England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE GEDDES)

		Royal Courts of Justice Strand London, WC2 Thursday, 10th October 2002

Thursday, 10th October 2002

1. LORD JUSTICE MANCE: This is an application for permission to appeal, for permission to rely upon fresh evidence and for an extension of time to make the application for permission to appeal. The applications were refused by the single judge, who said simply:

"I am not persuaded that this satisfies the test for a second appeal. It does not raise any important point of practice and I am equally of the view that there cannot be said to be a compelling reason for allowing a further appeal."

2. It is frankly acknowledged by Mr Bishop for the applicant that his clients face considerable obstacles, first, because of the factors identified by the single judge and, second, because the background to this matter is that it is a case management appeal. In that regard, however, the position is subject to this observation, that the original case management decision was made by Deputy Master Chism and was in the applicants' favour. The applicants were seeking permission to instruct a further expert. They were doing so in unusual circumstances in that each side had, pursuant to modern procedures, instructed their own consultant medical expert, and those consultants had not only reported but had reached a joint medico-legal report in May 2001. The application was to involve a yet further expert because it was suggested that certain aspects of the existing evidence, particularly aspects relating to the applicants' own expert, were unsatisfactory and raised questions which merited examination by a further expert.
3. The Deputy Master in very short reasons accepted that proposition, and, in view of the court's natural wish (as he expressed it) to hear the fullest, best possible evidence, gave permission. The matter was one which he felt was sufficiently important to merit permission to appeal, so the matter came before His Honour Judge Geddes, who reversed the Deputy Master on 22nd April 2002. He had before him a series of forcibly put grounds which he substantially accepted. In particular, he rejected a suggestion that because the claimant had in the course of the proceedings involved more than one expert that would constitute any reason why the defendant, the present applicant, should find it easier at this late stage to involve another expert. Before us Mr Bishop has not realistically suggested that the applicants' case gains any assistance from the fact that, as a matter of history, the claimant, for whatever reason, did involve a second expert. The actual reason was expressed as being that the first expert might have been embarrassed. It is not necessary to go into why Mr Bishop says that may be open to question because, as I say, he does not really suggest that the point has any ultimate significance.
4. His Honour Judge Geddes then had before him the obvious point that there had been a jointly instructed medical report and the matter had gone a considerable way towards preparation for the trial. Third, a point was made to him that the trial would be delayed. Fourth, it was said that the only reason for the application was that the applicants (the defendants) had changed solicitors. No doubt as a matter of history that is the precipitating cause, but the real question is, perhaps, whether the previous medical evidence should have caused the previous solicitors to review it more closely. If as a result of their failure to do so there is a criticism potentially of them as well as of the previous expert, that does not seem to me to add greatly to the problems faced by the applicant, subject, of course, to the point about delay. Fifth and importantly, it was said that the claimant would be severely prejudiced because it was anticipated that the new evidence would go to the possibility of intervening negligence on the part of the National Health Service which might have to be joined. It was said that there would be potential problems about that and that in any event it would delay the trial. The problems would be by way of limitation. Finally, it is said that the Deputy Master gave undue weight to the contention that the quality of the applicant's evidence was poor.
5. The Circuit Judge accepted a number of those points, as I have said. In particular he was influenced by the conclusions to which he came as to the strength of the criticisms of the existing expert, as to the potential prejudice that would be caused if there was a fresh expert and as to delay. It is right to say, however, that he confined his conclusions relating to delay to the problems that would arise as a result of the potential involvement of the National Health Service as a third party. In other respects he indicated that he did not think there would necessarily be delay, at least if the new expert agreed with the existing doctor, although, of course, in that situation the instruction of a new expert would have been unnecessary.
6. The matter comes before us now and, I must say at the outset, it seems to have substantially changed in character in a number of respects primarily connected with the application to admit fresh evidence. When the matter was before the Circuit Judge -- and this is a point that he raised -- there was no prima facie evidence that the existing joint report was wrong. He said that that was perhaps surprising, and one can understand that. But we now have before us a report from the doctor for whom leave was given by the Deputy Master and who was, therefore, active before the appeal came on before His Honour Judge Geddes. Unfortunately that report was not available in time for His Honour Judge Geddes to have it put before him, but it is now before us and it does indicate that there is a very real point of difference.
7. Further, as to causation the point of difference (if I may encapsulate it) relates to the question whether it was a consequence of the original action that there took place an arthroscopy, which otherwise would not have been necessary at all, in the course of which infection was inadvertently introduced which ruined a subsequent hip operation. The alternative view, which is now supported by new evidence, is that the undoubted infection was simply an unfortunate consequence of the hip operation that the claimant was probably in any event going to have to undergo, even if only somewhat later than she in fact underwent it. On that basis, it is submitted by Mr Bishop that this case would simply be an acceleration case. The very sad problems which the claimant has suffered as a result of the hip operation would at some point have been suffered in any event. This is not a case, he submits, where they can be attributed to the original accident, in the same way as if they had resulted from an infection introduced as a result of an arthroscopy which itself followed from the original accident. Mr Bishop submits that makes an enormous difference in financial terms. It carries a five figure matter to a six figure matter. He put figures of £20,000 to £50,000 (perhaps as a guesstimate) on the one basis, and £500,000 to £1 million on the other. So, on that basis, it would be a substantial matter and the success or failure of this application could make a considerable difference.
8. The other matter which we have had put before us is a witness statement of a solicitor to the applicant, a Ms Innes Wood, who has given a very comprehensive and, I would say, impressive account of her activities since her involvement and the steps she took to try and have Mr Rushton's report available in time for the hearing before His Honour Judge Geddes; and on the basis of that witness statement it appears to have been in no way her fault, indeed bad luck, that the report from Mr Rushton could not be put before His Honour Judge Geddes.
9. When one looks at the current position one sees that a number of the concerns raised before, and accepted by, His Honour Judge Geddes have disappeared. There is now strong prima facie evidence of a very arguable contrary view to that of the joint report. There is now -- and this is a further point that arises from Mr Rushton's report -- no question of any medical negligence claim against the National Health Service or any delay on that account. Those seem to me to be very important points. There is also strong evidence explaining how Mr Rushton's report was not put before the judge.
10. The criticisms of Mr Rossouw are matters about which I do not think it is necessary to say a great deal. We have been taken through them. They were criticisms which Deputy Master Chism thought had something in them. The correspondence is recent and remains incomplete in the sense that one does not have all the letters to which Mr Rossouw is answering. On the face of it, it does seem to me that Mr Bishop has shown some reason to be concerned about Mr Rossouw's concentration on the issues of consistency as well as about his accuracy in examining all the material before him and in relating it, or cross-relating it, to what he had previously been told by the claimant before he saw some of the material, such as medical records. I do not go into that any further, but it seems to me that there was some material supporting Deputy Master Chism's view.
11. The court is, of course, reluctant to allow a joint report to be reopened in the manner proposed by the applicants. It requires a strong reason. We have to consider whether the present case raises any important point of principle or practice or some other compelling reason. I agree, without hesitation, that it raises no important point of principle or practice, although Mr Bishop has sought to suggest, with realistic faintness, that it might do.
12. On the other hand, I have come to the conclusion that there is a sufficiently compelling reason for an appeal: it seems to me that there is a very real prospect of success. That is a relevant factor. It seems to me that matters have very substantially changed from the way they appeared before His Honour Judge Geddes. It is also of some background relevance that, although this is a second appeal, it is a case where His Honour Judge Geddes was himself disagreeing with the case management decision of the Deputy Master. In all the circumstances, I therefore consider that the test for permission to appeal has been satisfied.
13. With regard to the application to rely on fresh evidence, it seems to me that that too should be granted in the circumstances set out in Miss Innes's witness statement, since, as I have said, they explain fully and satisfactorily why it is that Mr Rushton's evidence was not available in time.
14. That leaves the application for an extension of time, in which connection Mr Bishop has referred us to Practice Direction 52/PD 5.3, which reads:

"Where the appellant's notice includes an application for an extension of time and permission to appeal has been given or is not required the respondent has the right to be heard on that application. He must be served with a copy of the appellant's bundle. However, a respondent who unreasonably opposes an extension of time runs the risk of being ordered to pay the appellant's costs of that application."

That is a Practice Direction which is not perhaps easy to reconcile with normal practice, at least when dealing with matters on paper, and I am not conscious of having had it referred to me previously. The respondent has been served with a copy of the appellant's bundle but has not been invited to attend today. If (which I would doubt) the Practice Direction applies now that we have given permission to appeal, its terms cannot be observed today.

15. Mr Bishop suggests that the right course is simply to give liberty to the respondent to reopen the matter at the hearing of the appeal, if we give permission to appeal. I concur with that suggestion. In any event the respondent would have the right to apply to set aside, but I think that should be done at the hearing of the appeal to avoid yet another application, if the respondent indeed wishes to seek to try to do so.
16. For my part, therefore, I would give permission to appeal, I would give permission to rely on fresh evidence and I would also grant the extension of time for the application for permission to appeal, leaving any further application in that regard to be made at the hearing of the appeal.
17. LADY JUSTICE HALE: I agree.
Order: Application allowed. Costs reserved. Time estimate of one day.