England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge McKenna)

		The Royal Courts of Justice The Strand London Monday 11 February 2002

Monday 11 February 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal against the decision of His Honour Judge McKenna, sitting in the Birmingham County Court, dated 28 September 2001. The case before the judge related to the assessment of damages. The appeal concerns one particular element of the assessment, which was the question of any psychiatric harm suffered by the applicant arising out of the subject-matter of the case.
2. The history of the matter is unusual, to say the least. There was a report from a doctor, Dr Milner, which was included in the bundle of evidence, together with a letter written by the doctor answering questions posed to her by the applicant's solicitors. That evidence was before the court as the only medical evidence -- the doctor was not called -- and the matter could have been anticipated to proceed smoothly. However, during the course of the hearing it became apparent that there were two different versions of Dr Milner's letter answering the solicitor's queries. The letter contained within the bundle, which was signed by Dr Milner, said at paragraph 2:

"Mr Gough is suffering from mental and behavioural problems due to drug and alcohol."

3. However, there was a different version of the letter which it had been the applicant's solicitors' intention to include within the bundle, which had not been included, which read:

"Mr Gough is suffering from a depressive disorder related to the accident as well as mental and behavioural problems due to drug and alcohol use."

4. Clearly those two assertions were dramatically different and, in particular, were crucially important to the outcome of the case.
5. When it became apparent that there were two versions, the applicant was in no position at the time to offer any explanation to the judge as to how that had come about. The judge made it clear (at page 79 of the transcript, page 200 of the bundle) that there was no way that he would entertain an adjournment, at the late stage when these matters became apparent, for either party to call Dr Milner. He asserted, "so we have to deal with it with what we have got." No application of any kind was made to him. It seems to me perfectly obvious that counsel would have been deterred from making an application for an adjournment to call Dr Milner; but if there was an explanation as to how these documents had come to be in existence in two different forms, then there was no reason why that could not have been advanced, and if that required some short time for further investigation, no doubt the application could have been made.
6. The explanation is now apparent, and is apparent for the first time since I considered these papers as a written application for permission. It transpires that the history of the matter is that, having received the medical report, the solicitors acting for the applicant wrote to Dr Milner on 10 October 2000. One of the questions they posed was in the following terms:

"In the conclusion within your report dated 26th September 2000, you state that this accident has caused Mr Gough to suffer significant problems that have affected his life irreversibly. Would you please clarify whether there is any specific psychiatric disorder/illness with which Mr Gough is suffering as a result of this accident."

7. That was the question answered initially by the doctor in the way to which I have referred, with no reference to him suffering from a depressive disorder related to the accident.
8. The solicitors, clearly concerned by that advice contained in the letter, which bore the date 13 October, telephoned on 18 October to Dr Milner. A telephone attendance note shows that Dr Milner indicated with regard to this particular matter that:

"... this should have read that he is suffering from problems associated with drugs and alcohol and depressive disorder as a result of the accident. She will get her secretary to amend this and send straight out to me."

9. That explains how it came about that the second version was sent.
10. It seems to me that what should then have happened is that these matters should have been disclosed to the proposed respondent's solicitors at that time, indicating that there had been two different versions. In fact only one version of the letter of 13 October was sent, as if that had been the only version. It was the one favourable to the applicant and not the one that eventually found its way into the trial bundle.
11. Thereafter, the solicitors acting for the proposed respondent decided that they would agree this evidence and therefore the doctor was not needed to give evidence. What is not clear is whether they would have taken that course if they had known that the doctor had said very different things, albeit by way of addition, in the two versions of the same letter.
12. In those circumstances it is submitted that there is a ground of appeal relating to the judge's dealing with these matters. It is said that the judge, if he found this to be of crucial significance, should have permitted an adjournment of the matter so that this could be sorted out.
13. The information that is now provided to me makes it clear that the circumstances in which there were two letters of the same date with differing content was something within the knowledge of the solicitors then acting for the applicant. The applicant now would seek permission to refer to this evidence to explain what had occurred and in that way to deal with criticisms that were made of the fact that there were two different letters.
14. I find this in some respects a difficult matter. It does seem to me on the one hand that the conclusion reached by the judge probably was wrong; that probably this was a genuine mistake by the doctor, corrected by the doctor, and that in justice the applicant should have had the opportunity of putting this evidence before the court. On the other hand, the fault in this case lies in large measure with the solicitors acting for the applicant. First, I believe that they, in a more open fashion, should have made clear at the time that this was indeed a corrected report and that there had been a different version of it, and I am critical of the failure to disclose the first version. Secondly, when they came to court they should have been in a position to provide answers to the judge which might very well have caused him to take a different course. They were not. The solicitor dealing with the matter was on maternity leave at the time; the person at court was unaware of these matters; and -- which does not suggest efficiency on their part – that person did not have the correspondence file at court.
15. In those circumstances I can see an argument that the further evidence explaining what had occurred certainly does not meet the test set out in Ladd v Marshall. However, if one has regard to the overriding objective, it may be that the evidence ought to be admitted. By a narrow margin -- I make it clear it is only by a narrow margin -- I have decided that these are matters which ought to be considered by the court and the court ought to form its view as to whether or not in the circumstances justice required, when something wholly exceptional took place, a better opportunity to investigate what occurred.
16. For that reason, and without giving undue encouragement to the applicant, I will grant permission.
ORDER: Application allowed