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 POOLE)

		Royal Courts of Justice The Strand, London Wednesday 7 November 2001

Wednesday 7 November 2001

1. LORD JUSTICE SIMON BROWN: This is the claimant's interlocutory appeal from the order of Poole J given on 26 October 2001 (ten days ago), permitting the respondents to adduce at the forthcoming trial of this action the evidence of Professor David Strauss, a Professor of Statistics at the University of California.
2. The appeal is brought by permission of the judge below. To my mind the only part of his decision open to criticism is that grant of permission. In my judgment, this matter raises no true point of principle. This was a decision taken very much on the unusual facts of the case and I do not think that an appeal (as opposed to an application for permission to appeal, perhaps with the appeal to follow if it were granted) should have been inflicted on this court.The appeal arises in the context of a very heavy personal injury claim for damages. The appellant is now aged 28. Six years ago when he was 22 he sustained a calamitous accident when he fell 30 or 40 feet at a night club behind King's Cross. As a result he suffered complete paraplegia at the L1 level and a relatively minor head injury. A split trial was ordered. In the event the issue of liability was resolved and by a consent order made on 23 February 2000, judgment was entered for the appellant for 65% of the full liability value of the claim, that to be assessed against five defendants.
3. The trial on quantum was fixed for 12 November -- that is to say next week -- with a time estimate of seven days. A number of experts' reports have been served and the experts have been instructed to attend the hearing. One, we are told, is a single joint expert. The others are all instructed individually by the respective parties. The experts have been effected provided for under four different court orders made between May 2000 and January 2001.
4. The issue to which Professor Strauss' evidence is directed is the appellant's life expectancy. Until the day before the hearing on 26 October, the appellant's case had been put consistently on the footing that he enjoys a life expectancy to the age of 67.5. That has been the view of his expert spinal consultant, Mr Brian Gardner, the Clinical Director at Stoke Manderville Hospital. The respondents for their part had limited life expectancy evidence from Dr Anthony Clarke, a Consultant in Rheumatology and Rehabilitation, who regards Mr Gardner's opinion as "on the optimistic side", but ventured no figure of his own. The respondents' position generally with regard to the pleaded life expectancy of 67.5 was simply reserved.
5. On 25 October, however, the appellant's position changed. That afternoon the respondents were served with a number of supplementary statements and reports, including a further report from Mr Gardner dated 24 October, expressing the view that the appellant's life expectancy was not after all to the age of 67.5, but rather to 71.5. It was accompanied by a revised schedule of loss and damage. It was not, of course, that which precipitated the respondents' application to adduce Professor Strauss' evidence, but its relevance to the application, if not instantly obvious, will shortly emerge.
6. Professor Strauss was only instructed, it appears, in August 2001. That was regrettably late. Mr Glancy QC is entitled to say, as he does, that the respondents are open to criticism on a number of fronts. The fact is that they contemplated introducing an expert of a completely different discipline to those previously instructed, but they did not instruct him until as late as August. Even when they received his report they delayed for two weeks before sending it to the appellant. They have never explained their change of mind and matters of that sort. The respondents' solicitors have sought to explain the late instruction of Professor Strauss by reference to their having had to obtain instructions from four separate insurance clients. That, to say the least, is an imperfect explanation.
7. Professor Strauss' report dated 12 September was received by the respondents on 17 September. By letter dated 28 September, received on 3 October, the respondents copied the report to the appellant's solicitors and invited them to agree it. On 18 October, having had no response, the respondents applied to the court that they be permitted to call Professor Strauss. That was one of three interlocutory applications in the action with which Poole J had to deal on 26 October. The transcript of the hearing is before us. At page 5 appears this:

"MR JUSTICE POOLE: Well, now, we come to Professor Strauss.

MR WESCOTT: We do.

MR JUSTICE POOLE: You rightly point out that that is perhaps interlinked with an application made by the claimant today, who also wishes to produce further evidence concerned with this issue.

My thinking at the moment, and it may be less than fully mature, is that I would take some persuading otherwise than that either both sides should be permitted to perfect their life expectancy evidence or neither."

8. The matter was then argued by the respective parties. At pages 23 and 24 of the transcript appears this short judgment on that issue:

"Mr Glancy has taken me to an unreported judgment of His Honour Judge Langan QC in the case of Bethany Ruff v RVI and Associated Hospitals NHS Trust in support of the submission that Professor Strauss' contribution would be possibly controversial and of limited value. It may be anticipated that Professor Strauss' approach to these matters of statistics in the field of life expectancy will be heavily attacked at trial. Nonetheless, this is a valuable claim, and it seems to me that the evidence of Professor Strauss is potentially valuable evidence. I have considered anxiously the objections that have been made by Mr Glancy, but on balance I feel that I ought to grant the defendants' application in respect of Professor Strauss and the evidence that he is able to give.

In conjunction with that, I make it quite clear that I also grant the claimant's application in regard to the further evidence of Mr Gardner on the same question of life expectancy."

9. The judge then granted the appellant permission to call a statistician if so advised and, in addition, gave him leave to apply to vacate the trial date were he unable to obtain such evidence in the short time available and to conclude that such an adjournment was necessary.
10. On what basis does the appellant now seek to overturn this order? There are as it seems to me three central strands to Mr Glancy's argument. First, he criticises the Professor's report and submits that for various reasons it to be regarded as of at best dubious value. Secondly, he complains that it came intolerably late and following a change of mind on the part of the respondents' solicitors for which no explanation has been vouchsafed, and that to admit it at this stage in disregard of a number of earlier orders for directions would undermine respect for court orders in general. Thirdly, he submits that the decision to admit the evidence as late in the day as this jeopardises the imminent trial date, and will both lengthen the hearing and disproportionately increase costs.
11. I will consider these arguments briefly in turn. In relation to the value of the Professor's report, Mr Glancy points, first, to the judgment of Judge Langan QC in Ruff, to which Poole J referred in his brief judgment. Criticisms are there to be found of the Professor's evidence, first, what Judge Langan called the "philosophical criticism" that the Professor focuses on the cohort to which a claimant belongs rather than to the claimant individually; and secondly, that he unacceptably seems to down-play the role of the clinician. Ruff, however, we are told, is subject to appeal. In any event, it seems to me that that sort of criticism could provide no basis for refusing to admit such evidence in future cases. Mr Glancy further points to certain doubts expressed by Mr Gardner about the Professor's objectivity and neutrality, and indeed generally he refers us to Mr Gardner's critique of the Professor's evidence in a short report dated 11 October.
12. For my part I do not find this aspect of Mr Glancy's submissions in the least convincing. In the first place, as indeed the respondents' skeleton argument points out, Mr Gardner has himself endorsed the relevance of the American database which is used in Dr de Vivo's calculations -- the very same database (albeit in an expanded form) which underlies the Professor's report. Secondly, Dr de Vivo appears to approve of Professor Strauss' methods. Third, and to my mind most importantly, it will be open to the appellant and those whom he instructs, to demolish the Professor's evidence if indeed it is as transparently worthless as is suggested. Meantime, the judge was to my mind perfectly entitled to regard it as "potentially valuable evidence".
13. Second, the evidence was served very late, despite there having been a succession of court orders up to January 2001 by which directions were given in respect of expert and other evidence. That the application was made very late in the day, and indeed inexcusably so, is obvious. That was rightly recognised, and the subject of express apology, by the respondents before the judge below.
14. In all these cases, however, there is a balance to be struck between sometimes conflicting interests. So much indeed appears even from those pre-CPR authorities upon which principally Mr Glancy relies, namely Otto v Keyes (1997) PIQR 120 and Croft v Jewell (1993) PIQR 270. I take two short sentences from the headnote of the former:

"If parties are free to disregard successive court orders, then respect for orders of the court in general is undermined. At the same time the overriding principle is that justice must be done."

15. That was the balance which the judge had to strike here. Having "considered anxiously" the objections made by Mr Glancy, he granted the application expressly "on balance". Given that the appellant, too, needed the court's indulgence to adduce further evidence from Mr Gardner by which the appellant's life expectancy was being increased by four years, it is perhaps the less surprising that the balance was struck the way it was. As the judge had earlier observed in the passage I have already quoted from the transcript:

"I would take some persuading otherwise than that either both sides should be permitted to perfect their life expectancy evidence or neither."

16. The third point goes to the difficulty the appellant is now experiencing in obtaining his own statistical evidence in the short time available, and the possibility therefore that the forthcoming trial date will be lost, with all the inconvenience and delay which that would involve. We are told indeed that there is a possibility that just such an application will be made to Poole J tomorrow.
17. There are various points to make about that. First, if Professor Strauss' report is as vulnerable to attack as the appellant contends, then it may well be that another statistician need not be instructed to point that out. But in any event it is difficult to resist the conclusion that if the appellant is to be entitled to seek to improve his own evidence as to life expectancy at this stage, so too should be the respondents. One reminds oneself that the respondents' evidence in this regard was made available to the appellant on 3 October, whereas Mr Gardner's additional evidence was submitted to the respondents only on 25 October. But perhaps the real point here is that if, in truth, justice were to require an adjournment of this trial, then no doubt the application will be made and will indeed be successful.
18. I remind myself of the approach which this court must now take to appeals of this nature. CPR 52.11(3) provides:

"The appeal court will allow an appeal where the decision of the lower court was --

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."

19. There is no question here of there having been any procedural or other irregularity in the proceedings below. Mr Glancy has therefore to say that the judge's decision was "wrong". As Brooke LJ pointed out in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, 1317:

"The epithet 'wrong' is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said at page 652:

'Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as "blatant error" used by the President in the present case, and words such as "clearly wrong", "plainly wrong", or "simply wrong" used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.'"

20. That principle applies most particularly to an appeal of this nature, par excellence an appeal concerned with an issue of case management. The contention that Poole J, a most experienced judge in this class of case, in the exercise of his discretion here "exceeded the generous ambit within which a reasonable disagreement is possible" is to my mind impossible. I criticise him only for having granted permission to appeal and put this court to the very considerable difficulty of having to accommodate the appeal at short notice.
21. I am not suggesting that every judge would have exercised his discretion here necessarily in the same way, although I have already pointed to the circumstance that the appellant too was seeking to adduce further evidence on the self-same issue. I recognise that Professor Strauss' evidence is indeed in a different discipline -- one which had not previously been involved in this litigation. But the mere fact that another judge might have exercised his discretion differently falls far short of providing a proper basis for this court to intervene. For my part I would not do so. I would dismiss the appeal.
22. LORD JUSTICE BUXTON: If I had borne the burden that Poole J bore of determining the matter that came before him, I am not certain that I would have come to the same decision as he did. I might have given more weight than he did to the points very forcibly put before us by Mr Glancy QC, as they were put before him. But I form that very tentative approach to the case upon a much less extensive and direct acquaintance with it than that which was enjoyed by Poole J. Quite apart from that point, and in any event, my view, or the view of this court, on the merits of the application is not the test that has to be applied.
23. The test that has to be applied is to be found in many cases, note least in the judgments in this court in Croft v Jewell, to which my Lord has already referred, a case that was much pressed before us by Mr Glancy. On page 273 of that report Rose LJ said:

"It seems to me that appeals of this kind, that is to say from interlocutory orders shortly before trial, should be discouraged by this court. If authority for that view is needed, it is to be found in the speech of Lord Templeman in Ashmore Incorporation at Lloyds [1992] 1 WLR 446, 453, and the judgment of Balcombe LJ in Charm v Murex (CA, unreported, 7 April 1993. For my part, I am prepared to approach this appeal on the basis that it should not succeed unless the judge's decision is shown to have been plainly wrong."

24. As my Lord has demonstrated, judged by that test it is quite impossible to say in this case that Poole J's decision was "plainly wrong", however much other judges might have approached the matter differently.
25. That is necessarily the end of this appeal. It would however be wrong for anyone to deduce either from the decision of Poole J, or from the fact that that decision is not to be overturned by this court, that the floodgates are in any way being opened to departures from the rules as to the late service of evidence, as undoubtedly occurred in this case, or to the introduction into cases at a late stage of new issues, or least new approaches to existing issues.
26. The question in every case will be one of balance. The facts in the present case were unusual, not least because, as my Lord has said, both sides sought to improve their position on the central issue of life expectancy and to do so at a late stage in the process. In those circumstances it is for the trial judge to balance the justice and efficiency of acceding to any order that is sought before him. The facts in this case are particular and certainly do not support the fear put before us by Mr Glancy that it could legitimately be deduced in general terms from anything that happened in this case that the rules and the normal procedures, particularly the procedures now introduced in respect of expert evidence, are no longer going to be applied by the courts. They clearly are, but there will be some cases, of which in the estimation of the trial judge this was one, where justice and the fair trial of difficult and very important issues requires a wider range of evidence to be considered than was originally available in the exchanges between the parties.
27. As I have already indicated, like my Lord I would dismiss this appeal.
ORDER: Appeal dismissed with costs, such costs to be determined in due course.