England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Hunt)

		Royal Courts of Justice Strand London WC2 Tuesday, 13th November 2001

1. LORD JUSTICE MAY: This is an emergency application for permission to appeal a case management order made by Mr Justice Hunt in a large medical negligence action, the trial of which starts in Manchester today. The order appealed against was made about a fortnight ago, on 29th October 2001. Susan Graham sues the Central Manchester Healthcare Trust, alleging negligence arising out of bowel surgery in December 1993 and perhaps later.
2. There have been a number of orders made in the last two years or so. There were orders about medical experts. One issue concerns the claimant's life expectancy. That is relevant to the quantification of damages; it may be relevant to the quantification of future care if she succeeds on liability. Quixotically, I believe it would be the case that the longer her life expectancy, the larger her damages. Accordingly, the forensic interest of the claimant is that her life expectancy should be longer, and of the defendant that it might be shorter.
3. As I read the papers that are put before me, the question raised first came to light in May of this year, 2001, when there was a successful application to re-re-amend the statement of claim. A helpful amendment to paragraph 11 of that pleading asserts that, if the claimant's circumstances improve, she has a reasonable expectation of a normal life expectancy. That has received some factual content in suggestions that, if she is successful in these proceedings and recovers what she regards as substantial damages, her psychological health may improve. That, in turn, may improve her physical health consequent upon the troubles that she has had, and her life expectancy, it may be, would therefore be regarded as better than it otherwise might be.
4. Accordingly, there arose a psychological issue. There was an application on behalf of the claimant in May 2001, at the same time as the application was made to re-re-amend the statement of claim, to call as an expert a Dr Lurie, who is a clinical psychologist. This was in circumstances where the other experts were saying that they could not help on the psychological point, which I have briefly tried to describe, and that they would defer to such an expert. In May of this year the application to rely on Dr Lurie was adjourned; and it was as recently as 3rd September of this year that a district judge gave the claimant permission for Dr Lurie to be relied on, and at the same time gave permission to the defendants to instruct a psychologist or Dr Lurie on joint instruction. The defendants' report which was ordered was to be disclosed by 5th October 2001. The defendants did not want to give joint instructions to Dr Lurie. They instructed Dr Stern. Dr Stern produced a report, which I believe was served on 10th October, five days late. The papers do not indicate that anyone was particularly troubled about that five days.
5. So it was that on 29th October 2001 Mr Justice Hunt was holding a case management conference at which the claimant, so I understand, objected to the defendants relying on Dr Stern on the basis that he is a psychiatrist, not a psychologist, the permission given in September having related to a psychologist. Mr Justice Hunt refused the defendants permission to rely on some other witnesses who might have given evidence about clinical notes. He also did not allow them to rely on the evidence of Dr Stern. His decision is contained in this single sentence:

"In view of the history of this matter I shall not allow the evidence of Dr Stern."

6. It was suggested to Mr Justice Hunt that he may not have addressed the question of prejudice to the defendants and he said that, if he had thought there was prejudice, he would have mentioned it. An application was made by Mr Moon for permission to appeal, which was unspecific. The judge refused permission to appeal. I think it is pretty plain that he refused permission thinking that the application related to the other witnesses and not to Dr Stern. Mr Moon confirms that his understanding is the same. My understanding derives from the terms in which Mr Justice Hunt recorded his reasons for refusing permission to appeal.
7. I propose to grant permission to appeal on this matter. This was a case management decision at a late stage in the preparation for this trial, with which the Court of Appeal will not lightly interfere. It would have been particularly troublesome if this had interfered with the trial taking place; but I am told that the trial is starting today, so, provided we can accommodate the necessarily short appeal, all should be well.
8. The proposed grounds of appeal emphasise the following. First, it is said that there is no relevant difference, in the circumstances of this case, between a psychologist and a psychiatrist. Secondly, it is said that there is a very small pool of relevant experts on the particular subject of the psychological or psychiatric impact of the kind of bowel problems which the claimant has. It is said, in short additional evidence, that Dr Lurie and Dr Stern are two of a very small pool. Thirdly, it is said that Dr Lurie would have no difficulty in the circumstances in dealing with Dr Stern's report in the five weeks (as it originally was) before trial. Fourthly, it is said that the history, to which the judge unspecifically referred, appears to be that the claimant's side introduced this matter as recently as May of this year and obtained their order on 3rd September of this year.
9. In my view, the case for allowing Dr Stern to be relied on appears to be really quite strong, although I say that very conscious of the fact that I have not heard or read anything from the claimant's side on this subject. In the result, I consider that this proposed appeal has a real prospect of success and for that reason I give permission.
10. I believe that it will be possible, with co-operation, to make arrangements for the short appeal to be heard in time for the trial to proceed within its allotted period. Arrangements will therefore be made to that end.
Order: application for permission to appeal granted; costs in the appeal; respondents' brief written submissions by 4.00pm Friday 16th November; liberty to the respondents to apply.