England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MIDDLESBROUGH DISTRICT REGISTRY
(His Honour Judge Bryant
sitting as a Deputy Judge of the High Court)

		The Royal Courts of Justice The Strand London WC2A Tuesday 24 July 2001

Tuesday 24 July 2001

1. LORD JUSTICE LAWS: This is a claimant's appeal against case management orders made by His Honour Judge Bryant sitting as a Deputy Judge in the High Court in Middlesbrough on 13 March 2001.
2. The action is a claim for damages for personal injuries sustained in and in consequence of a road traffic accident which took place on 27 October 1994 when the claimant was aged 16. He suffered very grave damage to the brain. I understand the damage not to be reversible. Its consequences in terms of the claimant's behaviour and ability to function are described in the first skeleton argument prepared on his behalf by Mr de Wilde QC as follows:

"a. Outbursts of irrational anger and total loss of emotional control;

b. An almost total inability to consider the feelings or concerns of anyone other than himself;

c. A lack of ability to plan, manage or have any structured daily living;

d. An inability to follow through any activity without prompting or supervision;

e. An undisciplined taste for alcohol which exaggerates the loss of control and produces anti-social behaviour;

f. An anti-social degree of sexual disinhibition together with an uncontrolled sexual appetite;

g. A propensity to be a danger both to himself and other people."

3. The course of his management and treatment after the accident are also summarised by Mr de Wilde thus:

"a. After discharge from Hospital, his parents looked after him, and discovered that he was both uncontrollable and totally disruptive. He ended up having serious problems with those of his age group in Redcar, such that he is now adamant that he will never live in Redcar.

b. The Claimant was admitted to the Brain Injury Rehabilitation Trust Unit Centre at Daniel Yorath House, Garforth, Leeds and was later discharged from that unit for being too disruptive.

c. He returned home and began abusing alcohol and drugs.

d. He was admitted to the famous Transitional Rehabilitation Unit at Haydock, St Helens in June 1997. He discharged himself from that Unit in February 2000. The discharge summary stated, inter alia, that 'to summarise, it is vital that Lee has support. . . '.

e. He was discharged into private rented accommodation in Haydock, (living alone), but lacked sufficient structure and support, associated with undesirables, and was found to be sleeping with a hammer under his pillow and a wooden stake beside his bed. His parents live some 2 1/2 hours drive away. He had distanced himself from the TRU and had no friends or relatives in the area.

f. He moved to the Pickering area of Yorkshire in September 2000, living in a caravan, as he wished to work as a fairground assistant at Flamingoland.

g. After 7 weeks he returned to Haydock at the end of October, and is presently living there in an unstructured and unsupervised life."

4. This summary is fleshed out, as it is put, by Mr Turner QC for the defendants in this short passage from his skeleton:

"(i) The Claimant has not suffered any significant intellectual deficit.

(ii) The Claimant has retained his powers of memory.

(iii) The Claimant is able to read and write normally.

(iv) The Claimant does not want support workers. There is no evidence that the Claimant fulfils the requirements of the Mental Health Act 1983 to be 'sectioned'. The Court of Protection will exercise control over his damages but not over his choice of lifestyle.

(v) Every effort has been made by the Claimant's Case Manager, Liz Booth, to offer the Claimant an appropriate level of support."

5. As that passage suggests, the appellant is subject to the supervision and jurisdiction of the Court of Protection. He has now moved on, we understand, to a new address in York.
6. In the proceedings, only the quantum of damage is in dispute. The case management orders, the subject of this appeal which is brought with permission granted by the judge below, are three in number: (1) refusal of an application for a direction that the appellant be allowed to rely on the testimony of a consultant neuropsychologist of his own choosing rather than Dr Ghadiali, the single joint expert whom the court had appointed; (2) refusal of permission to obtain a report from Dr Peter Eames, consultant neuropsychiatrist, and to call him to give evidence; (3) refusal of permission to call the claimant's own care expert rather than merely rely upon the single joint expert appointed by the court, Miss Booth.
7. In order to understand how the issues on the appeal arise it is necessary to describe something of the procedural history. A previous case management conference was held before District Judge Brougham on 24 May 2000. We have a note of the proceedings before him prepared, as I understand it, by the defendant's solicitor. It is plain that the appellant's counsel (Mr de Wilde's junior, Mr Miller) raised in effect the very issues which were later canvassed before His Honour Judge Bryant.
8. I refer first to the question of evidence from a neuropsychologist. The note of the District Judge's decision has this passage:

"Mr Miller confirmed that so far they had had two reports from neuro-psychologists. The first report from Dr A Hickox dated 9/7/96 and the second from Dr E J Ghadiali dated 31/8/99. Mr Miller confirmed that they did not want to rely upon the report of Dr Hickox or Dr Ghadiali. DJ Brougham expressed surprise in that Dr Hickox was experienced in this area and well known. DJ enquired of Mr Miller whether the reason was that Claimant's counsel did not like the conclusion of the report of Dr Hickox.

Mr Miller read from the written opinion of Mr de Wilde. Mr de Wilde thought that there were problems with the quality of the report of Dr Ghadiali. Mr de Wilde said that the Claimant was clearly suffering from 'executive disfunction' and Dr Ghadiali had not picked up on this. In the light of this Mr de Wilde recommended a third report from Dr Cosmin-Ford (of Pinderfield Hospital, Wakefield). She would not be able to prepare a report until 23rd September however. . .

Miss Foster then conceded (after taking instructions) that the report of Dr E J Ghadiali could be agreed. The Judge said that this was the best way forward. Dr Ghadiali had reported on 31/8/99. If Mr de Wilde had questions that needed to be put to him that could be done in writing.

DJ Brougham therefore refused the Claimant's application to obtain and rely upon a third report from Dr Cosmin-Ford. The parties would be entitled to rely upon the evidence of Dr E J Ghadiali with questions if necessary."

9. Then the District Judge considered whether to allow the appellant to adduce the evidence of a neuropsychiatrist. Dr Rose rather than Dr Eames was proposed at that time. This touches the second relevant application before His Honour Judge Bryant. The note of the District Judge's decision reads:

"The Judge said that he was sceptical as to the need for such evidence. In what way could Dr Rose help with the issue of rehabilitation. This was being dealt with by Ms Booth on a day to day basis who had a great deal of contact with the Claimant.

Miss Foster strongly objected to the use of Dr Rose. Evidence in this area was not necessary. Dr Rose had taken a contrary view to the other experts in this case as to the necessary care regime.

The Judge confirmed that he was not willing to allow the evidence of Dr Rose. Permission by the Claimant to rely upon this report was therefore refused. No neuro-psychiatric evidence."

10. Lastly, so far as material to the issues in this court, the District Judge addressed the question of care evidence. There is disagreement on the face of the skeleton arguments about the history of the involvement in the case of Miss Booth, who was the single joint expert appointed by the district judge. Passages in the skeleton arguments respectively prepared by Mr de Wilde and Mr Turner make clear what the details are. It is not necessary, I apprehend, to read those. The note of the District Judge's judgment reads:

"The Claimant was asking for a care expert for each party. Mr Miller contended that Ms Booth was at the 'coal face' and therefore could not have a good overview of what the care requirements were. . . The judge dismissed the suggestion. He said that the judiciary now took a broad view of such issues as gardening/decorating and DIY.

With respect to care he confirmed that Liz Booth was in the best position to judge this and able to do a mathematical calculation of the care provided. There was no need for a care expert.

The Judge therefore refused permission to rely upon care evidence. The only care evidence that would be allowed would be from Ms Booth with the parties entitled to ask her questions."

11. Thus it can be seen that the appellant's contentions concerning neuropsychological evidence, neuropsychiatric evidence and care evidence were all canvassed before and rejected by the District Judge.
12. The decision arrived at by District Judge Brougham was appealed to Andrew Smith J sitting in Newcastle on 12 October 2000. He dismissed the appeal while making some alterations to the procedural timetable, which had slipped.
13. In his judgment the learned judge first dealt with the appellant's application to call a neuropsychiatrist, at that stage still Dr Rose. I take it as shortly as I can. This passage appears in the judgment:

"An assessment needs to be made by doctors as to the regime which he [the appellant] will require from the medical point of view. This will involve no doubt an assessment of his capability and likely prognosis. That is an area, as far as I can discern, within Dr Ghadiali's field of expertise and this is indicated by the last page of his report of 18th January 2000. I see no reason to believe that he cannot give proper assistance to the Court as far as that is concerned, at least as far as the information before me goes at present."

14. Pausing there, Mr de Wilde has complained before us this morning that the learned judge was misdirecting himself on the facts here, because the passage fails to recognise that Dr Ghadiali is not himself a doctor. The learned judge continued:

"The other area of expertise will be to convert that information about the required regime into cash terms. This does not seem to me an area where Dr Rose's expertise is required and is more the field of Miss Booth to whom I shall refer shortly. It therefore seems to me that Dr Rose's evidence is not likely to be required to assist the Court."

15. The learned judge proceeded to deal with the issue concerning Dr Ghadiali, the neuropsychologist. He said this:

"It is a matter of record that Dr Ghadiali was first introduced into the case by the Claimant. He was in loose terms initially their expert. However, the Claimant's advisors have become dissatisfied with Dr Ghadiali and would prefer to have Dr Ford give evidence in support of their case."

16. A reason put forward for that view was then set out by the judge, who continued:

"The view I take of that matter is that it is to raise just such points that it is provided in the Order of 24th May 2000 that the Claimant can raise questions with Dr Ghadiali."

17. The judge concludes the passage in question with the observation that:

". . . on the face of it Dr Ghadiali is an eminently qualified consultant neuro psychologist."

18. Lastly, in relation to the care expert, Miss Booth, the learned judge said this:

"It seems to me that the nature of her evidence is likely to be that she will translate into cash terms as I have said the regime which the medical evidence suggests will be required. Her report in that regard in that sense will be transparent and the stages in her reasoning, I would expect, will be apparent to those reading it. If there are stages in her reasoning which require clarification or which either party challenges it will be open for them to do so at that stage. It may be or it may not be that such a challenge will make it apparent that further evidence is required but if it is required at all, which I suspect is unlikely to be the case, it will be upon defined and specific issues. It seems to me that the challenge to Miss Booth's expertise or the order with regard to her evidence is again premature."

19. Andrew Smith J refused permission to appeal to this court and no application for such permission was made here. As will rapidly become apparent, that is an important feature of the case.
20. By his formal order Andrew Smith J required that questions by both sides be submitted to Dr Ghadiali by 4.00 pm on 17 November 2000, and he was to reply by 21 December 2000. The judge also ordered that a further case management conference be held at Teesside in January 2001.
21. In the event the restored case management conference did not come on until 12 March 2001 when, as I understand it, it was transferred from the District Judge's list to His Honour Judge Bryant. He heard argument over two days and delivered judgment on 13 March 2001. The appellant's points about psychological, psychiatric and care evidence were all canvassed again. The judge was, of course, immediately alive to the fact that he was being asked, in effect, to overturn the orders of Andrew Smith J which had not been appealed. He was really being treated as an appellate court vis-a-vis Andrew Smith J. Judge Bryant was rightly concerned by this and he addressed the principle involved as follows (transcript page 5, line 4):

"It seems to me that it would only be proper for me to alter the orders made by the District Judge and approved by Mr Justice Andrew Smith if there had been some change of circumstances or if the possible eventualities, which I shall come to, dealt with by Mr Justice Andrew Smith in his judgment as possibly needing further expert evidence of the type foreshadowed in his judgment, had come to pass. Even if I disagreed strongly with the approach taken by District Judge Brougham or by Mr Justice Andrew Smith, it seems to me that it would be improper to alter the directions given for that reason alone. Consistency seems to me to be an important feature of case management and if directions are to be changed, reversed at the whim of whatever tribunal they come before, instead of becoming swifter and more just, cases would become slower and less just. Money would be wasted on experts whose use would suddenly be withdrawn, delays would be caused because people suddenly added experts, and the whole system of civil justice would degenerate into some sort of shambolic lottery.

So it is within very narrow constraints that I must proceed in this case management conference so far as it concerns matters which have previously been the subject of judicial decision and direction and where there is no change of circumstances, or no significant change of circumstances. I must also of course bear in mind the overriding objective."

22. I consider that this approach taken by His Honour Judge Bryant was wholly correct. There are, as was submitted in the respondent's skeleton, clear and detailed procedures for bringing appeals against interlocutory orders. These are not mere technicalities. They exist to achieve finality and certainty within the processes of civil litigation. If they are ignored by litigants who prefer to air their procedural points all over again at a later case management conference and that kind of action were sanctioned by this court, the aims of the Civil Procedure Rules would be significantly undermined. We would have uncertainty and repetition, not clarity and finality. Of course if there were a true change of circumstances then in my judgment the flexibility which the CPR commend would plainly allow a change of view as to the procedural orders which should be made. But here, when the case went before His Honour Judge Bryant there was in reality no such change save to a very limited extent identified by the judge when he said this (page 12 line 19):

"There are, I suppose, some new matters in that she [Miss Booth] has since then answered certain questions in a document dated the 2nd December 2000. In that document she explains her reasoning in relation to the claimant's father, but beyond that she does no more than elaborate what she said before and does not seem to me to deviate or to add anything new."

23. All that said, Judge Bryant in fact went into the merits of the argument. I will not read the passages. He dealt with the questions relating to neuropsychological evidence at page 7 of the transcript and in certain further respects on page 8; in relation to the neuropsychiatrists in passages at pages 8, 9 and 10; and lastly in relation to Miss Booth at pages 11 and 12.
24. Mr de Wilde, for the appellant, has now produced certain new material. That consists of a report from Dr Eames, the consultant neuropsychiatrist whose expertise is desired to be relied upon; a report from Dr Ford, a neuropsychologist; and a report from Susan Bayram, a Registered General Nurse and nursing consultant, to deal with the care issue. There is no permission to adduce any of this material. We have looked at it on a provisional basis. Dr Ford criticises Dr Ghadiali. Dr Ghadiali has replied by a further report. Dr Eames describes the appellant's psychiatric condition and says he cannot manage his own affairs or take proper care of himself and that he will never become employable. Miss Bayram criticises Miss Booth.
25. For my part, to put it at its lowest, I greatly doubt whether any of this material is properly before us. It seems to me to be neither more nor less than part of an attempt to persuade this court to adopt a first instance case management role; and that after three hearings below, one on appeal to Andrew Smith J and another, that before Judge Bryant, which was itself an attempt to treat the first instance court as if it were a Court of Appeal over Andrew Smith J. The whole exercise is inappropriate and misconceived. In any event, there is no proper basis for admitting this material according to well-established rules of procedure and practice. It is plainly new evidence. Mr de Wilde requires this court's permission to adduce it: CPR 52.11(2)(b). The principles in the well-known case of Ladd v Marshall [1954] 1 WLR 1489 in their essence apply. There is not the slightest ground for supposing that the material could not have been obtained for the hearing before His Honour Judge Bryant.
26. In my judgment at the very least there is no proper basis upon which this court should interfere with the conclusions arrived at by His Honour Judge Bryant on the issues concerning the psychological and psychiatric evidence. As the respondents assert, had the decision of Andrew Smith J been appealed it would have fallen to be treated as a second-tier appeal with the disciplines that attach to that circumstance. The appellant would have been required to show some general point of principle or practice or other compelling reason for the court to entertain the appeal. In my judgment this appeal is a misplaced attempt to distort the role of this court and it should not have been brought. I repeat, while Andrew Smith J refused permission to appeal against his orders, no application was made to this court to take the matter further at that stage.
27. I add a word about Miss Booth and the care evidence only because the facts seem to have moved on. It is said that she has resigned as joint care expert by letter of 18 June 2001 and that by a further letter of 16 July she has confirmed that she no longer wishes to be involved. Now a further case management hearing is scheduled to take place on 14 September 2001. If, as seems to be clear, Miss Booth has indeed withdrawn, the judge on that occasion will have to decide what should be done in relation to care evidence. Submissions, of course, can be made to him by both sides. It is not a matter for us.
28. For all the reasons I have given, this is a misconceived appeal and I would dismiss it.
29. LORD JUSTICE SIMON BROWN: I share my Lord's view that this appeal is misconceived. Not only does it involve a full-frontal assault on the whole notion of court-imposed single joint experts, an integral part of the civil justice reforms, but, more particularly, it constitutes an attempt to overthrow the order made on 24 May 2000 by the district judge, which was upheld by Andrew Smith J on 12 December on appeal and not further appealed. The nakedness of this attempt is perhaps most obviously demonstrated by reference to the transcript of the argument before Judge Bryant, which it would be kinder to Mr de Wilde QC not to quote.
30. The argument, intrinsically objectionable for those reasons, is further dependent on three fresh reports obtained only this month. No permission to adduce this fresh evidence has been sought; nor, indeed, could it properly be given, least of all in the context of ongoing case management conferences. The appeal is accordingly misconceived on this ground too.
31. The root objections to the appeal seem to me neatly encapsulated in a single sentence to be found in Mr Turner QC's final skeleton argument:

"Having treated the Court of first instance as if it had appellate jurisdiction, the [Appellant's] advisers now invite the Court of Appeal to exercise first instance discretion."

32. The appeal is dismissed.
ORDER: Appeal dismissed with costs