England and Wales Court of Appeal (Civil Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1757.html
Cite as: [2001] EWCA Civ 1757

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		Neutral Citation Number: [2001] EWCA Civ 1757
		B3/2001/1724

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(DISTRICT JUDGE RAWLINSON)

Royal Courts of Justice
Strand
London WC2A 2LL
Friday 9 November 2001

B e f o r e :

LORD JUSTICE LATHAM
____________________

	KATHLEEN RAWLINSON
	Claimant/Respondent
	- v -
	MATTHEW COOPER
	Defendant/Applicant

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

MR M TURNER QC (Instructed by Messrs Forbes, Blackburn, BB1 8DA) appeared on behalf of the Applicant.
The Respondent did not attend and was not represented.
____________________

HTML VERSION OF JUDGMENT
____________________

LORD JUSTICE LATHAM: This is an application for permission to appeal a decision by Mitting J given on 19 July 2001, in which he allowed an appeal from a case management decision by Deputy District Judge Ashton.

Before the matter came before District Judge Ashton, there had been case management orders which had provided that the evidence in this personal injury action relating to life expectancy should consist of two particular reports. There is no need for me to identify them further.

Counsel acting for the claimant was concerned about the extent to which those two reports adequately dealt with the life expectancy issues. An application was then made for the case management decision to be varied to provide for a further report from a Dr Gardner, a consultant in spinal injuries at Stoke Mandeville. District Judge Ashton refused that application. He had seen the two expert reports from Dr Walton and Dr Burt and came to the conclusion that the question of life expectancy would depend upon a variety of factors which, at the end of the day, would largely be a matter of speculation which, as he put it, would not be assisted by introducing the assessment of more experts. He did not have an opportunity to see or read the report from Dr Gardner, although it was, as I understand it, in existence at that time.

When the matter came before Mitting J, the report from Dr Gardner was made available to the court. As I understand it, from what Mr Turner on behalf of the defendant/applicants has submitted, the contents of the report did not form any part of the argument which was considered by the learned judge.

His decision in allowing the appeal and ordering that the report of Dr Gardner should form part of the material for trial, was based on his reading the views of Dr Gardner after he had retired to consider the report. In his judgment, the report added to the statistical information which had not been contained in the previous two reports. He therefore considered that there was useful material in Dr Gardner's report which could justify the original order in relation to experts being varied.

Before me, Mr Turner has submitted that the approach of the judge was at least arguably flawed because he had not appreciated that the report was not before District Judge Ashton. That is important because Mitting J took the view that District Judge Ashton was wrong in his assessment of the value of the contents of the report. Accordingly, he considered that he was entitled to exercise his discretion afresh.

As we now know, the report was not before the district judge, and the district judge could not therefore be said to have made any mistaken assessment of the report. It follows that consideration needs to be given to the extent to which that vitiates the decision of Mitting J, bearing in mind that he was dealing with the matter on the basis of fresh material without there having been, as I understand it, any appropriate application for fresh material to be put before him for the purposes of the hearing.

It may or may not be that these turn out to be merely technical issues, but it seems to me that they justify the grant of permission to appeal.

Order: Permission to appeal granted. Costs to be costs in the appeal.

(Order does not form part of approved judgment)

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