnesses to be called. Mr Blunt QC submitted that we should not reopen the case at all on the basis that the further evidence did not reveal a sufficiently significant difference between the evidence at trial and that revealed before Judge McNaught. But, he submitted that if we did, we should hear oral evidence, including that of the plaintiff and other witnesses, as well as the two experts.

At the conclusion of the submissions of counsel, the court ruled that the further evidence should be admitted, since it was relevant to the plaintiff's mental condition at the time of Sedley J.'s judgment and to the prognosis for the future, which would or might affect the judge's assessment of general damages and the assessment made by both courts of future loss of earnings and the loss of future care and assistance. We directed that the only oral evidence should be that of Dr Lloyd and Mr Mackay. The plaintiff was anxious to call the former and we directed that he should attend, primarily for further cross-examination by Mr O'Brien, but also if need be to give evidence of the plaintiff's current state. So far as Mr Mackay's evidence was concerned, Mr O'Brien was content that we admitted the evidence he gave in the Family proceedings as his evidence. Mr Blunt QC was undecided whether he wished him to be recalled. But in the event, following a further examination of the plaintiff, he was called. I must now give my reasons for the ruling made on 23 October.

Because the plaintiff had given disclosure and production of the relevant evidence and waived any privilege that might exist, it was unnecessary at that stage to consider these questions, or the linked question of counsel's duty to the court. But because of the importance of these questions and because they raised issues of public interest, we directed that we should hear arguments on the adjourned hearing. Mr Blunt QC conceded that this court was not functus officio .

RSC. Order 59, rule 10(2):

"The Court of Appeal shall have power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds."

In my judgment it is unnecessary to decide for the purpose of this case whether the evidence sought to be adduced related to matters which occurred before or after the date of the trial or hearing. They all occurred after the conclusion of the evidence before Sedley J.; the substantial improvement in his health was known to Mr Vernon before submissions were made to Sedley J. The important change was known to the plaintiff's advisers before he gave judgment. But unless the matter was reopened before the judge at the instigation of the plaintiff or his advisers or they notified the defendant's advisers, there was no way in which the latter could have known of these matters earlier than they did. Evidence relating to the review by Judge McNaught in November/December 1995 occurred between judgment and hearing the appeal in the personal injury action.

It was accepted by Mr Blunt that the defendant could not by the exercise of reasonable diligence have obtained the fresh evidence either before Sedley J. gave judgment or before the hearing of the appeal to this court. It was never suggested by Mr Blunt, that if the defendant's advisers knew that proceedings had been heard in the Family Court (as to which we have no indication beyond the fact that the plaintiff was claiming in such proceedings that he could care for his children when they stayed with him), they should have appreciated the dramatic improvement in the plaintiff's health, or that his doctors opinions had changed so dramatically in such a short time, so as to apply themselves to Judge McNaught to release the relevant documents.

In Mulholland v. Mitchell [1971] A.C. 666 the House of Lords held that the exercise by the Court of Appeal of its discretion to admit fresh evidence as to matters arising after the date of the trial was largely a matter of discretion and degree. The principle that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial.

Lord Hodson at p 676 G said:

"In this case I think that it can be fairly argued that the basis upon which the case was decided at the trial was suddenly and materially falsified by a dramatic change of circumstances.

An appeal on the whole question of damages is pending and it would be unsatisfactory for the Court of Appeal to deal with that appeal without taking into account the falsification, if such there be, of the basis of the trial judge's award. In the absence of the fresh evidence, the Court of Appeal would be restrained from dealing with the reality of the case before it."

Lord Wilberforce said at p 679 G:

"I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree ( Murphy [1969] 1 WLR 1023, 1036). Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judges's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that Court"

One of the matters which I regard as significant in this case is that the events occurred so close to the trial. If Mr O'Brien's submission is correct that this evidence falsifies the assumptions and findings made by the trial judge and this court, then in my judgment it would be inequitable not to admit it. It would in Lord Wilberforce's words affront common sense or any sense of justice.

The judge reviewed a great deal of evidence from friends of the plaintiff as to his present position. He also had the evidence of Mr Moxham a social worker employed by the Gloucestershire County Council, who had had much to do with the plaintiff. The judge summarised this evidence at p 202 H as follows:

"The description which Mr Moxham gives of Mr Vernon in his present state is of a man who has lost the capacity and the will to cope. Typically he will find, on his visits, that Mr Vernon is still unshaven and in his nightclothes. He is often pallid and incoherent. The house is a mess, with washing up left undone for days and clothes unwashed or unironed. the house is full of unorganised documents, largely concerning the present proceedings. Mr Vernon attempts to plan his day with detailed timetables which invariably founder on some unexpected obstacle. But within the pattern of prolonged troughs Mr Moxham has observed occasional peaks when Mr Vernon has operated 'effectively and even super-efficiently' for a short time, for instance in dealing on the telephone with his applications for benefit or when dressing for a social occasion. Mr Moxham has also been impressed by the tenderness with which he has seen Mr Vernon handle his son 'C'. But the general picture is of hopelessness. Mr Vernon is apparently incapable of working the washing machine; he tells Mr Moxham: 'I am so muddle-headed I cannot remember the sequence of the symbols to push'. Mr Moxham accepted (and I agree) that this was 'quite extraordinary' and that most men who find themselves on their own can learn to handle a washing machine. Mr Vernon is also incapable of planning his diet and shopping: he will spend hours of indecision in a supermarket.

To Mr Moxham, as also to the court in evidence, Mr Vernon attributed his dullness and muddle to his drug regime; but he fears even more the consequences of departing from it. This is something which I am prepared to credit in the light of the evidence (to which I will come later) of the psychiatrists. But none of the experts suggests that the drug regime is responsible for Mr Vernon's moral paralysis and Mr Moxham is insistent that it is not an affectation: Mr Vernon, he says, demonstrates by the way he over-complicates activities that he is now incapable of carrying them out."

The judge then reviewed the evidence of Mrs Waterman, an occupational therapist. She described the plaintiff in similar terms to Mr Moxham. As to the tasks of looking after himself the judge said at p206:

"These were tasks which Mr Vernon was physically capable of doing for himself, Mrs Waterman agreed, but in her view - and mine - what he lacked was the motivation to do them."

The judge then referred to the evidence given by Dr Swan, who was a psychiatrist called for the defence, which was that during a long interview with the plaintiff he was able to welcome her in a reasonably competent fashion to a tolerably tidy home. He commented at p207B:

"Thus, as it seems to me, he remains capable of responding well to positive stimuli, at least for limited periods, and when he does so his behaviour reverts in many respects to normality".

Referring to his own observation of the plaintiff when giving evidence the judge said at p215E:

"On the other hand the greater part of his evidence was marked by a degree of garrulity which cannot possibly have been feigned. This was a man who had very little difficulty in recalling events but found it impossible to organise or crystallise what he recalled in order to answer the questions which were being put to him by his own or the Defendant's counsel. Within this rambling structure were repeated passages of self-congratulation and self-justification suggesting to me a lack of contact with reality - not simply historical reality but the reality of his situation as a litigant called upon to give an intelligible account of himself to a court."

The judge said that the plaintiff's inclination to ramble and tire more rapidly than other witnesses might be exaggerated by his drug therapy, but was not generated by it. His summary of the plaintiff's present condition was as follows: 217A

"Mr Vernon in his present state is clearly unemployable except perhaps, in some menial or sheltered occupation. He is socially inept and prone to vagaries of conduct which inspire sympathy and concern among those who know him or have the task of caring for him, but which would make it impossible to entrust him with any responsibility. I have no difficulty, either, in accepting that he is impossible to live with, and that his wife's departure with the children in the later part of 1992 was to all intents and purposes the ineluctable outcome of the state to which he had come."

At p200F he said:

"....on any view the plaintiff is today a tragic figure: he tires quickly, loses concentration easily, becomes emotional or combative when there is no need to do so and repeatedly rambles away from the point. He confabulates frequently when there is no hard evidence to tie him down and sometimes even when there is."

At p410E. He said that before the accident the plaintiff was

"socially, personally and economically competent, where now he is none of these things."

At p430 he said:

"Returning then to the nature of Mr Vernon's condition, I consider that what the witnessing of the accident has done to him has been to destabilise for good a previously insecure but manageable personality, provoking chronic reactive anxiety and depression which have now become permanent features of his mental state. So too has the tendency which was always there to compensate for failure by making grandiose and unreal claims about himself and his past achievements, but now in absurdly and uncontrollably exaggerated form. Likewise, a tendency (which he formerly recognised and took steps to guard against) to lose the thread of his own reasoning under stress has now become an uncontrollable urge to depart from the point and travel down endless byways of dialogue. Delegation to others of many tasks which he might have done himself has degenerated into helplessness and dependency. While much of this behaviour is manipulative, in the sense that by it Mr Vernon seeks sympathy and attention, the impulse to manipulate is not in my view calculated or deliberate: as Dr Gaind told me could be the case with obsessive personalities, I think Mr Vernon's manipulative behaviour is compulsive. But the compulsion itself is not constant. Precisely because these have been reactive and not endogenous changes, they have waxed and waned in relation to other life events. Thus during the lifetime of Paraero, and in spite of the succession of major problems bedeviling it, the stimulus of the job enabled him to function adequately in it, although not with the same grip as before: and correspondingly when the business failed, the anchorage it had provided went with it, with the result that from then on - apart from the again characteristic rally which nearly got him the McDonnell Douglas job - he sank into the kind of demanding helplessness which has seen the collapse of his marriage and the fading of all serious employment prospects. Of all these things the witnessing of the accident was not the sole cause, but it was the initiating cause of an uneven but perceptible sequence of mental deterioration and personality collapse in an already vulnerable individual."

At p433C after referring to his pre-existing fragile personality the judge said:

"The principal effect of the trauma mediated by these features, was on a personality which, unable to cope with them, has given way to what is now an inextricable mixture of psychiatric disorder, personality disorder and, I strongly suspect, iatrogenic bias in the manifestation of both. It is those paranoid and neurotic traits demonstrated by the Defendant's evidence but not amounting before 1982 to true disorders which have been inflated by the trauma of the index event into major psychiatric and personality dysfunctions"

At p436 the judge said:

"Two critical questions are posed in relation to the future: what is the prognosis for the plaintiff's mental condition; and to what extent, if any, is the plaintiff's prognosis different from what it would have been had the accident not occurred?

To the first of these questions the Defendant's answer is dictated by the demands of consistency: the plaintiff, it is said, has always been much as he is, but on a downward curve which will continue with more or less severity depending on the ordinary incidents of life."

I should interject at this stage to point out that the defendant's case was that witnessing the accident had not caused the plaintiff's mental condition. It was accepted at any rate at trial that he was mentally ill. The defendant had no medical evidence to dispute the prognosis advanced by the plaintiff's doctors.

The judge continued:

"For the Plaintiff it is said that the future is equally bleak: he will continue to be socially and domestically inept to the point of helplessness, requiring constant personal attendance and psychiatric and social work care even if, which is doubtful, he can be placed in some kind of sheltered employment. I do not accept either of these scenarios. The 12 years which have elapsed since the accident have amply demonstrated that Mr Vernon,s mental deterioration has been reactive not only to the accident but to the other external events. Thus, as it seems to me, the stimulus and distraction of running Paraero, and on the emotional side his affair with Miss Beattie, did much to disguise or inhibit the effects of the trauma on his mind and personality, and when these were released by the collapse of the business at the beginning of 1986 they were again reversed in part by the challenge of the nearly-successful job application to McDonnell Douglas; albeit all these elements of remission co-existed with observed signs of distress and disorientation. Similarly the coming of this action to trial has provided a further focus for optimism, bringing about, in Dr Lloyd's view, a perceptible improvement in morale in the latter part of 1993 and, as I have witnessed myself, a sprightliness of dress and manner reflecting the old self described by others, though not sufficiently to disguise or offset the now serious dysfunction evident in his garrulousness and grandiosity.

It is into this person in his fluctuating but diminished state that I have to project the outcome and effect of the present action. The action is going to result in an award of damages to him which in the eye of the law compensates him as nearly as money can for what he has lost by the accident. But its effect on Mr Vernon's future morale and wellbeing is for me incalculable. In practical terms it will depend upon the effect of any payment into court which may have been made, on any shortfall in recovered costs and on Mrs Vernon's claims on her own and the children's behalf upon whatever sum remains. In psychological terms I fear that whatever sum Mr Vernon is awarded will not satisfy him, for it is not going to be the full amount he claims. The auguries, therefore, are that Mr Vernon will not leave this court feeling like a man who has just won the national lottery; with or without good reason he may be disappointed. I do not think that the Defendant can be required in law to take responsibility for this; but neither do I think the Defendant is entitled to have the court treat the Plaintiff as a man whose grounds for future anxiety and depression are at an end. The best I can do is seek to compensate the Plaintiff both for the past 12 years about which I know in great detail and for a future in which he will continue to be capable of being buoyed up by life events and occasionally self-starting on modest projects but, for the rest, prone to depression, anxiety and disorientation to a degree which can be significantly offset by therapy and care but which will continue to make him socially and economically inept."

It should also be borne in mind that the judge awarded £51,452 in respect of occupational therapy over the next five years and £14,640 thereafter adopting a multiplicand of £1830 per annum and a multiplier of 8 from 1999, a total of 13 in all. He awarded £41,474 for future domestic help on the basis of 15 hours per week with a multiplier of 13; these multipliers are not far short of a whole life multiplier for a man of the plaintiff's age. And he also awarded £3,952 for gardening, on the basis that the plaintiff could not do this, taking four hours a week and a multiplier of 5. These awards indicate to me that the judge did not anticipate any marked or consistent improvement in the plaintiff's condition. Although there might be periods when his mood and motivation improved, this would be the exception to a generally gloomy future of what he described as social and economic ineptitude. Although this court disallowed the recovery of damages for future occupational therapy and drastically reduced the quantum of the claim for future domestic help, our reasons for doing so do not affect the judge's assessment of the plaintiff's present condition or his prognosis.

The prognosis was based on the evidence of Mr Mackay and Dr Lloyd. In his report dated 5 November 1993 Mr Mackay said:

"I am bound to say that on the last two occasions I saw Peter (28th September, 28th October) he appeared more cheerful than he had for many years and I could detect no trace of suicidal ideation during these sessions. Moreover, for the first time since I commenced therapy with him, he was able to maintain eye contact throughout these sessions - an indication of improved powers of concentration and increased self-confidence.

Peter acknowledged that he was feeling brighter and attributed this to:

* A new-found friendship with a local family.

* Considerable practical and emotional support from his social worker and art therapist.

* Evidence of 'real' progress in the preparation of his case.

* The release by Prue Vernon of additional funds to enable to sustain a moderate lifestyle.

Although all four factors may have a part to play, it is possible also that the breakdown of the family unit has changed his perspective on the claims case. Should this be so then the obsession may have weakened thereby enabling his mood to lift to some degree. Nevertheless I must emphasise that he remans profoundly depressed.

It is too early to say as to whether or not my most recent observations indicate a temporary amelioration of symptoms or, alternatively, the first signs of change at a more fundamental level. In view of the intractable nature of his depression throughout the last seven years, I am inclined towards the more pessimistic interpretation."

He also considered that the plaintiff would need the services of a housekeeper and occasional driver to cook his meals and assist with his day to day living.

When he gave evidence before Sedley J. he elaborated on the prognosis; he spoke of matters which occurred during the trial over the Easter weekend which led him to conclude that the improvement noted in September was only temporary. At p479C in the transcript of his evidence he was referred to the passage in his report which I have quoted.

"Q: ...You were saying that he remained profoundly depressed. What is the position?

A: The position at this point in time?

Q: Yes.

A: I think no change."

At E:

"A: I agree with the sentence which immediately follows, 'In view of the intractable nature....' In other words, particularly reinforced by our telephone conversation over the Easter weekend, I am inclined to the view that his depression is chronically persistent and will remain so."

At F:

"A: I think what I am saying clearly is that if there had been a significant and profound improvement in his condition he would not have so quickly collapsed into his depressive state over the Easter Holiday. In other words he remains profoundly depressed.

Q: What I am asking, Mr Mackay, is whether your opinion that it is too early to say is still your opinion or whether you have changed it.

Mr Justice Sedley: Well what do you say?

A: I am trying to be as clear as possible. I was unclear as to whether from September onwards his mood had picked up significantly and that he was recovering from this depression after all these years. I felt it was too early to make a definite statement on that. Although I have not had a therapeutic session with Peter Vernon for some considerable time, the degree to which he basically collapsed psychologically over the Easter weekend convinces me that it is not too early to say that he has not made any significant recovery.

Q: It is fair to say that the amelioration can now be seen to have been temporary.

A: Yes my lord."

At 480 G:

"A: I think he presents less of suicidal risk even though the superficial improvements we noted, proved to be superficial and he remains really very unable to function effectively."

In his report of 14 May 1993 Dr Lloyd had said (see p495)

"4. Improvement or deterioration since your first contact with him?

At present he is more depressed than when I first met him and at present I think this deterioration is particularly related to the breakdown of his marriage, separation from his children and the fear of eviction from his house and how this will affect his ability to pursue his compensation.

5. His present condition

He is withdrawn with little interest or energy. Particularly he has trouble getting started in the mornings when he appears to be his most lethargic and depressed. He cannot see a future and has suicidal thoughts. His sleep is poor. He is and feels isolated from people.

IN SUMMARY: He is suffering from a state of severe depression...."

In evidence he was referred to this part of his report. At p485B:

"Q: How has his condition been since May 1993 and what has the cause of his condition been?

A: In my opinion he continued to remain depressed, subdued, very lethargic, lacking energy and interest and then around September time I noticed an improvement in his mood and this improvement seemed to be independent of any therapeutic activity on my behalf or by the team. My impression of that improvement was that it was possibly related to two factors: a lady called Lavinia Verney was helping him out at home and I gather she has had similar problems in some ways to Mr Vernon and also I think he was pleased that this case was moving to some kind of resolution.

Mr Justice Sedley: This is September 1992?

A: September 1993.

Mr Blunt: You have seen Mr Vernon on and off during the course of this trial in Cardiff and here and how has his condition compared to its pre-summer 1993 condition?

A: I think he has been significantly better. There have been occasions when I have observed him in the court room to be very distressed in relation to certain evidence that has been given and perhaps on certain days he has been more subdued than others. I would say overall his clinical condition, I don't think it was as good as he was in September/October of last year but it is better than it was before then; presents in a better state."

He then spoke of matters which occurred over the Easter weekend of 1994 and in particular a long telephone call. He described the plaintiff as rambling. He referred to the improvement in September 1993 and was asked at 486 G-H:

"Q: Can comparisons be drawn between the way in which he presented to you on 15 September and the way in which he appeared to you when you spoke to him over the telephone on the Easter weekend?

A: Yes, I do not think he was by any means as good when I spoke to him on the telephone on the Easter weekend."

He said the plaintiff had developed many features of a chronic depressive illness and would probably need long term medication in one form or another. He confirmed that in his opinion the prognosis was poor.

Although there are some significant differences between Mr Mackay's report of 14/17 October and 31 October/1 November, it is sufficient at this stage to refer to the latter. Mr Mackay saw the plaintiff on 11 October 1994 with a view to re-assessing his mental state. It will be remembered he had last seen him at the time of the trial in April.

He spoke of the significant improvement which he had noted in September 1993. At p44 he said:

"This improvement persisted during the ensuing months and, indeed, he coped extremely well with the stresses and strains of court attendances between January and July when his claims case was being heard. The only exception of note was a brief relapse during the Easter recess."

That was a reference to the incident at Easter 1994 which he had referred to in his evidence before Sedley J. and which had been crucial to his gloomy prognosis. At p45 he said:

"The ongoing improvement in his clinical condition (reported above) was even more evident on arrival and, during my examination of him, I could detect no indication of depression, suicidal ideation nor anxiety symptoms."

After referring to a tearful reaction to the Estonia disaster which apparently reminded the plaintiff of the accident to his daughters, and which was quickly brought under control, the report continues:-

"In pronouncing him free from any disabling psychological disorder, I have taken particular account of the following features of his presentation:

* Excellent eye contact, good humour and normal posture.

* Clear concise orderly thinking and an absence of verbosity.

* No evidence of obsessional thinking or inconsequential following of side issues.

* Sleeping well apart from occasional nightmares concerning the current domestic situation.

* Concentration and memory good.

* Socially active leading to the restoration of former friendships."

At p46:

"So far as practical parenting skills are concerned, he informs me that when the boys visited him for a few weeks during their school holidays, he cooked for them, cleaned the house, did the laundry and performed clothing repair jobs without assistance from any other party. This is consistent with my clinical impression of him that he has apparently fully recovered from the chronic and unremitting depression which had impeded his functioning during the previous seven years. However it must be borne in mind that he is continuing to take antidepressant medication and therefore a degree of symptom 'masking' cannot be entirely ruled out."

The word "apparently" has been substituted for the word "is" fully recovered in the 14/17 October report. In the next paragraph he referred to the three factors which had led to a complete recovery.

When he gave evidence before Judge McNaught it was substantially to the same effect. The notes of his evidence contain the following passages (p56):

"I didn't anticipate the degree of recovery which had taken place. Case has had some independent therapeutic benefit. I think he'll be a well man from now on. I think he could cope with continuing uncertainty between these two procedures. I wouldn't actually describe this as cathartic. I don't see future employment for him. A very difficult subordinate. Doesn't suffer fools. He is someone who challenges. Junior role is not likely. Senior management ruled out by age and medical history. We have 'type A' competitive/aggressive/ goal sensitive/ hard-driving businessman alongside caring/sensitive emotional needs of subordinates. An unusual combination. On day of tragedy he went into factory to see to welfare of his workforce. In current state of health, I find the old rigidity/obsessional behaviour has gone. He's much more flexible and adaptable. He began asking for all 3; now only for 1. That shows flexibility."

That is a reference to the fact that his application for a residence order had originally been for all three children, but he was now only seeking it in respect of the youngest.

"In my professional opinion, period of chronic depression has ended. If he got depressed again, that'd be quite separate. I see his depression since 1982 as ended. His symptoms are now normal."

He thought he might need psychiatric counselling for 6 months because of his tearful reaction to the Estonia - which lasted about two minutes till he controlled himself. He said that he was surprised by the speed of the plaintiff's recovery.

It is plain in my judgment that although Mr Mackay added a caveat because the plaintiff was still receiving medication (in substantially reduced dosage) he considered that he had made a dramatic and virtually complete recovery and that any future problem would be unrelated to the effect of the accident. This is quite different to the opinion that he gave to Sedley J.

In Dr Lloyd's report of 31 October 1994 he records that he has seen the plaintiff on five occasions since the evidence in the personal injury trial was completed in July. The report continues (p26):

"Following my last report of 7 May, 1993, Mr Vernon continued to be in a depressed state with little initiative or motivation, but in September, 1993, I noted that there was a definite improvement in his mood - he appeared more alert, was less slowed up and withdrawn and significantly more cheerful. This improvement has been maintained despite pressures of his prolonged compensation trial and divorce and custody proceedings.

I was required to attend court for fifteen days during the compensation trial and found Mr Vernon to be smart, alert and attentive and able to conduct himself with dignity. There were occasions when he was emotionally distressed as a result of the evidence given in relation to the death of his two children, but this response was understandable and reasonable given the tragic loss."

He dealt with the reduction in medication, in particular the halving of the dosage of Trazadone from 400 mg to 200 mg between January 1994 and October and added that there was no evidence that medication was hindering him from performing everyday tasks.

Under prognosis, he said (p27):

"Following the death of his children he suffered from severe prolonged post-traumatic stress disorder the consequences of which were to cause a state of chronic depression which has improved quite dramatically in the last year."

At p28 after referring to the Court Welfare Officer's report of 15.3.93 Dr Lloyd said (p28):

"It is clearly the case that Mr Vernon's depression has improved dramatically since this report was written - indeed he is no longer clinically depressed"

Under conclusions (p29):

"In my opinion Mr Vernon is currently in good mental health and is not showing symptoms of depressive illness, although I feel he needs continuing pharmacological treatment and outpatient supervision to minimise the risk of relapse especially during this particularly stressful time."

In his evidence before Judge McNaught he is recorded as saying in relation to the evidence he gave before Sedley J. (p54):

"I spoke of prognosis as being very poor, that was then my opinion. I'd have to modify it since then. He's continued to remain free of depression. We've reduced his medication. Appropriate to see if medication could be reduced or even stopped. He has a potential for relapse. His depression is in remission but I can't say he is cured. This is the longest period of remission he's had. I didn't foresee this in April. When I made comments to Sedley J. I'd seen him depressed for most of the time. It was early days to be optimistic."

He later said the plaintiff was not now clinically depressed. It was very difficult to be sure why he should have begun to improve since September 1993 but he felt sure the improvement was genuine.

In a report prepared for the review hearing, probably dated in August 1995, Dr Lloyd recorded a further reduction in Perphenazine (Fentazine), a tranquilser taken at night. The dose was now a quarter of that the previous year. There were no ill effects. His conclusion is expressed as follows (p68):

"Since my last report, Mr Vernon has remained in good mental health. He has certainly shown no evidence of depressive illness. It has been possible to reduce some of his medication, with no deterioration in his condition. He is coping well with life and at present I see no reason why he should not continue to do so. At present, I do not feel that there are psychiatric grounds to prevent him for caring for his son, "C", on a full time basis and I think it extremely unlikely that such grounds would arise in the future."

Finally it is necessary to refer to some of the evidence of Mr Vernon in the Family proceedings. In a statement dated 30 September 1994 he said among other things:

"28 My psychiatric situation has improved dramatically since the separation two years ago."

In paragraph 29 after referring to the reduction in his drug regime he said:

"These drugs do not have an adverse effect on my ability to cope with practical day to day matters including for example driving my car."

Para 31:

"My health poses no problem in my relationship with the children nor with my ability to care for them."

In his oral evidence before Judge McNaught he did not resile from this.

In a statement dated 1 April 1995 prepared in the review hearing he said:

"9 I can confirm that my mental health remains satisfactory and there is no suggestion that I will suffer a relapse."

In my judgment there can be no doubt that if Sedley J. had known of this change, his conclusion as to the plaintiff's state at the time of his judgment and prognosis would have been very significantly different. He would not have awarded anything like £37,500 for general damages, he would not have awarded £67,000 for future occupational therapy, £41,574 for future domestic assistance, £3,952 for a gardener, and the discount of 5% which he made from the plaintiff's full future loss of earnings must have been greater.

Had the evidence of Mr Mackay and Dr Lloyd which was given before Judge McNaught been available to this court, and both witnesses confirmed that they would have given such evidence before Sedley J. in October 1994 to January 1995, it would in my view have had the following effect:

1. The award for general damages, if appealed as it now is, would have to be substantially reduced.

2. It would have provided a short and conclusive answer to the claim for occupational therapy in the sum of £67,000, which plaintiff's counsel sought to uphold.

3. It would have resulted in disallowance of the claim for future domestic assistance in the sum of £41,574, which plaintiff's counsel sought to maintain, and which we reduced to £10,233.60, and the claim for £3,952.00 for gardening.

4. It would have required a further discount in the future loss of earnings to reflect a more realistic possibility that the plaintiff can and will obtain paid employment.

These are the reasons that convinced me that this was a case where we should accede to Mr O'Brien's application and admit the further evidence. Moreover although Mr O'Brien has not sought to reopen the case on the causation and aetiology of the plaintiff's condition, I think it is possible, to put it no higher, that if Sedley J. had appreciated that the prognosis given by Mr Mackay and Dr Lloyd would be so swiftly falsified and the significance which they attached to the Easter 1994 deterioration so soon discounted as being a temporary phenomenon, not even worth mentioning by Dr Lloyd to Judge McNaught, he might have wished to reconsider his findings on causation, since he relied in no small measure on the evidence of these two witnesses in reaching his conclusions. Furthermore I have to say, that if I had been aware of this change, I should have regarded it as supporting the view which I had reached, that on all the evidence the plaintiff had not discharged the onus of showing that his prolonged and debilitating mental illness was caused or substantially contributed to by the accident events.

I am at a loss to understand how this fresh evidence can be said to be inconsistent with the defendant's case at trial or on appeal. This was not a submission made by Mr Blunt. It was the defendant's case that the plaintiff's mental state was a reaction to life's events, in particular the loss of his business, his inability to obtain employment and the break-up of his marriage and that his condition waxed and waned as it had done before the accident.

In my judgment it was only because the fresh evidence was likely to have a significant impact of the amount of the judge's or this court's award of damages that the court was justified in admitting it. It cannot in my view possibly be a proper exercise of this court's discretion to reopen the appeal simply to give expert witnesses the opportunity to explain their evidence and the change that has come about in it. In any event this explanation is apparent from the documentary evidence to which I have referred, namely that the plaintiff had made a dramatic recovery since they gave evidence and since the gloomy prognosis they gave in April 1994.

We have now heard further evidence from Mr Mackay and Dr Lloyd, in the form of reports and oral evidence. It comes as no great surprise that following a further consultation with Mr Mackay on 28 October 1996, and consultations with Dr Lloyd, on 18 September 1996 (following the halving of the plaintiff's D.S.S. disability allowance) and on 2 October 1996 for the purpose of preparation of a further report for the court, that both witnesses report a deterioration in the plaintiff's position. The difference between their evidence in cross-examination and re-examination was so marked, that it demonstrated quite clearly, if indeed any further demonstration was needed, their lack of objectivity. While this is understandable, since Mr Mackay had treated the plaintiff for a very long period of time and clearly empathised with him and Dr Lloyd was continuing to see the plaintiff and support him, an ongoing relationship he clearly did not wish to jeopardise, it does not make the court's task any easier.

In his report Mr Mackay expressed his opinion thus:-

"It is my opinion that Peter Vernon is currently suffering from mild depression as evidenced by social withdrawal accompanied by variability in mood, impaired cognitive functioning and sleep disturbance. He is clearly reliant on medication and indeed on the support he receives on a regular basis from Dr Lloyd and colleague.

This contrasts with the way he presented on 11 October 1994 when I judged him to have recovered from his long-standing illness and indeed to be well in himself in the sense of being free from symptoms associated with any recognised mental illness. At the same time I noted that he was continuing to take medication and I made the point then that it was difficult for me to make a definitive statement concerning his psychological status under these circumstances. Nevertheless I formed the opinion then that he was continuing with his medication regime at this time, principally for precautionary reasons. He was far less dependent on mental health professionals in 1994 and indeed was enjoying a full and varied social life.

Although he is currently suffering from mild depression, it must be emphasised that his clinical condition is qualitatively different from the picture of profound and disabling depression he presented to me on an ongoing basis between 1986 and 1993 and from which I thought him unlikely to recover. I am in no doubt in my mind that the trial itself proved to be extremely therapeutic in his regard and that it is as a result of having had a full and fair hearing concerning the 1982 tragedy and its aftermath that he was finally able to let go of the past in the later part of 1994.

The subsequent deterioration in his condition is, in my view, a reaction to the following:

(a) frustration caused by his inability to resolve issues pertaining to the welfare of his children.

(b) his belief that Mrs Vernon is behaving unreasonably towards him and that the various agencies are failing to take an objective stance in this matter.

(c) financial concerns, with particular reference to ongoing insecurity regarding his place of residence.

(d) the fact that the matter in hand has yet to be resolved."

In his evidence he said that the effect of the 1982 accident was that he was more vulnerable than he otherwise would have been to react adversely to life's events.

Dr Lloyd's opinion as expressed in his report of 8 October 1996 is as follows:

"Currently, Peter is in a state of mild to moderate depression. He appears demoralised by the effects of prolonged litigation and an increasingly precarious financial situation. While able to cope with mundane day to day activities which include looking after the physical needs of his son "C" and also providing him with emotional support, I believe he is still extremely vulnerable to stress and I think he copes with this largely because of the medication he is taking, the degree of support he gets from myself, and also the degree of support he gets from others such as Mrs Rose Harvie who helps him with domestic chores and Mrs Angela Hammond from the Citizens Advice Bureau. In particular, if his anti-depressant medication were to stop I think there would be a significant decline in his mood and level of functioning. he will need to take anti-depressants, tranquillisers and sleeping tablets indefinitely and I do not envisage reducing my contact and support of him in the foreseeable future."

The following matters emerged from their oral evidence:

1. Both witnesses now regarded the events at Easter 1994 as a temporary deterioration in the otherwise sustained recovery between September 1993 and October 1994, rather than the improvement in September as being a temporary and unsustained improvement.

2. There was nothing in Dr Lloyd's clinical notes to suggest that there had been a deterioration between September 1993 and April 1994.

3. There had been no record of anything that Dr Lloyd considered amounted to mild or moderate depression in the clinical notes or quite frequent letters to the plaintiff's general practitioner between October 1994 and June 1996. This despite the occurrence of a number of serious set-backs which might have been expected to produce an adverse reaction. These include the failure of his residence applications, both before Judge McNaught and the Court of Appeal, an award of damages by Sedley J. considerably less that he hoped for, and the halving of that award by this court with adverse consequences as to costs. This suggests that the plaintiff is no longer particularly vulnerable to adverse life events.

4. In June 1996 there was a temporary deterioration which followed a change of drug regime from Trasodone to Trimipramine, because it was thought the former might be affecting the plaintiff's libido. When Trimipramine was changed to Paroxitine at a starter dose level the plaintiff improved until mid September when there was a further deterioration. Dr Lloyd at the time attributed the problem in June to the side effects of the Trimipramine. There does not seem any reason to doubt that this was correct.

5. When Dr Lloyd saw the plaintiff on 15 and 30 October 1996 he had again improved, the deterioration in September/October 1996 could well be as transient as that in April 1994.

6. There had been no increase in the plaintiff's drug regime since October 1994 and no change, other than that in June 1996, save that Fentazine (a tranquilliser) had now been reduced to the minimal dose of 1-2 mg.

7. The plaintiff would need to continue with his medication, at least until his matrimonial and financial difficulties are resolved. The medication is prophylactic, to prevent a relapse in response to adverse events. The medication does not affect him functioning normally. Many people who suffer mild depression function normally and hold down jobs.

It is difficult to know to what extent if at all the plaintiff's present condition and that which existed between October 1994 and October 1996 differs from his pre-accident condition. The judge described the latter as being subject to physiological, behavioural and social disfunction, transient clinical depression which was in reaction to stress, requiring treatment by anti-depressants similar to those he is now taking. He had obsessional traits but which did not amount to disorders sufficient fundamentally to compromise his ability to function. He suffered from a paranoid personality trait but not a paranoid personality disorder. He suffered from reactive mood swings which touched hypomania and depression but not sufficiently to be characterised as bi-polar disorder. On the other hand he suffered a chronic depressive illness, at least from 1986 after his failure to get employment following the collapse of Parearo until September 1993, he has been unemployed since that time and his marriage has broken down, from late 1983 he has been continuously on anti-depressant drugs, although the dose since October 1994 has been a low one. These factors may have made the plaintiff more isolated and accentuated his previous personality traits, although Mr Mackay thought that the plaintiff had matured and his experience had made him more aware of other people's problems.

Mr O'Brien submits that there has been an element of manipulation in the plaintiff's recent complaints to Dr Lloyd and Mr MacKay, though he stops short of alleging deliberate malingering. It is certainly a remarkable feature of the two occasions since September 1993 when a downturn in the plaintiff's conditions has been observed by them, namely April 1994 and October 1996, that these precede occasions when these witnesses were to give evidence in this litigation. The plaintiff is well aware of the features which the doctors regard as evidence of depression. Sedley J. on many occasions throughout his judgment referred to this aspect of the plaintiff's personality, describing him as compulsively manipulative and someone who before the accident moulded reality to suit his convenience. It seems to me that there was an element of exaggeration in the plaintiff's complaints when he was seen by the witnesses for the purpose of preparing their relevant reports.

I conclude that the plaintiff has made a substantial recovery which has been progressive since September 1993 save only for the temporary deteriorations in April 1994 and October 1996. While this cannot be said to be complete because he will require medication at the present low level for the foreseeable future and also the supportive therapy afforded by Dr Lloyd, this does not prevent him from functioning normally. In particular he has been able to weather the very considerable set-backs throughout this period which might have been expected to affect a vulnerable person, without any adverse affect.

Mr Blunt submitted that if we reopened the case to hear further evidence from Mr MacKay and Dr Lloyd we should hear from the plaintiff as to his present condition and from an employment expert as to the sort of employment the plaintiff might be able to obtain and at what salary levels. We did not accede to this application. So far as the plaintiff is concerned we know what he was saying about his health in October 1994; we also had Dr Lloyd's clinical notes recording the plaintiff's condition at fairly regular intervals since then. The judge found the plaintiff to be an unsatisfactory and unreliable witness who was compulsively manipulative. There is also abundant evidence from his pre-accident job applications that he was untruthful when it suited his convenience. If Mr Vernon had given further evidence it would only have invited further lengthy cross-examinations to show this court what the judge had already concluded. We did not think further evidence from him would assist the court.

As to further evidence from an employment expert, no doubt to be countered by such a person called on behalf of the defendant and which would in any event have occasioned further delay and expense in this far too protracted litigation, again we did not think this would assist the court. Such evidence would be unlikely to be sufficiently precise and would be likely to be discursive and speculative depending on the findings of this court. In my judgment the court must adopt a broad-brush approach to the question doing the best we can with the material at our disposal.

Mr Blunt submitted that the plaintiff's condition as disclosed by the further evidence is not so manifestly different from Sedley J's findings to justify interference and that the present prognosis is within the range of the judge's findings. For reasons which I have already given I cannot accept this. In my judgment there has been a striking and significant change for the better in respect of each. So far as General damages are concerned, I bear in mind that if we disallow any cost of future domestic assistance, as in my view we should, the plaintiff is entitled to some compensation in general damages for the fact that such things as shopping and housework were before the accident done for him by his wife and that is no longer the case. I would reduce the General damages to £17,500.

Although this court very substantially reduced the amount under this head, we did so for two reasons. First because the judge increased the amount of domestic help from the 6 hours a week thought appropriate by Mrs Waterman to 15, on grounds that we did not consider sufficient. And secondly because we considered that the judge's multiplier of 13 was too high, we reduced it to 8. There is now no satisfactory evidence before this court that the plaintiff is unable to do the things for which these damages were awarded. At trial the judge said he was physically able to do them, but because of his depression he lacked the motivation to do so. That was essentially the position which was accepted by this court, though for the reasons I have given we reduced both multiplicand and multiplier. I would now disallow any claim under this head.

We thought on the hearing of the appeal that the judge's award of £3,952 under this head was generous, but in the context of the case as a whole we did not see fit to interfere. In the light of the further evidence I cannot see any justification for this claim and would disallow it.

Mr O'Brien submits that the plaintiff is now capable of doing the type of work which the judge found he would have done but for the accident. At trial the defendant's contended that the plaintiff, but for the accident, would not have been the successful high flying executive which he sought to portray himself as, and because of his personality he would not accept a more modest level. The judge accepted the first of these submissions but rejected the second. The error which this court detected in the judge's findings did not affect these points, but rather we held that the judge had applied too high salary levels for this more modest field of employment and had failed to give a sufficient discount to reflect the problems to which the plaintiff's pre-accident personality would give rise in obtaining and keeping employment. We therefore reduced the multiplicand to £30,000 a year for the year commencing March 1988 which at the time of trial had risen to about £49,000, and increased the discount to 40% to reflect those difficulties. Mr O'Brien submits that there is no reason why the plaintiff should not obtain employment at this level, subject to the same discount to reflect the same problems. He relied strongly on passages in the October/November 1994 reports of Mr Mackay and Dr Lloyd.

So far as Mr Mackay is concerned these are the relevant passages: Core Bundle p47

"I believe the changes I have observed to have a solid basis to them, given the restoration of his self-esteem, and I have every confidence that Mr Vernon is now sufficiently resilient, in the psychological sense, to withstand everyday stresses and strains in his future life.

I am less confident, however, that he will be successful in obtaining employment of a meaningful nature at any time in the future. Given his personality and past career history, he would be unlikely to function effectively at a junior managerial/administrative level and I would require him to undergo a full psychometric assessment before offering my opinion as to his suitability for returning to his former career grade, which would require him to deal with the particular stresses associated with a senior management role (e.g. effective decision making under time pressure). In any event, given his age and medical history, I believe his would be unlikely to be successful should he attempt to apply for any positions involving more than a modicum of responsibility."

(This passage was added in the second report)

Page 48:

"Regarding his career prospects, however, it would be necessary to subject him to a vocationally oriented psychometric test battery before making any definitive statement as to his suitability for paid employment of a managerial nature"

(This passage was added in the second report)

"Now that he is well, he is at last able to employ the vast array of managerial and interpersonal skills, which made him such a charismatic leader in the past."

Mr O'Brien points out that the role in senior management contemplated by Mr Mackay after psychometric testing was the role the plaintiff envisaged for himself but for the accident which was rejected by the judge and that the judge has specifically held that he could and would have sought employment at the junior managerial/administrative level; therefore, submits Mr O'Brien, there is no medical reason why the plaintiff should not do that which the judge contemplated.

So far as Dr Lloyd is concerned the view expressed in his report of 31 October 1994 was (p.28B):

"Given Mr Vernon's age, his prolonged period of unemployment and his psychiatric history the prospect of his obtaining work at a level with which he would feel satisfied must be remote."

And to Judge McNaught he said his employment difficulties sprang from his age and his psychiatric history.

Mr O'Brien points out that the work Dr Lloyd is thus referring to is that as a high flying executive and therefore by implication there is no medical reason why the plaintiff should not work at a lower level contemplated and referred to by the judge. In his evidence Dr Lloyd attributed the plaintiff's difficulties in getting employment to his long period out of work since 1986, his psychiatric history and the fact that when he is ill aspects of his personality, such as obsessionality, rambling and lack of concentration are accentuated.

Mr O'Brien submitted that the plaintiff could conceal his psychiatric history in the same way as he had in the past in job applications concealed inconvenient facts. I do not think that this court should approach the matter on the basis that the plaintiff can be required or expected to practice deception on a potential employer. But he can with truth say that over the past few years he has been involved in heavy litigation and that so far as his health is concerned Judge McNaught and this court have held that he has recovered to a more normal state of health after a prolonged illness. Although I see considerable force in Mr O'Brien's submissions I do not think it is reasonable to suppose that the plaintiff has a realistic chance of obtaining employment at a net salary of around £50,000 per year.

Nevertheless the plaintiff is in my view capable of gainful employment and not merely in the sheltered employment which Sedley J. in any event considered doubtful and for which he made no, or no significant, deduction. (see p449 and 450). Mr Blunt submitted that the onus was upon the defendant to prove what work the plaintiff could do and at what salary rates, and that there is no evidence on these matters, therefore no deduction should be made from the figures previously assessed by this court. That is not so. In Blamire v. South Cumbria Health Authority [1993] P.1.Q.R. p q1 at p q5 per Steyn LJ this court held that the onus of proving what the plaintiff would have earned had he not been injured and what he was now likely to earn rested on the plaintiff throughout. I am satisfied that the judges's conclusion that the plaintiff is unemployable can no longer be sustained. I think we must do the best we can with the material available to us. Mr O'Brien has put before us figures taken from a New Earnings Survey in Kemp and Kemp which show a average gross earnings for managers and administrators to be £26,468 gross or £17,650 net per annum. Average gross earnings for all non-manual occupations are £22,256 per annum or £14,850 net.

With guidance from these figures I would take a multiplicand of £15,000. The plaintiff is now 54 and assuming retirement at 65 that would normally attract a multiplier of 8. However this has to be discounted by 40% to reflect the difficulties which the plaintiff would in any event have experienced because of his personality in obtaining and retaining employment. Moreover these difficulties, at least in obtaining employment may have been enhanced by his long period of unemployment and illness until September 1993. Accordingly I would discount the multiplier by 50%. The plaintiff's DSS benefits have also been affected by his recovery. The plaintiff has recalculated the past benefit for which credit must be given at £24,124.05 (instead of £16,842.36) and the future benefit at £1,327.12, which has been calculated as a multiplier of 6.24 x £212.68 per year. The same multiplier that I have adopted above namely 8 should be taken, producing a figure of £1,701.44. There would therefore have to be adjustments both to the past loss of earnings to reflect the difference in benefit and future loss of earnings to reflect the plaintiff's earning capacity and difference in benefit.

This is a convenient moment at which to deal with a dispute which arose between the parties as to how the average earnings index should be adjusted to reflect the increased earnings due to inflation between June 1987 and trial. In my opinion the plaintiff's approach more nearly approximates to that which this court adopted (but for an arithmetical error) and should be preferred. The adjusted portion will be as follows.

Plaintiff's net earnings for year ended April 1988: £30,000 (Judgment p.61)

Date AEI(SA) Salary Loss

p.a.

June 87-March 88 30,000 25,000 (10 months)

April 88-March 89

April 88 81.8

April 89 89.7

30,000x 89.7

81.8= 32,897 32,897

April 89-March 90

32,897x 98.1

89.7= 35,978 35,978

April 90-March 91

35,9780x 106.5

98.1= 39,058 39,058

April 91-March 92

39,058 113.1

106.5= 41,479 41,479

April 92-March 93

41,479x 117.8

113.1= 43,203 43,203

April 93-March 94

43,203x 122

117.8= 44,743 44,743

April 94-Jan 95

44,743x 125.7

122= 46,100 34,575 (9 months)

296,933

Less 20% 237,546

Less benefits of 16,842.36

220,703.64

Future loss multiplicand 46,100

Multiplier 9 x 9 = 414,900

Less 40% 414,900 x 40 165,960 248,940.00

100

Less future benefits 8,608.81

Less future earnings 15,000 x 4 60,000.00

Total future loss of earnings 180,331.19

Sedley J. and the Court of Appeal ?

This raises important questions in relation to the litigant's obligation to give discovery of documents, disclosure of medical reports by Doctors who have given evidence on matters relating to that evidence and the duty of the litigant and his counsel not to mislead the court. On this we sought and obtained the assistance of an amicus curiae Miss Cotton QC. Mr O'Brien submits that by one or other or all three of these routes, namely, discovery, disclosure of medical reports or the requirement not to mislead the court disclosure should have been made. Mr Blunt asserts that a true understanding of the relevant obligations leads to the opposite conclusion.

The provisions as to discovery are contained in RSC Order 24. Order 24, rule 1 provides: (White Book p 419)

"After the close of pleadings in an action begun by writ there shall, subject to and in accordance with the provisions of this Order, be discovery by the parties to the action of the documents which are or have been in their possession, custody or power relating to matters in question in the action."

Provisions as to automatic discovery are contained in rule 2 which applies to actions where pleadings are closed (except for defendants in running down actions). The obligation relates to documents "which are or have been in his possession".

Rule 3 applies to cases where there is not automatic discovery, but the court makes an order. Again the same expression is used. The form of the list or affidavit is prescribed by rule 5. The form (No 26) provides for documents which the litigant has in his possession custody or power to be listed in Schedule 1 and those which have been, but no longer are in his possession custody or power to be listed in Schedule 2.

The use of the present and past tense is not apt in my judgment to cover documents which have not yet come into existence at the time the list or affidavit is made, though it will be apt to cover documents which were then in existence but by error or oversight were omitted from the origina. I do not accept Mr O'Brien's submission that order 24 rules 2 and 3 are sufficient to cover all cases and therefore rule 1 must add something and that something is a continuing obligation to give discovery. This was the view of the Federal Court of Australia on broadly similar language in T.N.T. Management Pty. v. Ltd. v. Trade Practices Commission [1983] ATPR. In support of this conclusion Sheppherd J. cited the case of James v. Plummer [1888] 23 LJ(NC)107 which his own research had unearthed. In that case there was a claim for forfeiture for breach of covenant in a lease. An affidavit of documents was sworn by the plaintiff in 1886, but on inspection it appeared that certain documents had been omitted and an order was obtained in 1888 for a further and better affidavit. This remedied the defect up to 1886, but it was contended by the defendant that discovery should be given of documents which came into the plaintiff's possession prior to the 1888 affidavit. The Divisional Court rejected this contention. In the judgment of Manisty J. (with whom Stephen J. agreed) there is no discussion of the construction of the relevant rule. The reasoning is that "to hold otherwise would be to cast a burden of intolerable weight upon litigants and add enormously to the cost of litigation". I would point out that it seems very unlikely that any relevant documents came into existence after 1886 having regard to the nature of the action and none seem to have been specified. James v.Plummer has not been cited any text book since Bray on Discovery in 1910. It has effectively been consigned to limbo.

In support of his submission that there is a continuing obligation to give discovery Mr O'Brien relies upon a note in the Annual Practice at p420 in these terms

"Continuing obligation to give discovery: "Although one reading of O.24,r.1 may suggest that discovery need be given only of documents which have come into a party's possession before the date of his list of documents, this is not the limit of a party's obligation to give discovery imposed by the rule. The obligation is general, and requires the disclosure of all relevant documents whenever they may come into a party's possession. This requirement is supported by the linked principle that a party must not seek to take his opponent by surprise ( cf. O.18, rr. 8 and 9), and that he must not, by withholding relevant documents, mislead his opponent or the Court into believing that the statement in his list that he has given full discovery continues to be true ( Mitchell v. Darley Main Colliery Co (1884) Cab. & Ell. 215). An obvious example is where a plaintiff, who is claiming damages for prospective loss of earnings, obtains new lucrative employment during the course of the action; this fact must be communicated to the defendant and further discovery must be made (or, at all events, offered). In default, the plaintiff may be ordered to pay any costs occasioned by the failure to give discovery promptly."

This has undoubtedly been the accepted practice in the legal profession at least since this note first appeared in the 1985 edition of the White Book. It is right to say however that the authority cited in support of the note, namely Mitchell v Darley Main Colliery Co [1884] 1 Cab and E1 215 relates to a document, a diary kept by and affording contemporaneous support for the evidence of one of the principal witnesses, which had been in the possession custody or power of the defendants at the time the affidavit of documents was sworn, but had been overlooked. It was not disclosed until trial, whereupon the plaintiff's case effectively collapsed. It is not therefore authority for the proposition that after acquired (i.e. those that come into the possession of the party after discovery by list or affidavit is made) must be disclosed. But in my judgment the reasoning of Hawkins J. supports the proposition in the note at p420.

At p216 the judge said:

"Now, in my opinion, a party, who, after filing an affidavit of documents, discovers a document of which his opponent has a right to have inspection, but which is not disclosed in the schedule because it has been forgotten, or overlooked, or supposed not to exist, is bound to inform his opponent of the discovery either by a supplementary affidavit, which I think is the proper course, or at least by notice; and he has no right to keep back all knowledge of the newly-discovered document simply because he was not aware of it at the time he swore his affidavit in obedience to the order for discovery. To keep back under such circumstances a document known to be material, would, in my opinion, amount to a reprehensible want of frankness, and if, by reason of such conduct, unnecessary expense is entailed upon the party entitled to discovery, such unnecessary expense ought to be visited upon the party who ought to give it. In the present case I am satisfied the defendants and their advisers were aware of the importance and materiality of the document; that the document was one which ought to have been disclosed; that there was no justification for not disclosing it as soon as it was found; and that if it had been so disclosed, the whole of the expenses incurred by the plaintiff in his endeavour to prove that no subsidence had occurred to damage his property before the year 1882, would have been spared."

In my judgment the rule stated in the White Book is not only the practice, but the law and in so far as James v. Plummer is to a different effect it should be overruled. It is no longer relevant to modern litigation. I have reached this conclusion for a number of reasons.

First the after acquired document may alter the party's case, either for the better or worse as compared with that which is apparent from the documents hitherto disclosed. If the document is favourable to the party, late production may prejudice the other party and result in an adjournment, a belated attempt to settle the case or in the extreme example of Mitchell effectively a submission to judgment. In any event it is likely to result in unnecessary expense and waste of court time. The parties and the court should do all in their power to avoid this.

Secondly where the document is against the party, if it is not disclosed there is a risk that the other party and the court will be misled. The other party may be misled in to settling the case on terms he would not otherwise do if he had known the true facts. The court may be misled into giving judgment on a basis that is no longer correct. The point is well made by Waite J. in Birds Eye Walls Ltd. Harrison [1985] ILR 279. In the industrial tribunal there is no automatic discovery, but in that case the parties had voluntarily given discovery of documents they intended to rely upon, but the employers did not disclose a document which appeared to be contrary to their case.

At p287 Waite J. said:

"Mr Tabachnick acknowledges, however, that this greater freedom in regard to discovery in the tribunals could not be permitted to provide a front for deception or unfair surprise. So he qualified his general submission by conceding that the complete freedom of a party to decide what documents he shall or shall not disclose to his opponent is curtailed by this principle. Any disclosure that he does make must not be so selective as to surprise unfairly, or mislead, the other side. No document, that is to say, should be withheld if the effect of non-disclosure would be to alter or conceal the true meaning of any document which has been voluntarily disclosed."

And at p288:

"... any party who chooses to make voluntary discovery of any documents in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document."

Thirdly, Mr Blunt accepted that the court had inherent jurisdiction to make a further order for discovery in relation to after acquired documents. This appears to me to be inconsistent with his principal submission that there is no obligation to give discovery save in accordance with the rules. After acquired documents may well not fall within the provision of Order 24, rule 7 relating to further discovery, where the applicant for the order has to support his application by affidavit stating the belief of the deponent as to the existence of other documents in the possession or power of his opponent. It seems to me the court would only have such a power if there was an obligation on the party concerned.

Fourthly this seems to me to be explanation of the Canadian case, Lid Brokerage & Realty Co. (1977)... v. Budd & Ollins [1992] 2 WWR 453. A decision of the Saskatchewan Queen's Bench at paragraph 31 at p466 Baynton J. said:

"On the other hand, there is no Rule which precludes the Court from making such an order pursuant to its inherent jurisdiction over the conduct of a legal action. As well, the concept of the ongoing disclosure and production of relevant documents is inherent in the Rules (e.g. R.218, 235, and 236 ). Although the penalty or consequences arising from the non-disclosure of after-acquired documents may be somewhat different than those for non-disclosure of documents in possession or control at the time of disclosure under R 212, the principle of ongoing disclosure exists nonetheless. The framework of the Rules are focused primarily on the past or present possession and control of documents, and not on future possession or control. However, in this age of full disclosure and complex legal actions, the Rules requiring disclosure of documents must be interpreted in the light of the realities of current litigation practice. I agree with counsel for the plaintiffs that from a practical consideration it is more expedient, in the circumstances of this case, to order an ongoing disclosure and production of documents than to deal with applications on a successive basis."

And at p466 the judge quoted the note in the annual practice

with approval.

Fifthly, if the law is as Mr Blunt submits, it will mean in almost every case an application for discovery will have to be made immediately before trial or indeed during the trial, since a party who wished to stand on his rights would not make voluntary disclosure. The inconvenience and unnecessary additional expense and waste of time is wholly unacceptable. In very many personal injury actions the plaintiff's employment position, prospects and salary levels need to be brought up to the date of the trial. In my judgment there is no need for such an application. I understand that since the T.N.T. case the rules in Australia have been changed to provide for continuing duty of discovery.

Finally, Mr Blunt contrasted the existing Order 24 with Lord Woolf's proposed draft Civil Proceedings Rules, rule 7.12. of which provides that the duty of standard disclosure continues until the proceedings are concluded. For my part I do not regard this as a change to the existing law but a restatement.

If there is a continuing obligation to disclose after acquired documents, up till what point of time does the obligation extend? Clearly in my view it must extend up to the close of the evidence; in most cases where judgment follows shortly afterwards, this in practice will no doubt suffice. But I can see no logical reason to take that as a cut off point rather than the conclusion of the proceedings, as expressly provided in Lord Woolf's draft rules. If the party to whom discovery of the after acquired document is disclosed has closed his case, or the evidence as a whole is concluded, he will have to obtain the leave of the judge to recall relevant witnesses or to reopen the case. Recalling witnesses does not usually present a serious problem. An application to reopen the case in the light of the disclosure is unlikely to be entertained unless the document is of real significance and there is otherwise a risk of injustice. An unwarranted application is likely to be visited with an order for costs.

It seems to me to be immaterial how the further discovery is made, whether by a further formal list or simply by letter. This will probably depend on the amount of documents involved. Moreover I do not think the existence of documents that are clearly privileged need be disclosed. But this is subject to questions of disclosure of experts' reports to which I refer later.

In my judgment the existence of Mr Mackay's and Dr Lloyd's reports of October/November 1994, the notes of evidence and the judgment of Judge McNaught should have been disclosed to the defendant's advisers before Sedley J. gave judgment.

Mr Blunt submits that the reports of Mr Mackay and Dr Lloyd are subject to litigation privilege. I do not agree. These were reports obtained from experts in Childrens Act Proceedings and such reports are not privileged. Re L (a Minor) (Police Investigation Privilege ) [1996] 2 W.L.R. 395. The ratio decidendi of that case is not confined to wardship and care proceedings.

A document which does not attract legal professional privilege, does not do so simply because, if it had been brought into existence in other circumstances, it would have done so. Nor does a document not entitled to privilege become privileged merely because it is handed to a solicitor for the purposes of litigation. Ventouris v. Mountain. The Italia Express [1991] 3 All ER 472 C.A.

This rule provides:

"(1) Notwithstanding any rule of court to the contrary, no document, other than a record of an order, held by the Court and relating to proceedings to which this part applies shall be disclosed, other than to (persons which do not include the Defendant) without the leave of the judge or district judge."

This rule could not in my view prevent the disclosure of the existence of the relevant documents in this case; but it would prevent disclosure of their contents without leave. This would have applied to all the documents with which we are concerned including the judgment of Judge McNaught, but not that of the Court of Appeal in the family proceedings, since judgment was given in open court. But had the defendant's advisers been alerted to the existence of the documents they could have applied for leave to Judge McNaught, who it appears to me would readily have granted it, or to the Court of Appeal after the appeal hearing.

Order 25, rule 8 provides for automatic directions in personal injury actions. Where a party intends to place reliance at trial on expert evidence, he shall, within the appropriate time disclose the substance of that evidence to other parties in the form of a written report, which must be agreed if possible. Rule 8(1)(b)(i). If the reports are not agreed, the party can call the witness whose evidence has been so disclosed, but there is a limit of two medical experts. Rule 8(1)c.

Order 38, rules 36 and 37 also applied in this case. The former provides that except by leave of the court or by agreement no expert evidence may be adduced in evidence unless the party seeking to adduce it has applied for directions under Order 38, rule 37 and complied with the direction or has complied with Order 25, rule 8(1)b. Where an application is made under Order 38, rule 36(i) then, unless the court for special reasons otherwise orders, it shall direct that the substance of the evidence be disclosed in the form of reports. (rule 37(i).

Mr Mackay's and Dr Lloyd's 1993 reports in the personal injury litigation were exchanged pursuant to these provisions. Their reports in the Family proceedings relating to Mrs Vernon's ouster application were also disclosed. I have no doubt that if reports to the same effect as those furnished in October/November 1994 had been in the possession of the plaintiff before they gave evidence they would have to have been disclosed or else the witnesses could not have been called. This is because it affected and related to the evidence that they were proposing to give. I do not understand Derby & Co. Ltd. v. Weldon No.9 [1990] TLR Nov 9th to be contrary to this proposition. In that case it was held that a party was not required to give disclosure of an expert's evidence upon matters which it is not proposed to call him to give evidence.

If a doctor whom it is proposed to call to give evidence relating to the plaintiff's expectation of life, writes in any accompanying letter or subsequently that he has discovered that the plaintiff is suffering from a life threatening disease unrelated to the accident, that letter must clearly be disclosed, if the doctor is to be called to give evidence on the question of expectation of life.

But I do not think these rules can be prayed in aid after the witness has given evidence. Rather it is to the principle that the court or opponent must not be misled that we must look.

It is the duty of every litigant not to mislead the court or his opponent. He may do so not only by giving evidence that he knows to be untrue, but by leading the court to believe that a certain state of affairs, which he once believed to be true, is now known no longer so. This duty continues in my opinion until the judge has given judgment. An analogy can be drawn with the law relating to misrepresentation. A representation which induces a contract which is true at the time it is made, but is subsequently known by the representor to be false before the contract is entered into is a misrepresentation. With v. O'Flanagan [1936] 1 Ch. 575.

Moreover in my view the litigant does not discharge this duty simply by accepting the advice of his legal advisers. He can no doubt rely upon such advice as negativing any mens rea, so that he would not be guilty of the criminal offence of attempting to pervert the course of justice. But if the advice is incorrect, he is responsible for it vis-a-vis the other party to the civil litigation. This is the general rule where legal advisers are acting within the scope of their actual or ostensible authority.

In this case it is plain from the written submissions on general damages made to Sedley J. by the plaintiff's counsel that they placed reliance on the evidence of both Mr Mackay and Dr Lloyd as to his current condition and prognosis and also on the description of the plaintiff given by Mr Moxham, which I have already cited from the judge's judgment. Yet at the time these submissions were made Mr Vernon knew this description did not represent the true position. And shortly afterwards his legal advisers knew the same. Unless the altered position was communicated to the judge there was clearly a risk that he would give judgment on a basis that was no longer true. And in my view that is exactly what happened.

Mr Blunt sought to rely on the distinction between actively misleading and passively standing by and watching the court be misled. This distinction was made in Saif Ali v. Sydney Mitchell & Co [1980] 1 A.C. 198. The case concerned a barrister's duty, but the same principles apply to the litigant. At p220A Lord Diplock said:

"A barrister must not wilfully mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister's knowledge."

In Tombling v. Universal Bulb Co . [1951] 2 T.L.R. 289 at p297 Denning LJ said:

"The duty of counsel to his client in a civil case - or in defending an accused person - is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court, either on the facts or on the law, but, short of that, he may put such matters in evidence or omit such others as in his discretion he thinks will be most to the advantage of his client. So also, when it appears to him to help his client towards winning his case. The reason is because he is not the judge of the credibility of the witnesses or of the validity of the arguments. He is only the advocate employed by the client to speak for him and present his case, and he must do it to the best of his ability, without making himself the judge of its correctness, but only of its honesty."

The classic examples of the distinction is the case where the barrister knows that his client has previous convictions, but the court and prosecution do not. He is not under an obligation to disclose the convictions, but he must not suggest that his client is a man of good character. Similarly there may be several witnesses who can speak as to a certain matter of fact. Some may support one side, the others the opposite case. Neither the litigant nor his lawyers are bound to call in a civil case those witnesses who do not support their case.

But where the case has been conducted on the basis of certain material facts which are an essential part of the party's case, in this case the plaintiff's condition at trial and the prognosis, which were discovered before judgment to be significantly different, the court is not being misled by the failure of the defendant to put before it material of which she could or should have been aware, but by the failure of the plaintiff and his advisers to correct an incorrect appreciation which the court will otherwise have as a result of their conduct of this case hitherto. This can be illustrated by the case of Meek v. Flemming [1961] 2 Q.B. 366. Throughout the trial the defendant, a police officer, appeared in plain clothes and was addressed by his counsel as "Mr". In the ordinary way no possible objection could be taken to this; but what was known to the defence, but not known to the plaintiff or the court was that between the cause of action arising and trial, the defendant had been demoted to Sergeant from Chief Inspector for being a party to an arrangement to practice a deception in a court of law in the course of his duty as a senior police officer. Although the matter only went to credit, the Court of Appeal ordered a retrial. The court had been misled because it was likely to have the impression, and indeed obviously did have the impression, that the defendant was still a chief-inspector.

Where there is a danger that the court will be misled, it is the duty of counsel to advise his client that disclosure should be made. There is no reason to suppose that if Mr Vernon had been so advised in this case, he would not have accepted that advice. If the client refuses to accept the advice, then it is not as a rule for counsel to make the disclosure himself; but he can no longer continue to act. In the unlikely event that Mr Vernon did not accept the advice, then the non-appearance of counsel and solicitors before Sedley J. on 31 Jan and 10 May 1995 would immediately have alerted the defendant's advisers, if not also the judge, that something was afoot. I have no doubt Mr O'Brien would have smelt a rat.

In this case the position is complicated, at any rate so far as the proceedings before Judge McNaught are concerned by rule 4.23 of the Family Proceedings Rules. But counsel's advice should in my view have included advice to Mr Vernon to seek the judge's leave to disclose the relevant evidence.

Here again Mr Blunt sought to draw the distinction between not disclosing that which he asserted (wrongly in my view) he had no duty to disclose and actively misleading the court. But in attempting so to do, counsel were walking a tight-rope and in my judgment did not succeed in staying on it. As I have already pointed out counsel sought to uphold the judge's award of £67,000 for future occupational therapy on the basis of Mrs Waterman's assessment of the plaintiff's condition, which was similar to that of Mr Moxham, and his needs coupled with the Mackay/Lloyd prognosis. The latter was critical to the justification of a multiplier of 13.

Similarly so far as future domestic care and cost of gardening is concerned counsel sought to justify the judges award of £41,000 and £3,900 on the basis of the judge's finding as to the plaintiff's present condition, as exemplified by Mr Moxham's description which was accepted by the judge, coupled with the Mackay/Lloyd prognosis. Here again the prognosis was essential in justifying a multiplier of 13 which the judge took.

In relation to future loss of earnings I consider we were misled into thinking on the basis of the judge's findings that the plaintiff was unemployable in the future. Although there might have been argument, as there had been in the recent hearing, as to the effect the new evidence should have on his loss of earnings claim, it seems to me unarguable that it might well have some effect. And for the reasons I have given, it has.

I readily accept that plaintiff's counsel did not deliberately intend to deceive the court and believed that the advice they gave Mr Vernon was sound. But in my judgment they made a serious error of judgment in failing to advise him on the need for disclosure. By an over-technical construction of the rules and a failure to appreciate that their previous conduct of the case would result in the court reaching an unjust result unless disclosure was made, they found themselves in an impossible position. By the time the case came to this court they should have appreciated that they could no longer seek to uphold the judge's judgment on the four heads of future loss to which I have referred. I think it is unfortunate that counsel did not appreciate what appears to have been apparent to Mrs Vernon, Judge McNaught and apparently the plaintiff's own solicitor Mr Bretton, until he was advised otherwise by counsel (see his affidavit of 18 November 1994 paragraph 14). It is also unfortunate that when, towards the close of the argument before us in February 1996, Mr O'Brien, who by then had some suspicion but no tangible evidence of what had happened, applied for further discovery, we were told by plaintiff's counsel that the defendant was on a fishing expedition and had not properly laid the foundation for further discovery, with the result that this court summarily dismissed Mr O'Brien's application.

I would allow the further appeal and reduce the quantum of damages.

LORD JUSTICE EVANS: Because this will be a dissenting judgment, I begin with a summary of the conclusions I have reached.

(1) I share the indignation which my Lords express at the conduct of the plaintiff and his expert witnesses in the Family Court proceedings, but I do not believe that it should have for these proceedings the consequences which they propose.

(2) This is not a case where the plaintiff or the expert witnesses called on his behalf gave evidence which was incorrect or expressed opinions which were unjustified at the time when their evidence was given. To suggest that he or they have "changed their evidence" is not accurate.

(3) The further evidence which the expert witnesses gave before us in November 1996 was not such as to destroy the basic assumptions upon which their evidence was based when it was given in April 1994. That is an appropriate test for the admission of fresh evidence for the purposes of an appeal : Mulholland v. Mitchell [1971] A.C. 666. Their prognosis at the trial was accepted then by the defendants and their expert witnesses. As the judge put it, the demands of consistency prevented the defendants from challenging it. The same restraints would have continued to operate if further evidence had been permitted before judgment was given, and in my view they continue to operate now.

(4) The case and the appeal should be decided on the evidence given at the trial, save in exceptional circumstances which do not arise here (Mulholland, above). Therefore, I do not agree that any duty of disclosure continued after the close of evidence at the trial. The judge gave his judgment on the basis of the evidence given at the trial, and this court was equally concerned to decide whether his judgment was correct by reference to the evidence that was given.

(5) Neither the judge nor this court was under any illusion that he unchallenged prognosis given by the plaintiff's expert witnesses in April 1994 might already have proved to have been unduly pessimistic by the time when judgment was given, or when the appeal was heard, just as it might have been over-optimistic, in which case the defendant's representatives would certainly have objected to further evidence being introduced by the plaintiff.

(6) The fact of the plaintiff's recovery has to be distinguished from the irresponsibility shown by two of his expert witnesses, in subsequently expressing views in the family proceedings which are not easy to reconcile with their evidence in this case, whether given in April 1994 or November 1996. If the fact of improvement stood alone, I doubt whether the judge, if he had been asked, or this court, would have contemplated allowing either party to open up this issue after the original hearing. Unfortunately, the judge was already aware that the expert evidence did not achieve that standard of independence which should have characterised it. He found that the expert witnesses were parti pris , the plaintiff's and the defendant's alike.

(7) Counsel for the plaintiff were correct to advise that there was no obligation to disclose the documents in question in these proceedings, at the time when they were received by the plaintiff and by them. Moreover, the documents did not lose their privileged status in these proceedings by reason of the confidentiality given to them by statute for the purposes of the family proceedings, in which the defendant and her representatives had and have no interest.

(8) Counsel for the plaintiff did not, in my judgment, either mislead the court or act improperly in any way. The consequences of holding that they did seem to me to go far beyond the confines of the present case, particularly with regard to views expressed by expert witnesses after their evidence has been given.

(9) Certain documents were sent anonymously to leading counsel for the defendants, in breach of statutory confidence and apparently in contempt of court. I am concerned that, so far as I am aware, no steps have been taken to discover who the sender was.

(10) This case already deserved a place in the history books or in some legal museum as an example of how costs and the length of proceedings can get entirely out of hand. Now we have a pendant to the appeal hearing, which was thought to be concluded by our judgments handed down on 29 March, and a useful reminder that interest rei publicae ut sit finis litium : it is in the public interest that proceedings should be brought to a timely end.

Sedley J. assessed general damages, including future loss of earnings and future costs of professional (occupational therapy) and domestic help, by reference to the evidence which he heard between January and July 1994. After speeches in October 1994 he handed down his judgment in January 1995.

The amounts of damages awarded under the heads referred to above all depended on his assessment of the plaintiff's mental condition during the trial. The plaintiff gave evidence over a period of 30 days. He did so in a manner which left the judge in no doubt, but that he was suffering from mental illness at that time. It "could not possibly have been feigned". Eventually, and belatedly in view of their own experts' views, the defendants admitted this, whilst maintaining their contention both at trial and before this court that witnessing the accident in 1982, alone of all the stressful incidents which the plaintiff had experienced throughout his life, had not caused or contributed to his illness in any way.

The evidence also included the opinions of two of the plaintiff's expert witnesses. They were Dr Lloyd, a consultant psychiatrist who had been treating him since 1991 and was continuing to do so, and Mr Mackay, a consultant psychologist who saw him regularly until the beginning of the trial and had arranged to see him again when it was over. Both gave evidence shortly after the Easter vacation in April 1994, and both had had telephone conversations with the plaintiff during that vacation which caused them some alarm as to his mental state. They said that it had improved significantly since the previous September, 1993, and it was too soon to say whether the apparent relapse over Easter marked the ending of this improvement or was no more than a temporary setback.

Their evidence on this aspect of the case was not challenged by the defendants. Their expert witnesses, both of them highly qualified consultant psychiatrists, were in court for much of the plaintiff's evidence. Both produced supplementary reports which laid stress on the impression which the plaintiff had created on them whilst giving his evidence and when they had seen him at other times at the court. Dr Gaind on 21 March and Dr Swan as late as 26 June said that this had confirmed their views that he was not suffering from any mental illness or, if he was, that it was due to a personality disorder which had affected him since his schooldays. Neither suggested that he would recover from that condition, and no evidence was directed to the question whether he might or could do so, or not. Nor did they say that if he was suffering from depression, that condition would or might improve either in the short or the long term. So it is not surprising that the Dr Lloyd and Mr Mackay were not challenged in cross-examination in this respect : counsel for the defendants had no basis for doing so. It would not have been easy for the defendants to suggest that the prognosis was better than the witnesses said. As the judge put it, as regards prognosis "the defendant's answer is dictated by the demands of consistency".

It followed that when the judge came to assess general damages and damages for future loss, he did so on the basis that the plaintiff's current mental state, meaning that which he observed for himself between January and October 1994 and which was examined in enormous detail during the evidence of all the expert witnesses, would continue as a mental illness in the way described by Dr Lloyd and Mr Mackay. He recognised that it might improve and he made some allowance for this factor in his award.

It was obvious to all concerned, including the judge himself, that the figures which he assessed in January 1995 were based in part on the prognosis given by expert witnesses more than nine months before the date of his judgment.

It is now known that a dramatic improvement in the plaintiff's condition did take place soon after he and his witnesses had given evidence. This was apparent to his wife, from whom he was separated, because she made an application in matrimonial proceedings on that basis in June 1994. It was not noticed, however, or was not considered significant by the defendant's expert witnesses, who must have continued to observe him closely until they completed their evidence in July.

Then in October the solicitors acting for the plaintiff in the matrimonial proceedings asked Dr Lloyd and Mr Mackay to prepare further reports on his mental condition which they hoped would support his application for custody of his three children, which was opposed by his wife. Dr Lloyd's report was produced in those proceedings before H.H. Judge McNaught and he gave evidence in November. Mr Mackay's report was sent to the wife's solicitors and to the court without the plaintiff's express authority. It was highly favourable to the plaintiff's application. Mr Mackay returned from an overseas visit and said that it had been intended as a draft only. The plaintiff attempted to recover it but Judge McNaught ruled that it should form part of the evidence and that Mr Mackay should give evidence. This ruling was entirely consistent with the court's duty to put the interests of the children above all other considerations. Mr Mackay meanwhile produced a revised report and in due course he too gave evidence.

What I will call the October 1994 reports by Dr Lloyd and Mr Mackay were given by the plaintiff to the solicitors acting for him in these civil proceedings. Strenuous efforts were made to ensure that the defendant in this action, or rather the solicitors acting on her behalf on the instructions of her insurers, remained unaware that they had been made and did not receive copies of them. The plaintiff's solicitors were concerned lest the insurers would learn of the reports, and the fact that subsequently a copy of Judge McNaught's judgment was sent surreptitiously and in breach of confidence to Mr O'Brien Q.C., leading counsel for the defendants, is some confirmation that their concern was justified.

Meanwhile, Mr David Blunt Q.C. leading counsel for the plaintiff considered whether the plaintiff or his representatives were bound to disclose the October reports to the defendants in those proceedings. He and Mr Marks Q.C. (then junior counsel) advised that they were not, and no one suggests that their advice was not anxiously considered and conscientiously given. Mr O'Brien Q.C. however submits that they were wrong.

The appeal hearing took place over 12 days in January/February 1996. At that time we were aware that proceedings had taken place, or were taking place, in the Family Court and that the plaintiff was putting himself forward as being in sufficiently good health to have custody of his children ; in other words, that in his own eyes at least he had made a good enough recovery from his 1994 condition to justify such a claim.

On 29 March 1996 we handed down our judgments which by a majority upheld the judge's finding on liability but unanimously reduced the damages to about half the judge's figure.

There was no appeal against the general damages award of £37,500. The defendants therefore took no issue with regard to the judge's findings that the plaintiff was suffering from mental illness at the time of the trial and that the prognosis was as the judge held it to be, in accordance with the unchallenged evidence as to what the April 1994 prognosis was. Opening the appeal, Mr O'Brien told us that it was conceded before Sedley J. that the plaintiff was suffering from depression as a form of mental illness at the time of the trial. This concession is not mentioned in the judgment of Sedley J. although it was in line with the findings he made. The case which Mr 0'Brien put to Dr Lloyd and Mr Mackay in cross-examination before us was inconsistent with that concession, and by a late amendment to the Notice of Appeal he sought leave to withdraw it for the purposes of the present application.

It is unnecessary to relate in detail the tortuous history of the defendants' application which eventually came before us on 22 October 1996. The defendant and his representatives, at first reluctant, agreed that leave should be sought from Judge McNaught to produce to the defendant's representatives copies of the papers in the matrimonial proceedings, including his judgment, which they already illicitly had. The defendant's representative then applied in these proceedings for leave to introduce the October reports, the evidence given by Dr Lloyd and Mr Mackay and Judge McNaught's judgment as further evidence in the appeal, under the Civil Evidence Act 1968. The application was made in this form, surprisingly, so that the court should not be made aware of the current (1996) situation, apparently because Mr O'Brien anticipated that that might be less favourable to the defendant than the situation disclosed by the reports in October/November 1994.

For my part, I had no hesitation in rejecting the application to adduce the 1994/5 documents as further evidence in the appeal. If further evidence was justified, it was to enable the court to know the up-to-date situation and to hear the witnesses' explanations of any differences in their evidence that had appeared.

What became the defendants' alternative application was that the witnesses should be recalled for further cross-examination so that they could be asked about their later evidence and reports. This was granted on November 1. There was no application to amend or add to the Notice of Appeal and we did not know then what the defendants' submissions would be, except that they would invite us to reject the witnesses' evidence given at the trial, as regards prognosis at least. There was and is no suggestion that the defendant's own expert witnesses are now able to support an attack on the evidence which the plaintiff's witnesses gave at the trial.

In these circumstances, I for my part would have rejected the alternative application also, if it was not for two factors. First, the public interest which exists when expert witnesses are involved. Briefly, I consider that expert witnesses, just as they have responsibilities to the court, should also have an opportunity to explain, and be required to explain, their evidence if subsequently the kind of criticism which is made by the defendant's representatives is levelled against them in the course of an appeal. Secondly, I agree with Thorpe L.J. that the conduct of the parties is relevant to such an application (per Russell L.J. in Hughes v. Singh 13 April 1989) and that the plaintiff's conduct required investigation here.

Dr Lloyd and Mr Mackay were recalled for further cross-examination, and this took place over two full days on 5-6 November. The hearing was followed by submissions as to the correctness or otherwise of Mr Blunt's advice that the October 1994 reports should not then be disclosed. We received very great assistance in this issue from Miss Diana Cotton Q.C as amicus curae, instructed on behalf of the Attorney-General.

The purpose of the further hearing, therefore, was to enable Dr Mackay and Dr Lloyd to be cross-examined with regard to their April 1994 prognosis, on which the judge acted, and as to the current prognosis in November 1996. Their reports and evidence in October/November 1994 were relevant to this, but only in two ways. First, the plaintiff's condition at that time formed part of the history of the development of his illness during the period since April 1994. Secondly, if and to the extent that the witnesses were able to express opinions to Judge McNaught which were more favourable to the plaintiff than the evidence which they gave to Sedley J. and now to us for the purposes of the damages claim, and were inconsistent with that evidence, then questions must arise as to their objectivity and reliability as expert witnesses.

Apart from this indirect relevance, there is no separate issue in these proceedings as to the state of the plaintiff's health in October/November 1994. For the purposes of the question whether the October 1994 reports should have been disclosed to the defendant's representatives when they came into the hands of the plaintiff and his solicitors, sometime early in November 1994, it is the contents of the reports which are relevant, rather than his actual state of health, because the allegation is that the reports should have been disclosed. There is no suggestion that his legal representatives knew what evidence the witnesses gave, or what the terms of Judge McNaught's judgment were, until after Sedley J. gave judgment and possibly (we have not been told this) until after the hearing of the appeal.

The defendant's representatives also allege that the plaintiff himself was personally at fault in failing to disclose the reports to them in October/November 1994, and presumably later the evidence and the judgment also. This must mean that they contend that he should have applied to Judge McNaught for leave to make the disclosure, for without such leave the confidence of the matrimonial proceedings was protected by statute. In the event, Mr O'Brien attacked on a broad front, and he contended that the plaintiff and his legal representatives were all at fault in failing to disclose not only the October 1994 reports but also the fact of his improved condition and the evidence which was given to Judge McNaught and the resulting judgment.

I would say at the outset that, since the plaintiff did seek and obtain advice at least with regard to the reports from leading and junior counsel, and acted on that advice, the attack against him personally is groundless and should fail. Moreover, since he has not had an opportunity to answer the charges, the defendant's representatives having opposed his application to be recalled as a witness, I would hold that the charges against him should be rejected on that ground also.

The central allegation made against counsel, therefore, is that the October 1994 Reports should have been disclosed to the defendants before Sedley J. gave judgment in January 1995. If they were under any duty to do so, then the duty was broken in November 1994 and the breach continued until after the appeal hearing in January/February 1996. If there was no breach of duty, then a separate question arises as to the plaintiff's counsel's conduct of the appeal hearing itself, for the further allegation is made that counsel presented the plaintiff's case as respondent in a way which misled the court and was in breach of the Rules of Conduct of the Bar.

These are serious charges, and for my part I think it is regrettable that they have not been formulated except in general terms in various skeleton arguments by counsel for the defendants and in Mr O'Brien's oral submissions. It is right to add, however, that Mr Blunt was content to answer the charges in the same general terms as they were made, and like Mr O'Brien's his submissions concentrated on the question whether the October 1994 reports should have been disclosed during the following month.

The grounds on which it is said that they should have been disclosed are three. First, because the plaintiff was under a specific duty to do so, under R.S.C. Order 24, rule 1. Secondly, because the reports constituted further evidence by expert witnesses, which were not privileged from disclosure or production in the present case, since they were made for the purpose of the family proceedings; even if they were privileged, their existence should have been disclosed so that the defendants could apply to that court for them to be produced. Thirdly, because the plaintiff's representatives thereafter conducted the case in such a way as to mislead the court, by continuing to rely on the evidence which was given at the trial without reference to the subsequent improvement in the plaintiff's mental health, as reflected in the October 1994 reports.

(1) Discovery

Order 24, rule 1 reads as follows :-

"(1) After the close of pleadings in an action begun by writ there shall, subject to and in accordance with the provisions of this Order, be discovery by the parties to the action of the documents which are or have been in their possession, custody or power relating to matters in question in the action."

The following provisions of Order 24 include rule 2(1), which requires the parties to an action to exchange lists of documents within 14 days after the close of pleadings : rule 2(2), which exempts the defendant to any accident on land arising out of a vehicular collision from giving "automatic" discovery under rule 2(1); rule 3, which gives the court power to order "any party to a cause or matter (whether begun by writ, originating summons or otherwise)" to make a list or affidavit of documents "which are or have been in his possession, custody or power"; rule 5, which specifies the form the list must take; and rule 7, which entitles the court to "make an affidavit stating whether any document... [etc.] is, or has at any time been, in his possession... [etc.]"

Rule 1(1) is in general terms but, as it is expressly made subject to the following provisions of the Order, the duty to give discovery imposed by it is performed in a number of specific ways, so that for example lists must be served within 14 days after close of pleadings by the parties to an action. The different rules all speak of documents which "are or have been" in the possession etc. of the party who is under a duty to disclose them.

Essentially, Mr O'Brien makes two submissions. First, that rule 1(1) gives rise to a continuing duty which is independent of the particular examples of it in the following rules ; and secondly, that rule 1(1) itself obliges the party to disclose after-acquired documents, meaning any which come into existence or which come into its possession etc. for the first time after initial discovery takes place.

The second submission in my judgment turns the wording of rule 1(1) upon its head. I do not understand how "are" can mean "will be" even if, as I think is submitted, "have been" means "are". Nor do I see how a party can list or disclose documents which are not but will be in its possession at some future date. This submission was rejected by the Federal Court of Australia in T.N.T. Management Pty Ltd. v. Trade Practices Commission 1983 Aus. T.P. Reports 44382 and I respectfully agree.

The first submission, that rule 1(1) imposes a continuing duty, is more substantial. It is supported by a note in the current (1997) Annual Practice and which first appeared there, we were told, in 1985. The note cites Mitchell v. Darley Main Colliery Co. (1884) Cab. & Ell.215 as authority that "The obligation is general and requires the disclosure of all relevant documents whenever they may come into a party's possession" (A.P. 24/1/2).

Another early authority, however, is to the contrary effect and it probably was not known to the learned editors of the White Book. This is James v. Plummer (1888) 23 L.J. (N.C.) 107 which was discovered after diligent research by the judges in the T.N.T. case (see page 44,388 of the report) and upon which they relied when rejecting the submission now made before us.

In my judgment, Mitchell v. Darley Main Colliery Co . is authority only for the proposition that when a list (or affidavit) of documents is discovered subsequently to have been wrong or incomplete, because it failed to include a document which either was or had been in the party's possession etc. when the list was made, then the party comes under a duty to correct the list as soon as the (pre-existing) document comes to light.

James v. Plummer , on the other hand, is clear authority that there is no duty to give discovery of documents first acquired after the date of the affidavit or list. The rule then in force was O.XXXI which did not include the general obligation now found in Order 24, rule 1. The Federal Court of Australia approved in this judgment in T.N.T. and I would hold that it is correct.

The question remains, however, whether a continuing obligation is imposed by rule 1(1), which was introduced in 1962. If there is such a duty, the rules do not provide when or how the duty is to be performed. Does a fresh list have to be served on the other party whenever an after-acquired document comes into its hands, even a privileged document, the existence of which has to be disclosed? Or is the party required to up-date the list or lists which it has served, pursuant to the other rules of Order 24, at a specific time or times thereafter - perhaps at the beginning of the trial? It is not easy to give practical answers to these questions and they lead to another significant query : for how long does the duty continue. Until the close of evidence? Until judgment? Until final judgement after one or more appeals? Mr O'Brien was constrained to submit that the duty terminates on judgment but revives if notice of appeal is given and then continues until judgment by the Court of Appeal, and similarly in the event of an appeal to the House of Lords.

I would reject this extreme and in my view unrealistic submission. I doubt whether it has been suggested before that the duty of disclosure continues after judgment is given at the conclusion of the trial. More difficult is the question whether there is a duty which continues until that time.

The note in the Annual Practice is some indication that it is the current practice to recognise such an obligation, although Mr Blunt Q.C. and Miss Cotton Q.C. queried whether this is so. They were both inclined to accept, as I understood them, that it may well be the practice to produce after-acquired documents to the other party, except where privilege is claimed e.g. for reports or further reports obtained from expert witnesses, but this is largely for reasons of self-interest. Either the document assists the party's case, and he will be eager to produce and rely on it, or it will make it difficult for him to give truthful evidence without revealing its existence. Moreover, there are particular circumstances, such as when the plaintiff's Schedule of Special Damage is served on the defendant, or when pleadings are amended, in which the need for a further list would be recognised. And the court has power at all times to order a party to make a further list, either generally under rule 3 or of specified documents under rule 7.

The current situation, in my judgment, is that the parties to all forms of civil proceedings should recognise a duty to disclose after-acquired documents (in the sense indicated above : documents which come into existence or are first acquired after a list or affidavit has been served) which are relevant to an issue in the proceedings and which are not privileged for the purposes of the discovery rules. This duty is correlative to the court's power to order a further list or lists under rule 3 and only in this sense is it a continuing duty under rule 1. It does not require the service of a further list or any particular formality, because the essence of the duty is that relevant documents shall not be withheld, whether or not the party intends to introduce them at the trial (cf. the duty not to take the opposing party by surprise at the trial (Order 18, rules 8 and 9), as the Note points out). This is consistent, in my view, with current views as to the need to reduce costs and delay and to increase efficiency in civil proceedings, and with the decisions of the Canadian courts in the Ontario Bean (1982) 27 C.P.C. 1 and Lid Brokerage [1927] 2 W.W.R. 453 cases.

I therefore would broadly endorse the conclusions drawn by Paul Matthews in his article Ongoing discovery in English Law 1994 N.L.J. 327 following the Canadian and Australian judgments and the re-discovery of James v. Plummer . Order 24 does not in terms impose a continuing duty of disclosure, but the court has power to make successive orders for discovery and in the exercise of its inherent jurisdiction can order the future disclosure of after-acquired documents. I also agree with him that the precise nature of the continuing obligation can best be formulated by amendment to the rules. I would go further than him, however, in one respect. When the issue is whether a particular document should have been produced to the other party before trial, the court can and should hold that the failure was in breach of duty, assuming that the document is relevant to an issue and is not privileged, for the reasons which I have given above.

The next question is for how long the party remains under this duty. Putting to one side the defendants' submission that it revives even after judgment in the event of an appeal, there seem to be three possibilities - (1) the close of evidence at, or perhaps the beginning of, the trial, (2) the completion of closing addresses, which marks the end of the proceedings before the judge, and (3) when judgment is delivered.

I would reject (2), because the function of closing speeches is to assist the judge in reaching his conclusions of fact and law on the evidence which has been given. In principle, it seems to me, the duty ought to continue at least until the close of evidence. The question, therefore, is whether it continues thereafter until judgment is given.

I would hold, subject to one qualification which affects the party's representatives rather than himself, that no such duty continues after the evidence has closed. The reason essentially is one of principle. The trial process which is adversarial under our rules and traditions of procedure centres upon the evidence given at the trial itself. Only in special circumstances can evidence be given before the trial. Only in limited circumstances can a party add to, qualify or even contradict the evidence which has been given, after it has closed its case, and never without leave from the judge. When it is sought to introduce further evidence for the purposes of an appeal, the underlying principle is interest rea publicae. This subject only to limited exceptions : the well known three conditions in Ladd v. Marshall [1954] 1 WLR 1489 when the evidence existed at the time of the trial, and only in "exceptional" circumstances when it has come into existence since the trial ( Mulholland v. Mitchell [1971] A.C. 666).

These are various practical applications, in my view, of a general principle that the judge decides the case on the evidence given at the trial. Both parties have the opportunity then to place their evidence before him, and only in special circumstances are they permitted to add to it after the stage commonly referred as the close of evidence has been reached. A general duty of disclosure continuing after that stage would be inconsistent with that general rule. One example will suffice. If the duty existed, it would extend to all relevant documents, even those which were of such trivial importance or marginal relevance that they could never be introduced in evidence, because the judge's leave would never be obtained.

The qualification I have referred to above is the duty not to mislead the court. This is the further ground which I shall consider separately below.

As regards discovery, therefore, I would hold that there is a duty to disclose relevant after-acquired documents, which continues until the close of evidence at the trial. It is not a duty to produce further lists or to disclose the existence of privileged documents, unless so ordered by the court under the specific provisions of Order 24.

It may also be relevant (to the question whether there was a breach of the plaintiff's discovery obligations) that the defendant was under no obligation to give automatic discovery in the present case : Order 24, rule 2(2) so provides. If the plaintiff's duty was as extensive and continued for as long as the defendant now submits, even as regards experts' reports, it would produce a singularly one-sided and inequitable result.

(2) Further reports by expert witnesses

Independently of the rules regarding discovery of documents, Order 25, rule 8(1)(b) and Order 38, rules 36 and 37 regulate the calling of expert witnesses at the trial. The former requires advance disclosure of the substance of expert evidence upon which the party "intends to place reliance at the trial". This applies only to personal injury actions, where it is one of the automatic directions which take effect at the close of pleadings. Order 38, rule 37 contains a similar provision for advance disclosure of the substance of expert evidence, which may be ordered in all cases, and rule 36 prevents the parties from adducing expert evidence "at the trial or hearing" where advance disclosure has not been made.

In his valuable summary of the duties of expert witnesses in the Ikarian Reefer [1993] 2 Ll.R. 68 at 81, subsequently approved by this court [1995] 1 Ll.R. 455 at 496, Cresswell J. included "6. if, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court".

These rules of practice, including the rules referred to above, are concerned solely, in my view, with the run-up to the expert witness' evidence at the trial. The reasons for them are practical and obvious. They are unrelated to any duty to disclose documents and in my judgment they do not give rise to any duty which continues after the witness' evidence has been given.

It must often happen that after giving evidence a plaintiff's expert witness at least modifies some of the views he has expressed to the judge, for any number of possible reasons. The result in practice is that if he informs the party's representatives, which he may not always do, then any document in which he does so is prima facie privileged from disclosure. In consequence, however, the defendant's expert witness is not cross-examined on the matters in question. This absence of cross-examination is likely to be noticed and commented on, and acted upon by the judge. I have never heard it suggested that counsel or the witness himself is under a duty to inform the judge expressly of what his changed views are, and in my judgment no such duty exists. This again, however, is subject to the overriding duty not to mislead the court, to which I shall come below.

I therefore would reject the submission that because Mr Mackay and Dr Lloyd were expert witnesses there was some additional duty to disclose their October 1994 reports.

It is convenient to deal at this stage with the question whether the October 1994 reports were privileged from production in these proceedings when they came into the hands of the plaintiff and of the solicitors and counsel instructed by him in these proceedings.

Because they were prepared for the purposes of the Childrens Act proceedings they were subject to the statutory requirement of confidentiality under rule 4.23 of the Family Proceedings Rules 1991. This confidence could not be broken without leave from the judge of the Family Court. The House of Lords held in In re L (A minor ) [1996] 2 W.L.R. 395 that such reports being prepared for non-adversarial family proceedings are not subject to litigation privilege. So, it is submitted, they were not privileged documents for the purposes of discovery in the present civil proceedings.

I find this a strange argument. The reports would have been privileged documents if they had been made for the purposes of these proceedings. The purpose of rule 4.23 is to ensure the confidentiality of the family proceedings in the interests of the children whose welfare was at stake. It seems anomalous that the rule should have the indirect effect of obliging the plaintiff to produce in these proceedings, nominally to the defendant but in practice to her insurers and her legal representatives instructed by them, what he would otherwise be entitled to withhold from them. They have no conceivable interest in the welfare of the children, and the result would be not merely anomalous but also unjust.

In my judgment, the correct analysis is as follows. When the reports came into existence and were received by the plaintiff, he was obliged by rule 4.23 not to disclose them except for the purposes of the family proceedings, without leave from the family judge. Strictly, he should not have given copies to the solicitors and counsel acting for him in these proceedings, as distinct from his legal representatives in the family proceedings (see rule 4.23(b)). But he clearly was entitled to obtain advice as to whether or not they were privileged in these proceedings, and the good sense of asking for advice frcm his legal representatives in these proceedings means that any breach of the rules in this respect was technical only.

What advice should they have given? The reports could not be disclosed without obtaining leave from the family judge, and so the question became, was the plaintiff obliged to seek such leave in the circumstances of this case?

It should not be assumed, in my judgment, that leave would have been granted if the application had been made. Rather, the judge had to be satisfied that it was proper for leave to be given, and not inimical to the interests of the child. The question is, whether he could properly take account of the fact that by giving leave he would be destroying the privilege which the plaintiff was otherwise entitled to claim in the civil proceedings, and thereby giving the defendant an advantage over the plaintiff which he would not otherwise, that is, apart from rule 4.23, enjoy.

In my judgment, the family judge was bound to take this factor into account, for otherwise rule 4.23 produces the anomalous and unjust result referred to above. It follows that the plaintiff's legal representatives were entitled to advise him that no such application need be made and that he was bound not to disclose the reports, or to waive privilege, if privilege existed, to the defendant in this action.

I therefore would hold that Mr O'Brien's submissions as to privilege lead to the opposite conclusion from that for which he contends. But this again is subject to the question whether the plaintiff or his representatives by withholding the reports and the fact that they had been made, was in breach of his or their duties not to mislead the court, having regard to the evidence which the experts had already given. If any such breach was in prospect then that would justify the family judge in giving leave for the disclosure to be made.

This usually is identified as a professional duty owed by the party's legal representatives, and I am doubtful whether the defendants's submission that it is also owed by the party himself is necessarily correct. I do not see how the party can be expected to do more than seek and act upon the advice of his legal representatives, and if that is done in good faith, as it was here, then I would have thought that his duty was discharged, even if the advice proved to be incorrect. If it was correct, then no breach of duty has occurred.

The defendant's submission is that "it was misleading for Sedley J. to be left with the evidence of Mr Mackay and Dr Lloyd to the effect that the plaintiff was currently suffering from chronic albeit variable depression and that the prognosis was poor when it was known before judgment that that evidence no longer represented the opinions of those two medical experts (skeleton argument para D.3).

This elides easily into the submission which was made orally that these two witnesses by reason of their October 1994 reports were known to have "changed their minds" as regards the evidence they had given. That statement is not correct, except in the limited sense that by reason of the improvement in the plaintiff's condition after they gave evidence their current (October 1994) view as to (a) his condition, and (b) the prognosis for it, were different from the views which they held and expressed six-months before. The evidence they gave bona fide in April 1994 was correct when it was given. It was not challenged by the defendant's experts and in large measure it was accepted by the judge. There was no reason for supposing in November 1994 that the evidence had been incorrect when it was given, and there is no basis for suggesting that now.

Their evidence in April allowed for the possibility that the improvement in the plaintiff's condition which they had observed from September 1993 would continue notwithstanding the relapse over Easter 1994, and the judge recognised and carefully analysed the likely therapeutic effect of a judgment which was in the plaintiff's favour, although not to the extent that he would have liked.

So the question becomes, was the judge misled by not being told that the plaintiff's recovery had been dramatically quicker and more complete than the expert witnesses had supposed that it would be, when they gave evidence at the trial?

It should be noticed at this stage that what the judge called "the demands of consistency" would have become more pressing on the defendant and her representatives if the October 1994 reports had been made available to them. Clearly, the evidence weakened the plaintiff's case on damages. That was the reason no doubt why persistent efforts were made to prevent the reports from reaching them. But equally, it weakened the defendant's case on liability, because prompt recovery from depression was inconsistent with the ineradicable personality defects, which the defendant's expert witnesses asserted were the only form of mental illness from which the plaintiff was suffering during the period of the trial. It would be interesting to know whether the defendant's experts would have accepted in November 1994 that the plaintiff had recovered from the illness which they had acknowledged in July, or whether they would accept it now.

The fact that the evidence was double-edged would not excuse a failure in breach of duty to bring it to the attention of the court, but it does emphasise that if this had been done, both parties, not only the plaintiff, would re-open almost all of the many issues to which the expert evidence was directed at the trial. And the duty was owed to the court, not to the defendant, so that if the judge had been misled the defendant could not relieve the plaintiff's representatives of their duty so to inform the court.

The extent of counsel's duty not to mislead the court is defined by the contrasting decisions in Tombling v. Universal Bulb Co. [1951] 2 TLR 289 AND Meek v. Fleming [1961] 2 Q.B. 366. Denning L.J. said in the former case "The duty of counsel to his client in a civil case - or in defending an accused person - is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the Court .... but, short of that, he may put such matters .... as in his discretion he thinks will be most to the advantage of his client" (p.297). In Tombling the court was not misled, in Meek v. Fleming , notoriously, it was. Both cases were concerned with the failure to put before the court evidence which was known to counsel at the trial. Neither, therefore, is directly relevant on its facts to the present case.

If material came into counsel's hands which suggested that the evidence which the witnesses gave in April 1994 was false to their knowledge when they gave it, then I would have no hesitation in holding that it was his duty so to inform the court. But that is not the present case.

Moreover, if subsequent events demonstrated that the evidence they had given could not have been correct, either factually as to the plaintiff's condition or as regards the prognosis at that time, then again, if there had been a significant inaccuracy, I would hold that the court should be told. Again, that is not this case.

The fact is that the October 1994 reports showed two things. First, that the plaintiff's recovery had been more marked than his expert witnesses had supposed that it would be, assisted in part by the fact that the long-drawn-out trial was over. Secondly, it cast doubt on the reliability of Mr Mackay and Dr Lloyd as independent expert witnesses. Was the judge misled by not being informed of either of these?

I did not consider that he was. He knew that his judgment was based on the evidence given in April 1994. He knew that subsequent events might or might not have proved that the then prognosis, which was not challenged, was incorrect. Similarly, he knew that the expert witnesses whom he had heard in April/July 1994 might or might not have held the same views in January 1995 when he gave judgment as they did then. In short, his January 1995 judgment, including his assessments of future loss, was based on the prognosis as it was in, at latest, July 1994.

If he wondered whether or not the prognosis remained correct, then he would have to acknowledge that whereas one party might wish to put further evidence before him, the other would certainly object, unless it could be said that the evidence he had heard was incorrect when it was given.

In short, it seems to me that the plaintiff's counsel were entitled to take the view which they did, namely, that they were under no duty to place the October 1994 Reports before the judge.

What then was the extent of their duty to the Court of Appeal? In my judgment, there was no discovery obligation, for the reasons already given, and the October 1994 reports remained privileged, in the manner described above, in any event. That did not apply to the transcripts of evidence given before Judge McNaught, if the plaintiff had them, or to his judgment, but those documents were protected by the statutory requirement of confidentiality under rule 4.23. Moreover, their existence was known to the defendant's representative before and during the appeal. They could have applied to the Family Court, but so far as I am aware they did not do so.

There was no mystery about the fact that family proceedings had taken place in which the plaintiff presumably was contending that he had recovered sufficiently to look after his children His claim might be and probably was supported by expert witnesses called on his behalf. The plaintiff was in court throughout the appeal hearing and if appearances are any guide he was no longer suffering from chronic or even serious mental illness as described by the judge. He had made some degree of recovery, and it was accepted on all sides that the question for this court was whether the judge's findings were correct on the basis of the evidence he had heard in 1994. It was obvious that his condition and prognosis in January 1996 were different from, and probably better than, they had been then. There was no suggestion that fresh evidence should be called in order to assess the plaintiff's condition and prospects at the time of the appeal. There was no issue before us as to general damages or as to the plaintiff's chances of obtaining future employment if his condition should improve. In these circumstances, I do not find convincing the suggestion that we were misled by not being informed that the plaintiff's recovery had been even better than we might have supposed. I would acquit his counsel of this further charge also.

The defendant, by amendment to the notice of appeal, now challenges the amounts awarded as general damages and in respect of future loss of earnings and future costs of professional and domestic help. Having received further evidence of the plaintiff's current (November 1996) condition and the prognosis for it, we clearly must take this further evidence into account when deciding what the proper amounts are.

I agree with Stuart-Smith L.J. that for the reasons he gives the awards for future professional and domestic help cannot stand.

Two issues, in my judgment, arise with regard to general damages. The first is whether the plaintiff can be said to have recovered from his mental illness when he continues to need medication, although the daily amounts are much less than they were. The second is, what have been and will continue to be the consequences for him of the mental injury caused or contributed to by his witnessing the accident in 1982?

The need for medication exists because without it the plaintiff would continue to suffer from distressing and disabling symptoms of depression. Although the symptoms are kept at bay, the fact remains that he is mentally unwell, and I do not consider that he can properly be regarded as having recovered from the injury to his health. To have to take drugs on a daily basis, even in small quantities, is a disadvantage which should properly be compensated in damages, and in addition there are possible long-term consequences of the drug-taking itself and possible side-effects which might cause additional distress. The plaintiff himself has blamed some of his symptoms in the past on the drugs which were prescribed for him then. I therefore would not assess general damages on the basis that his recovery is complete.

The consequences of witnessing the accident in 1982, on the judge's findings and taking account of the evidence we have heard, have been that from 1986, when his business failed (as it would have done, in any event), until today he has been out of work and pre-occupied with this litigation, including a trial which lasted one year to judgment, and which the defendant's representatives, as the judge observed, did nothing to shorten or make less arduous by means of admissions or otherwise. His illness led directly to the break-up of his marriage in 1992. He and his wife are now divorced and the subsequent family proceedings have been far from amicable, due partly I would suppose to his mental ill-health. For many years he was in a state of chronic depression and in 1994 the judge found that he was socially and economically inept. Now that his health is improving he is at an age (54) when he would be fortunate to obtain regular paid employment, in current social and economic conditions, even without his history of prolonged mental illness.

The defendant's representatives did not suggest that the judge's award of £37,500 was excessive, given his findings as to the plaintiff's current (1994) condition and the unchallenged evidence that his prospects for recovery were small. The current situation according to the evidence we have heard is one where his social prospects are brighter, and continued medication will largely eliminate the symptoms of depression which might otherwise be manifest. There is also the possibility, small though it may be, of a worsening of his condition, particularly if these proceedings or his family problems turn out adversely for him.

The figure should clearly be reduced, leaving whatever element represented the past but with a smaller element for future disadvantage and loss. I would not reduce the award by as much as is proposed.

There is no evidence directed to the plaintiff's chances of obtaining some form of paid employment apart frcm the impression which he gave the judge and the evidence of Mr Mackay and Dr Lloyd both at the trial and before us.

Neither witness accepted suggestions made to them in cross-examination that the plaintiff is now capable of obtaining and likely to obtain regular paid employment. It was also put to them that due to his various personality defects, the plaintiff would be unable to hold down any job for any length of time, This is the main reason for the 40% discount (from his assumed earnings if he had not suffered mental illness caused or contributed to by witnessing the accident) which we allowed in our earlier judgments.

Although the chances of the plaintiff obtaining some form of employment is now an issue in the appeal, the defendant has not sought leave to adduce any evidence directed towards this issue and has opposed the plaintiff's application to call further evidence, which it was unnecessary for him to call before.

I agree with Stuart Smith L.J. that that application could not be granted at this late stage of proceedings which are already in extra time. The consequence, in my judgment, is that it would be unfair to the plaintiff to accede to Mr O'Brien's submission that we should act upon published figures for average earnings, when these have not been explained in evidence and when the plaintiff, through no fault of his own, has had no opportunity of challenging their relevance to his case.

In my judgment, his chances of obtaining regular paid employment of any kind are speculative, and on the evidence of Dr Lloyd (Mr Blunt disclaimed reliance on Mr Mackay) there is no real chance of his doing so. I do not consider, on the evidence before us, that this court's assessments, based on the evidence given at the trial, should now be altered. Because of his improved condition the plaintiff no longer receives social security payments which were deducted from the damages figure. The discounted capital value is about £16,000. This represents rather more than 5 per cent of the total award under this heading, and no injustice would be done if this potential reason for increasing the amount was disregarded also.

On the issue regarding the calculation of future (lost) earnings, I agree with Stuart Smith L.J. that the plaintiff's submissions should be preferred.

LORD JUSTICE THORPE: I have had the advantage of reading in draft the judgment of my Lord, Stuart-Smith LJ, and I am in complete agreement with his reasoning and with the result that he proposes. I only differ from him on a comparatively small point as to the extent of counsel's duty.

In my judgment on the appeal I commented upon the unsatisfactory contribution of the mental health professionals at the trial. I recorded the judge's finding that the plaintiff's experts, including of course Dr Lloyd and Mr McKay, were flawed in that they had assumed the very thing that the plaintiff was required to prove. I also recorded the judge's conclusion that the defendant's experts were parti pris. The re-opening of this appeal has now revealed the degree to which at least Dr Lloyd and Mr Mckay amongst the plaintiff's witnesses were also partisan. Without any inkling of what the re-opening of the appeal has subsequently revealed I commented upon the danger that an expert witness who has a well established patient relationship with the plaintiff might develop therefrom a sympathy for or identification with the plaintiff that jeopardised objectivity. I emphasised that mental health experts in the family justice system owe a duty to the court which in the event of conflict manifestly prevails over any duty to the party giving instructions. I criticised the defendant's experts for their partisan performance, suggesting that their loss of objectivity might be ascribed to their daily attendance at the trial which had tempted them into sharing attitudes, assumptions, and goals with the defendant's litigation team. Had I then known what is now revealed I would have been equally if not more critical of Dr Lloyd and Mr McKay. Whilst my lord, Stuart-Smith LJ, rightly observes that the erroneous judgment of the plaintiff's counsel bears responsibility for the considerable extension of this appeal, and conceivably the appeal itself, the dilemma from which the error stems was plainly created by the readiness of both Mr McKay and Dr Lloyd to do their best to present the plaintiff's condition on different dates and in different proceedings in the light that seemed most helpful to the immediate cause, ignoring their equal or greater duty to the court and disregarding the very considerable inconsistencies that inevitably developed.

In fairness to Mr McKay and Dr Lloyd I will amplify the basis of those conclusions.

In evidence to this court Mr McKay justified his pessimistic interpretation of the plaintiff's September 1993 recovery on the following three grounds:

1. The consultations which he had had with the plaintiff between September 1993 and early 1994.

2. His observations of the plaintiff in and out of the witness box at the trial.

3. His telephone conversation with the plaintiff on Maundy Thursday 1994.

This evidence cumulatively had justified his opinion to Mr Justice Sedley that the September 1993 recovery was a transient phenomenon.

Dr Lloyd accepted that the only happening since September 1993 that influenced his pessimistic assessment was the telephone conversation he had had with the plaintiff over the Easter vacation.

Manifestly the duty that these two experts owed to the judge in the Children Act proceedings, the welfare of children being at stake, was at the least to draw attention to these regressions if presenting a fundamental revision of the plaintiff's medical history between September 1993 and October/November 1994.

The plaintiff's solicitors in the family proceedings approached Dr Lloyd and Mr McKay for reports on 8th August 1994. In the letter to Dr Lloyd the solicitor wrote:

"My understanding is that Peter's condition has improved significantly since (early 1993) and (his wife) has now made a fresh application to the court for Peter's eviction from his home."

Presumably that understanding of significant improval came from his client. A further letter was written to both experts on 2nd September. The letter to Mr McKay included this sentence:

"He argues that his health has improved dramatically but the court is naturally going to be somewhat wary given Mr Vernon's psychiatric history."

Further letters were written to the experts in identical terms on 28th September. Both letters enclosed a copy of a judgment given on 25th August on the plaintiff's application for an interim residence order. The revealing passage comes on the second page of the letter. It is worth quoting in full:

"We need to show that (Mr Vernon's) mental health has improved dramatically since the date of your report in May 1993 and moreover that it has improved again since the conclusion of his big personal injury case. On the positive side we need to establish that he can do all that is required of a parent and that he is mentally perfectly fit to fulfil that capacity. I should also be grateful if you could address the issue of Mrs Vernon's ouster application. In your professional opinion would it be right to take this man from his home and what might happen if he were ordered to leave. It is difficult to balance the two strands of the forthcoming hearing but we will need to convince the judge not to impose an injunction on Mrs Vernon ordering him to leave but at the same time awarding him residence of the children instead of Mrs Vernon."

The recipient does not have to read between the lines to discern that his instructions are to walk the tightrope leading to the grant of his application, dependant upon a clean bill of health, and the refusal of her application, on the ground that his psychiatric state would be too frail to withstand the reaction to an ouster order. This sort of attempt to influence the expression of expert opinion is to be deplored for the simple reason that it colludes in a partisan approach and ignores the expert's duty in Children Act proceedings to write every report as though his instructions came from the guardian ad litem.

The influence that this instruction had upon Mr McKay's report is obvious. Having described his patient's improvement in September 1993 he continued:

"This improvement persisted during the ensuing months and, indeed, he coped extremely well with the stresses and strains of court attendances between January and July when his claims case was being heard."

The triple strands of the evidence of regression which apparently influenced Mr McKay's evidence to Sedley J in April 1994 are simply not referred to at all. Then having reported on a consultation with the plaintiff on 11th October 1994 Mr McKay pronounced full recovery from chronic depression. He added this paragraph:

"I have no doubt whatsoever that Mr Vernon would prove to be not merely an adequate parent but in fact a 'rock' upon which the children could confidently depend during the remainder of their childhood, and indeed throughout adulthood, for support, guidance and encouragement."

He then turned to the reverse of the coin. He wrote:

"(An ouster injunction) would be particularly difficult for him to accept at this juncture for reasons radically different to those raised in my report of May 1993 when Mr Vernon's personal welfare was a major consideration. Given that he has recovered from his chronic depression and is no longer distracted by his claims case, he feels better able than at any time in the past to provide his children with the support, guidance and encouragement they clearly require if they are to overcome their current difficulties and grow into mature, responsible and self-confident adults."

The later report, upon which reliance was placed, was moderated by amendment and extension. But like my lord, Stuart-Smith LJ, I cannot accept that those changes were the product of Mr McKay's spontaneous pen. I too found his evidence on this question unconvincing.

Dr Lloyd's response to his letter of instruction was more circumspect. In his introductory paragraph he made it plain that he was dealing with the plaintiff's residence order application alone. He then listed the papers in the case which he had read to aid him in the preparation of his report. They included the plaintiff's statement of 30th September 1994. In paragraph 28 thereof the plaintiff had stated, "My psychiatric situation has improved dramatically since the separation two years ago". On page two Dr Lloyd dealt with the history from 7th May 1993 to date. What he said of spring 1994 was as follows:

"I was required to attend court for fifteen days during the compensation trial and found Mr Vernon to be smart, alert and attentive and able to conduct himself with dignity. There were occasions when he was emotionally distressed as a result of the evidence given in relation to the death of his two children, but this response was understandable and reasonable given the tragic loss."

It is to be noted that there is no mention of the evidence, namely the telephone conversation he had with the plaintiff over the Easter vacation, which had led him to give such a pessimistic prognosis to Sedley J.

In the paragraph headed prognosis appears this sentence:

"Following the death of his children he suffered from severe prolonged post-traumatic stress disorder the consequences of which were to cause a state of chronic depression which has improved quite dramatically in the last year."

The same phrase appears in his comment on the court welfare officer's report:

"It is clearly the case that Mr Vernon's depression has improved dramatically since this report was written - indeed he is no longer clinically depressed."

The report ended with this conclusion:

"In my opinion Mr Vernon is currently in good mental health and is not showing symptoms of depressive illness, although I feel he needs continuing pharmacological treatment and outpatient supervision to minimise the risk of relapse especially during this particularly stressful time. From the evidence available to me he appears to be both a capable and loving parent. I do not think there are compelling psychiatric grounds to prevent him from caring for his children on a full time basis."

These extensive quotations from the reports written by Mr McKay and Dr Lloyd in October 1994 justify the conclusion that they were thoroughly partisan reports. Judge McNaught was entitled to an objective and complete statement of the recent medical history together with an unbiased prognosis as to the future in order to enable him to make a balanced assessment both of risk and of the welfare considerations. These reports simply do not meet the standards that are expected of experts in Children Act proceedings. However there are two mitigating circumstances. First both experts had had extensive patient relationship with the plaintiff and both had been sucked into the personal injury litigation to the extent of each spending approximately three working weeks in court, only a small proportion of which was necessary for their testimony. In my judgment on the appeal I emphasised the danger of distortion from such factors in isolation. They are even more dangerous in combination. Second neither expert had any worthwhile experience of Children Act proceedings. Mr McKay said he had never previously been involved in a Children Act case and Dr Lloyd had had only very limited experience.

It seems to me that the demonstration of partisan commitment on this scale is corrosive of confidence in the value of the opinion not only then expressed but also previously and subsequently expressed. As my lord has said, the material in the Children Act proceedings might have affected the issue of liability as well as the issue of quantum. In finding for the plaintiff on liability Sedley J placed some reliance upon the opinion of both Mr McKay and Dr Lloyd. Had he seen revealed their capacity to come to the plaintiff's aid in his residence order application he might have evaluated differently the support which they lent to his personal injury claim. Equally I find it difficult to avoid a degree of scepticism in evaluating the evidence which they have given to this court on the plaintiff's state throughout 1996.

The damaging significance of the further evidence to the plaintiff's case is, of course, highly relevant to the exercise of the discretion as to whether it should be admitted. In approaching that question I found particularly helpful the judgment of Lord Justice Russell in the case of Hughes v. Singh , C of A 13th April 1989 reported only in the Times 21st April 1989. Having reviewed the authorities culminating in Mulholland v. Mitchell [1971] A.C. 666, Lord Justice Russell said:

"It is, in my judgment, plain from these authorities to which I have referred that the Court of Appeal has indeed a wide discretion to exercise the power to receive fresh evidence, but that it should always be exercised sparingly with due regard to the need for finality in litigation. It is impossible to produce any sort of exhaustive list of the relevant considerations. But for my part I would emphasise that the following must always be material: (1) The extent to which the fresh evidence may affect the award of damages; the greater the extent the more likely and ready the Court of Appeal should be to admit the evidence; (2) The time element. It is not in my judgment necessary that fresh evidence should emerge before the case would ordinarily reach the Court of Appeal, but the closer to the date of trial the more likely it is that the evidence will be admitted. In this case I remind myself that the fresh evidence emerged within a matter of four months of the trial. It emerged before, in the ordinary course of events, the matter would have reached this court, and of course it emerged at a time when already the plaintiff's advisors had lodged a notice of appeal directed to the issue of damages so far as the plaintiff's future was concerned. (3) The conduct of the parties. Any inequitable conduct on the part of a litigant is plainly relevant as other conduct may be in the course of the proceedings which have led to the mistaken assessment.

At the end of the day, as Lord Wilberforce said in Mulholland's case, the evidence should be admitted in all cases where it would be an affront to one's sense of fairness not to admit it, and of course in applying that test the court takes into account all the circumstances - in my judgment before, during and after the trial."

Applying that trio of considerations to this case, plainly the fresh evidence affects the amount of the plaintiff's award to a significant extent. Second the time element goes strongly for admitting the evidence. The fresh evidence emerged before judgment, if not before submissions, even if it was not available to the defendants until a later stage. Third there is plainly inequitable conduct on the part of the plaintiff who has deliberately advanced contradictory cases in contemporaneous proceedings in different courts to gain advantage in each. Certainly at the end of the day my sense of fairness would be affronted were technicalities successfully raised to exclude this material.

On this issue I am in complete agreement with the judgment of my lord, Stuart-Smith LJ. In his attempt to discredit the note at page 420 in the White Book Mr Blunt was obliged to rely upon the case of James v. Plummer [1888] 23 LJ (NC) 107. The decision in that case is almost unreasoned and, as my lord has pointed out, it has been lost from legal sight for three quarters of a century. It would be patently absurd to resurrect it. To do so would be to destroy the sensible practice contained in the White Book note, to put this jurisdiction out of step with both Australia and Canada, and to introduce a practice so obviously out of step with the modern movement towards effective and cost saving procedures.

That the reports of Mr McKay and Dr Lloyd were not the subject of litigation privilege is plainly established by the decision of the House of Lords in Re L (a minor) (police investigation privilege ) [1996] 2 W.L.R. 395. Mr Blunt's endeavour to distinguish that authority were quite unpersuasive.

His first submission was that the authority should be restricted in its application to public law proceedings. The essential foundation of the decision of the House was that Children Act proceedings are not purely adversarial but quasi inquisitorial. That is as true of private law proceedings as of public law proceedings. Equally in each the ultimate question is which of the available outcomes will best promote, or sadly in many cases least damage, the future welfare of the child. The approach to outcome frequently involves an assessment of risk and adult dangerousness. The court's enquiry cannot be deflected, inhibited, or disadvantaged by litigation privilege.

Mr Blunt's second submission was that the conclusion in Re L depended upon the circumstance that the reports in question were prepared from material which had been specifically directed to be made available to the expert for the purposes of preparing the report. Here the order of 24th October 1994 made by consent was only in these terms:

"1. There be liberty to the respondent to serve and file reports from:

(i) Dr G Lloyd (consultant psychiatrist) by Wednesday, 2nd November 1994.

(ii) Mr D McKay (clinical psychologist) on or before Friday 28th October 1994."

Of course as I have already demonstrated Dr Lloyd had in his possession a substantial proportion of the court papers before writing his report. Some were sent to him by a letter of 26th October from the plaintiff's solicitors responding to a request from Dr Lloyd's secretary. Strictly prior leave should have been obtained from the judge. The failure to write that leave into the consent order of 24th October was plainly an error on the part of the plaintiff's solicitors. The argument that in consequence of that failure a litigation privilege arises that would not otherwise have arisen is little short of absurd.

In my judgment this rule has no bearing on the rival submissions as to whether or not the material extracted from the Children Act proceedings relevant to this appeal should have been disclosed to Sedley J. The purpose and effect of rule 4.23 is to ensure that the confidentiality of proceedings protects not just the days in court but also the preliminary stages from first issue of proceedings and equally the continuing future post judgment. The safeguard is provided by the rule and applied by the court. However if there is a legitimate need for the use of the material in other proceedings the court exercises a discretion either to sanction or refuse release on the application of principles established in a long line of authority. Any party to the proceedings can apply to the court to exercise this discretion. Had Mr Blunt shared Mr Bretton's view that evidence as to the plaintiff's state of recovery in October 1994 should be disclosed to Sedley J, then an application to His Honour Judge McNaught would surely have resulted in an order sanctioning release. Had the defendants had knowledge of this evidence at that date it would have been open to them to apply to intervene in the Children Act proceedings for the sole purpose of applying for the release of the material. Certainly the plaintiff cannot rely upon rule 4.23 to avoid any obligation otherwise arising.

The classic statement by Denning LJ in Tombling v. Universal Bulb Company cited by my Lord, Stuart-Smith LJ, is clearly of enduring application. Its application to the facts of individual cases can plainly give rise to finally balanced outcomes. In that case Singleton LJ delivered what was in effect a dissenting judgment. Counsel, Mr MacDermott, had established his client's address at 96 Church Road by putting to him the leading question, "Do you live at 96, Church Road, Stoneygate?" Like Singleton LJ I regard that as active and not passive presentation. Denning LJ was apparently reassured by the evidence of Mr MacDermott. He said:

"But after hearing Mr MacDermott I am quite satisfied that it was not done to mislead. This question was only asked so as to give the man's permanent address, without disclosing the discreditable but irrelevant fact that he was at present in prison for a motoring offence."

On the material in the report that strikes me as a charitable conclusion in the light of counsel's use of a leading question in preference to the proper form, "where do you live?".

Mr Blunt also relies upon the decision of the House of Lords in Livesey v. Jenkins [1985] 1 A.C. 425. He argues that since the House rested the wife's obligation to disclose her intention to re-marry only upon considerations special to ancillary relief proceedings under the Matrimonial Causes Act 1973, it follows that there is no wider duty applicable to other proceedings. I do not find the decision in Livesey v. Jenkins of much relevance in determining the issue raised by this appeal. Of course in purely adversarial litigation where there is no particular duty of full and frank disclosure, a plaintiff is free to parade his strengths and hope that the defendant does not uncover his weaknesses. But quite different considerations must apply where the plaintiff elects to conceal from the court a material change of circumstance arising between the close of his case and the delivery of judgment.

On the facts of this case I am in complete agreement with my lord, Stuart-Smith LJ, that the plaintiff was under a duty to report this material development to Sedley J. As I have already pointed out his statement of 30th September, instructions for which must have been taken from him at an earlier date, contained the claim to dramatic improvement and the letter from his solicitor in the matrimonial proceedings written on 8th August referred to significant improvement. In my judgment it is simply unconscionable for a litigant to run contradictory cases in simultaneous proceedings in the hope of gaining advantage in each. In evaluating the plaintiff's responsibility it is significant to my judgment that he was ready enough to disclose the reports prepared by Mr McKay and Dr Lloyd in 1993 for the divorce proceedings. At that stage he had an equal aim to establish a gloomy picture in both cases.

I am equally clear that Mr Blunt's decision to withhold the material was the result of a conscientious but erroneous exercise of judgment. I have every sympathy with Mr Blunt. After some 70 days of evidence in what was unquestionably as highly charged and arduous a personal injury case as it would be possible to conceive the prospect of re-opening evidential issues must have seemed unpalatable to say the least. There is only one point that I wish to make in relation to Mr Blunt's submissions in this field. He submitted that in the dilemma of decision counsel had only to look to the authorities and apply them to the circumstances. Counsel was not to be guided by his feelings on the issue in question. I cannot accept that counsel's approach should be so strictly cerebral. There is a value in instinctive and intuitive judgment. The more difficult the decision the greater that value. The course that feels wrong is unlikely to be the safe course to follow. In general terms the balance between the advocate's duty to the client and the advocate's duty to the court must reflect evolutionary change within the civil justice system. If evolutionary shifts are necessary to match civil justice reforms they should in my judgment be towards strengthening the duty to the court. Differing practices and procedures in the family justice system, the criminal justice system, and the civil justice system must be reflected in different requirements in, for instance, a criminal trial and a Children Act hearing.

The only difference of opinion that I hold from my lord, Lord Justice Stuart-Smith, is as to counsel's obligation if his client demurs in the communication of necessary material to the judge. If counsel's duty goes no further than requiring his withdrawal from the case there seems to me to be a remaining risk of injustice. Of course such an event leads to speculation. But more than one inference is there to be drawn. I would hold that in those circumstances counsel has a duty to disclose the relevant material to his opponent and, unless there be agreement between the parties otherwise, to the judge.

Order: Appeal allowed; judgment below be varied as follows:

damages 443,314.55 + interest 198,179.15 = £541,493.70;

order as to costs below to stand; costs from date of

Calderbank offer and appeal be for defendant;

no separate order as to index-linking point;

defendant be at liberty to set off costs against costs

payable to plaintiff and damages; defendant's application

for leave to appeal to the House of Lords refused;

execution of money in court stayed pending petition for

leave to appeal to the House of Lords or, if leave granted,

pending hearing of appeal; liberty to defendant to apply

for wasted costsorder or order against Legal Aid Board

up to 28 days after hearing of any appeal in the House of

Lords; plaintiff's application for leave to appeal to the

House of Lords refused in both cases.