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 HIGH COURT
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
(Mr Justice Morison)

		Royal Courts of Justice Strand London, WC2 Thursday, 28 November 2002

1. LORD JUSTICE PILL: This is an application for the disclosure of further medical records prior to the hearing of the appeal in this case. The case is a personal injury case which was heard in Cardiff by Morison J. He gave judgment for the claimant, Kate Louise Stratton, on 6 March 2002 in the sum of £12,888. The trial was on quantum only, the defendant having agreed to pay an agreed proportion of damages awarded. In the damages claim, the defendant very substantially succeeded, in that his medical evidence was preferred and the dire consequences which on behalf of the claimant it had been submitted had resulted from the relevant accident had not occurred.
2. The accident had happened in February 1995 when the claimant was 19 years old. Permission to appeal against the finding of the learned judge was given in this court following an oral hearing on 11 July 2002.
3. The application arises out of an anonymous note handed to leading counsel for the defendant, Mr Collender QC, while closing speeches were being made on 25 February 2002. The evidence, including medical evidence, had been heard over a period of four days. The letter was in an envelope marked "Urgent". I do not find it at all surprising that it was handed to Mr Collender while he was on his feet. Presumably it came from the court's mail office via an usher who gave it to Mr Collender either directly or through his instructing solicitor. Either way would have been entirely proper.
4. There had been an issue in the case as to whether the claimant had suffered from epilepsy and, if so, whether that had resulted from a relevant accident. In relation to that, the judge stated at paragraph 22:

"In his second report, after the reported epilepsy attacks and bouts of vomiting, based upon an interview with Ms Stratton and her parents on 29 June 2001, Dr Bird was doubtful whether she was experiencing seizures rather than pseudo seizures."

The judge preferred the evidence of Dr Bird. What emerges from that statement, in the judge's reasoning, is that the attacks to which the judge referred were a relevant, and indeed important, issue in the case, and the case in part turned on the judge's preference for the evidence of Dr Bird that these were not seizures properly so called. Dr Bird plainly was on alert to considering the attacks because his opinion, accepted by the judge in the event, inevitably turned upon the nature of the attacks and the evidence about them - against, of course, the background of the general medical history.

5. The letter read:

"Dear Mr Collender.

With reference to the case you are currently working on at Cardiff County Court Stratton v Brown.

Just in case you are not aware, Miss Stratton a lesbian, has on more than one occasion collapsed at the Cardiff gay club 'Exit' in Charles St. On each occasion an abulance [as written] was called and she was taken to emergency admissions at the Heath Hospital. Ostensibly she was admitted suffering from a suspected 'fit'. But I can tell you on good authority that this 'fit' was brought on by taking the drug Ecstasy. This should be easy to confirm because the last occasion was fairly recent."

Mr Collender decided to take no action upon receipt and reading of that letter. Plainly he was in a difficult position in that the judge and all concerned were anxious to complete the trial. Evidence had been completed and inconvenience would have been caused if Mr Collender had taken a course other than the one he did, which was to take no notice of the note. He said, "My Lord, I am not sure that it is appropriate for me to say anything more about it." Plainly he decided, without further ado, to say nothing more about it. Speeches proceeded, and a week or so later judgment was given.

6. Following the grant of permission to appeal, those advising the defendant have made this application to the court. They seek to investigate by reference to the A&E notes the suggestion made in the anonymous letter. What is sought is a direction that in some way -- the procedure could no doubt be devised -- the parties' medical experts should have access to those notes. Mr Collender submits that justice requires that before the appeal is heard this aspect of the case should be investigated. It could bear upon the decision of this court. If the anonymous note is substantiated, in the sense that evidence of drug-taking emerges, it will make it more difficult for the claimant to succeed in her attack upon the medical evidence. Reference has been made to the test in Ladd v Marshall, which Mr Collender submits should be flexibly applied.
7. There is undoubtedly an interest in finality in situations such as this. It is a public interest. But it is also an aspect of justice that, each party having its proper and sufficient opportunity to present its case to the court at trial, it is not just, generally speaking, that, if a party fails to do so, a further attempt should be allowed. Mr Brooks for the claimant submits, first, that action should have been taken at the time, on receipt of the note, if action was to be taken at all; and secondly and in any event, that the issues being as they were, those advising the defendant should have made enquiries as to how the fits had arisen, it being an obvious aspect of the case, and all relevant information on that subject should have been sought.
8. Undoubtedly there were very full investigations in this case. It is a case in which the damages could be very substantial if the claimant were to succeed. Very experienced medical witnesses were properly instructed and full investigations were made; one would have expected them to be as full as was necessary in the circumstances and having regard to the issues. I have referred to the issue which the judge has highlighted at paragraph 22 of his judgment.
9. In my judgment it would not be just to permit a further opportunity to the defendant to investigate further medical records. A very broad order was made by His Honour Judge Graham Jones upon an interlocutory application for disclosure and inspection of documents. Arrangements were properly made and the documents were considerable in quantity. As I indicated earlier in this judgment, I do not find it acceptable that an application is now made for the A&E records when it could have been made before the trial.
10. To illustrate the point, I put to Mr Collender a note in Dr Bird's second report of 13 August 2001, giving additional information from hospital records (page 66 of the bundle):

"24.12.2000

Apparently taken to the Emergency unit having had a convulsion."

Mr Collender has referred, although the court has not asked to see it, to a subsequent reference from the hospital to the general practitioner which merely referred to "convulsions". Mr Brooks tells the court (he was present at the trial) that there were other admissions of the claimant to hospital following incidents in the town centre. She was a young woman whose social life continued. Dr Bird had had the opportunity to interview her parents and to make all reasonable enquiries about her lifestyle.

11. If the point is now taken, I am unable to understand why, before the trial, enquiries were not made as to the admission records at the A&E Department of the hospital. The best evidence as to the condition of the claimant and as to the cause of the episode would, on the face of it, come from those who first treated her on admission. It is highly unlikely there would not have been notes of that admission. It is inconceivable that those conducting these enquiries were not aware that there would have been such notes, and yet, in spite of the very broad authority given, no attempt to obtain them was made. I have concentrated on that incident: it appears there were others too, but for the purpose of the conclusion I reach that, against the general background to which I have referred, is sufficient. This was not a case where it can reasonably be said that the evidence could not reasonably have been available at the trial if reliance was sought to be placed on it.
12. Secondly, I am very reluctant to be critical of Mr Collender for the decision he took at the trial. He has been eloquent as to the inconveniences which might have been caused had he raised the matter with the judge. Clearly it would not have been right to have handed the letter up to the judge there and then, but I have no doubt that this judge would have granted a short adjournment, had Mr Collender sought it, to take instructions and confer with the other members of the defendant's team as to what course should be taken. There would have been inconvenience; how great it was can only be speculation. Mr Brooks makes the point that, in the context of this case and the distances involved and enquiries already made, records could readily have been obtained.
13. While I understand Mr Collender's decision, he having made it, it is in my judgment not open to the defendant to come to this court, permission to appeal having been given, to take a step which could have been taken at the time. Mr Collender says that it would have been a curious feature to investigate it more at the time. I do not accept that. This is a situation which anyone familiar with personal injury litigation will almost certainly have met. At a late stage in a trial, counsel is instructed that fresh matters have arisen. Difficult decisions have to be taken by counsel, but it is for counsel and the legal team to grasp the nettle, in my view, and that is what should have been done in this case. The matter could have been considered. I would expect the judge to have been prepared to consider the letter himself without necessarily accepting it in evidence and, having regard to the judge and the parties involved, I would have expected a solution to have been achieved, if not by agreement then by way of direction by the court. What is not acceptable, in my judgment, is for a party to take the course that was taken here and then to come before this court and make the application which is made. That is another aspect of saying that this evidence could have been made available at the time; at any rate steps could have been taken at that stage to seek its production.
14. The further point is made by Mr Brooks that in the context of very thorough enquiries made into the medical history the relevance of this anonymous letter is doubtful. I regard it as a point which also has force and is related to the first of the points that I have already considered. It is speculation as to whether this was the work of a troublemaker or whether there is genuine evidence behind it. The court considers cases on evidence. If a trial can be disrupted by anonymous letters, then the court should guard against the possibility of their being either inaccurate or even worse. In the context of the enquiries made in this case, the anonymous letter, as a potential piece of fresh evidence or as a guideline to further enquiries, cannot be given the significance that other late-appearing evidence might have been given.
15. I would have refused this application on either of the first two grounds I stated. It is not in my view in the interests of justice -- and the court is concerned to do justice between the parties -- to permit the defendant in present circumstances to have the opportunity which by his advisers he seeks. Taken together, the two points, in my judgment, are compelling and because I take that view, I would refuse this application.
16. I would add this. When granting permission to appeal, Sir Martin Nourse and I fully acknowledged the difficulties which the claimant will have, for the reason stated in the short judgment given upon the grant. The claimant should not take comfort from anything said this morning, which does not alter the position as then understood to be. I would, however, make a further point. If the appeal were to be successful, then the likely outcome is a retrial. Of course I do not prejudice anything which this court might decide but, having regard to the issues raised on behalf of the claimant, it would seem that either the appeal will fail or, if it does not, then the likely course is a rehearing. If that were to be the case, then it would be open to the parties to call such evidence as they see fit and nothing which has occurred today, and nothing which I have said in this judgment, should be taken as an indication that if there were to be a retrial I would consider it unjust that all evidence be before the learned judge conducting the retrial.
17. For the reasons I have given I would refuse this application.
18. LADY JUSTICE HALE: I agree, and would specifically associate myself with the distinction drawn by my Lord, Lord Justice Pill, between what evidence it is appropriate for this court to receive at the hearing of an appeal (which under the rules is simply a review of the decision made by the trial judge) and what it might be appropriate for any court holding a rehearing of this case to receive in evidence at that stage.

ORDER: Application refused. The respondent to pay the claimant's costs of the application, to be subject to detailed assessment.

(Order does not form part of the approved judgment)