England and Wales Court of Appeal (Civil Division) Decisions

THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE NICHOL)

		Royal Courts of Justice Strand London WC2 Tuesday 18 June 2002

1. LORD JUSTICE BROOKE: This is an appeal against an order of Judge Nichol made on 5 December 2001 when he dismissed an appeal by the claimant against the decision of Mr District Judge Sankey dated 12 September 2001. In the context of the hearing before him Judge Nichol also dismissed an application, which had been informally made, for permission to adduce new evidence on the appeal. This is therefore a second appeal to this court, which is governed by the rubric set out in an Act of Parliament that the Court of Appeal should not entertain a second appeal unless it raises an important point of principle or practice or there is some compelling reason for the Court of Appeal to hear it. Tuckey LJ gave permission to appeal, although he did not identify in his directions the important point of principle or practice that he considered the appeal raised.
2. The restriction on second appeals is important because Parliament has made it clear that it wishes pretrial disputes in civil litigation to be dealt with, on the whole, at a level lower than this court. It may be that judges in the courts below may make orders which judges in this court would not have made, but the philosophy of the Civil Procedure Rules is to confirm and bolster the authority of the judges in the lower courts. One of the great weaknesses of the procedural regime before April 1999 was that ancillary litigation used to drag on between district judge and circuit judge and between circuit judge and this court. The authority of the judge who made the original order was constantly being undermined. In my judgment in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, I stressed that the effect of the new CPR appellate regime was that the decision of the original judge would assume far more importance than it did under the previous regime where the judge in the lower appeal court exercised his discretion all over again.
3. Mr Ahmed was a 46-year old bus driver. He fell over and injured himself in the central bus depot in Birmingham on 1 October 1987. He says he slipped on a patch of oil, which he contends was negligently left on the floor in circumstances for which his employers were liable. He returned to work after four weeks, but he experienced pain in his lower back, thighs and right leg. He was unable to work overtime. In May 1990, two and a half years after the accident, while he was driving a bus he suffered a loss of power in his right leg. Later that day he was taken to hospital complaining of excruciating back pain which extended down to his right leg and foot. Since then he has had a troublesome time. He has suffered a good deal of pain, he has been in and out of hospital, he has had periodic epidural injections and he has been unable to work.
4. Mr Ahmed instructed Messrs Stanley A Coleman and Hill, the defendants in the present proceedings, but they brought no proceedings on his behalf within the three year primary limitation period. In the years after that he consulted two other firms, and he embarked on the present action claiming damages for solicitors' negligence on 24 September 1996, just under six years after the limitation period for his original proceedings expired. Although this was a solicitors' negligence action, the solicitors who then had the carriage of his action exhibited to his particulars of claim four reports which had come into existence in the early years after things went wrong in May 1990: a report of a Mr Schapira; a report from a consultant neurologist, Dr Richard Corston; a report from Mr Matthew Kurian, a senior registrar in psychiatry; and a short letter from Dr Wanklyn, who is a senior house officer.
5. The particulars of claim were dated 24 September 1996. On 30 October 1996 the defendants served a defence. They joined issue on the question whether Mr Ahmed's former employers were liable at all, alternatively, whether he would be found guilty of contributory negligence in relation to the accident. They contended, among other things, that he had no reasonable prospect of success in his claim for damages.
6. On 5 May 1998, in the Reading County Court, District Judge Burgess made an order granting the plaintiff leave to adduce evidence from four medical experts; imposing a timetable for the onward carriage of the action; directing that the plaintiff serve within eight weeks of the date of his order a further medical report; and transferring the action to Birmingham for the hearing alone. He also directed that the action should be set down at Birmingham at the first available date after 1 August 1998 with a time estimate of three days.
7. The history does not record what did or did not happen following transfer to Birmingham. It is clear that the plaintiff did not comply with that order and at some stage in the intervening history he changed his solicitors.
8. On 28 August 1999, the plaintiff went to see a consultant orthopaedic surgeon, Mr Stuart Brooks. Mr Brooks had seen Mr Ahmed the previous year when he had been referred to him by a GP requesting a back pain assessment. Mr Ahmed came back of his own accord to see him in May 1999 asking him to prepare a medical report. He indicated that he was not represented by a solicitor. In those circumstances Mr Brooks examined Mr Ahmed, after obtaining the appropriate GP records and the medical records from the Selly Oak Hospital. He then set out the history, his findings on examination and his opinion. He recorded Mr Ahmed's own history of the matter:

"He continued to have episodes of buttock pain culminating in further time off work and in 1990 he had more severe pain in the back of his leg with numbness in his right foot."

9. In his review of the medical records, Mr Brooks recorded that there had been a number of examinations. In 1988 an x-ray had noticed spondylitic changes at the lumbar L4-5 level. In 1990 a myelogram showed no nerve root impingement and, more significantly, in 1994 an MRI scan showed degenerate discs at L4/5 and L4/S1 with a disc bulge at L4/5 but no nerve root entrapment. In his opinion at the end of a short report, Mr Brooks identified five factors of importance. He notes the fact that he attended his general practitioner the day after his accident. He said the injuries were documented but there was no previous history of back problems. He then set out the findings of the MRI scan and the original lumbar spine x-ray and commented finally that he was able to return to work within four weeks of the accident. Mr Brooks then said that his accident could not be the only reason for his present symptoms:

"Had he had a severe injury to his back in the accident he would not have returned back to work as a bus driver within a period of four weeks as this occupation is known to exacerbate back problems. This gentleman was always at risk of having problems from his back because it is noted he had asymptomatic underlying degenerative changes that were present at the time of the accident. I believe that the accident caused an enhancement factor of his degenerative changes. Noting his age at the time of the accident of being 46 and his occupation it would be likely that had he not had the accident he would have suffered similar symptoms within a relatively short period of time. I would, therefore, anticipate that the accident had an advancement factor of no more than some three years, ie had he not had the accident then certainly by 1991 he would have been suffering similar symptoms and by 1994 he would not have been able to carry out his occupation as a bus driver."

10. To some extent Mr Brooks was repeating the opinion expressed by the consultant neurologist, Dr Corston, whose report was annexed to the particulars of claim. Dr Corston's report of 8 October 1991 was based on an examination in July 1991. He said:

"There was evidence of spondylitic changes in the lumbo-sacral spine on the CT myelogram. [He] must have had some pre-existing spondylitic changes in his back. The injury has led to worsening of the spondylitic changes and as a result of this he has suffered nerve root compression at some time. In view of the persistent symptoms and the absence of changes on myelography one must assume that he must have some scarring in the nerve roots.

I think it of relevance that immediately after the accident there was persistent pain which however was helped by epidural injections and it was only subsequently that he developed an exacerbation of his back pain and numbness and loss of function in his right foot. I would therefore contend that although the accident has played a part in the development of his symptomatology it cannot be held to be entirely responsible."

11. Mr Brooks' report was served on the defendants' solicitors the following year.
12. On 16 August 2000 the defendants' solicitors exercised their right under CPR 35.6 to ask questions of Mr Brooks on his report. They pointed out that Mr Ahmed last worked on 30 May 1990, on which date he suddenly lost the use of his right leg when he was driving a bus. They asked Mr Brooks what was his diagnosis of the symptoms complained of in 1990, and what was the likelihood, if any, that the events of 19 May 1987 caused the symptoms on 30 May 1990. In his reply dated 31 August 2000, Mr Brooks answered:

"With regards to [that] incident, I believe this is a separate episode of back problems which would have occurred irrespective of the incident in 1987."

13. The claimant's solicitors had not asked Mr Brooks the same question, which obviously must have been at the centre of any reasonably diligent solicitor's examination of the issues in this case. That was a matter which Dr Corston had highlighted in his report nine years previously. When the defendants' solicitors exercised their right to question Mr Brooks, they failed to comply with their duty under CPR Part 35 PD 4.2, which provides that:

"Where a party sends a written question or questions direct to an expert and the other party is represented by solicitors, a copy of the questions should, at the same time, be sent to those solicitors."

14. The words of that Practice Direction mean what they say. If defendants' solicitors, or indeed the solicitors for either party, fail to comply with this Practice Direction, they may find themselves liable for any costs which have been thrown away by that failure.
15. However, the action limped on. On 21 September 2000 Deputy District Judge Talbot, of his own motion, allocated the case to the multi-track. He gave a further set of timetable directions that: experts' reports should be disclosed by simultaneous exchange on 29 January 2001; if not agreed, experts' discussion by 12 March 2001; experts' statement of issues to be filed by 9 April 2001; and listing questionnaires to be filed by 21 May 2001.
16. Mr Matthews, understandably, complains that the defendants' solicitors, sitting on these answers by Mr Brooks, failed to disclose them, even though this order had been made by the court. If they had disclosed them, Mr Matthews said that, on the balance of probabilities, his instructing solicitors would have sought authority to instruct an alternative expert.
17. Mr Matthews put it that Mr Brooks' original report, as understood by his solicitors who had not identified the central issue in the case, suggested that Mr Ahmed could recover full loss of earnings until a date in 1994, whereas Mr Brooks was now saying that the loss of earnings attributable to the accident came to an end in May 1990, by which time he had not been off work to any material extent, except for the original four weeks away.
18. The order of the deputy district judge required listing questionnaires to be filed by 21 May. Shortly before the listing questionnaires were sent in, the parties' solicitors had a talk with each other, as a result of which Mr Brooks' letter was sent by the defendants' solicitors to the claimant's solicitors who received it on 18 May 2001. We have been told that the representative of the claimant's solicitors who had been dealing with the case had left and a new solicitor had recently taken over the file. He sent the answers to the listing questionnaire with a covering letter saying that his client would be calling two experts, Mr Brooks and Mr Kurian. Mr Kurian was the psychiatric expert whose witness evidence had been filed with the original particulars of claim. In a letter to the court, the solicitor said:

"I need to explain one matter, in relation to which there is some complexity, namely expert evidence.

The position seems to be that my client has leave to call four experts (para 2, order of 5 May 1998). The Court will probably be relieved to hear that my client does not seek to take advantage of such leave and intends to call only two:

(i) Mr Stuart Brooks, a consultant orthopaedic surgeon;

(ii) Mr Matthew Kurian, a psychiatrist.

Mr Brooks was first instructed in July 1998 and so was not in contemplation when the order was made on 5 May 1998 but, notwithstanding this, I take the view that, since my client seeks to call only two experts when he has been given leave for four, he should not need to apply for leave specifically in relation to Mr Brooks. I am aware, however, that this point may be controversial and so am copying this letter to Pinsent Curtis (for the Defendant) to enable them to make submissions on the point if they wish to do so."

19. In his letter to the defendants' solicitors he said that his side would be calling one expert, almost certainly Mr Brooks. Even allowing for the fact that he had only just taken over the file, it is unfortunate that he appears not to have appreciated the effect of Mr Brooks' answer to the defendants' solicitors, which had been in the firm's possession for a week before he sent off the listing questionnaire and the covering letters.
20. On 13 June 2001 the court directed a listing hearing for the express purpose of considering (a) whether the expert evidence of Mr Brooks should be permitted, the defendants having failed to make their position clear on the claimant's wish to rely on Mr Brooks; (b) psychiatric evidence; and (c) to consider whether oral expert evidence was required.
21. The hearing was arranged before District Judge Sankey on 12 September 2001. One would have thought that the claimant's solicitors would have had plenty of time if they wished to change horses to explore the possibility of instructing a new expert and to explain to the district judge on the listing hearing the dilemma in which they found themselves if time had not allowed for them to obtain an extension to their legal aid and to have their client examined by an alternative expert. As they had been placed in this dilemma by the defendants' solicitors' flagrant breach of the Practice Direction to CPR Part 35, no doubt the district judge would have had a good deal of sympathy with them. They did not deal with it in this way. They had an informal talk with the other side on the day before the hearing before District Judge Sankey when they told them, not having put in any formal application, that they were going to seek permission the following day to adduce evidence from Professor Emery, a rheumatologist. Since this was an entirely different agenda from that which the court had set for the hearing, this seemed to be an unhappy way of setting about rescuing themselves from their dilemma.
22. The matter came before District Judge Sankey on 12 September. The claimant's solicitors attended and said that they wished to instruct Professor Emery. The district judge asked what Professor Emery was going to say, to which they replied that they did not know. In his short judgment, the district judge said:

"An unhappy history presents itself to me on this narrow point about whether we should have a further expert. An extraordinary number of experts seem to have been produced over the years. I am told by Mr Friel, in reply, that the other experts' reports, which have been served and used at earlier stages, and disclosed to the defendants, are not to be relied on because they are old, and yet the proposition is that we come to the expert, who is the treating surgeon, whose report was to the GP, as I understand it, back in 1988. He was probably one of the very first people who did a report, and he is probably the oldest expert involved in it.

The difficulty is not simply a balance of prejudice as far as the delay is concerned after this period, putting the matter off for another five or six weeks, which is, in reality, neither here nor there.

There is more to it, however, in that we do not know what this other person might say. It might be Professor Emery is going to embarrass the defendant if he comes out with a different basis of his view of the matter from that of Mr Brooks. If, on the other hand, he does not then there is no point in postponing the inevitable. If he turns out to agree with Mr Brooks' view of the matter, and thus with Mr Cherry's view [the orthopaedic surgeon for the defendants] of the matter, it is simply going to compound the confusion in this case, as I see it.

So, notwithstanding that a period of six or eight weeks' delay is not out of proportion when looked at against a history of 12 or 13 years or so, I think that it is now unrealistic to suddenly start producing potentially another rabbit out of the hat, which would embarrass the defendant. My view of the matter, therefore, is that it would not be appropriate to allow yet a further expert to be introduced into this matter, and the experts who are involved, for whom permission has been given, should carry out their duty."

23. He was then critical of the fact that the claimant's solicitors had unilaterally decided not to instruct Mr Brooks to reach agreement with Mr Cherry in accordance with the earlier court order. He observed that:

"Experts, when they do [have joint conferences] frequently change the stance that they originally had, and that is one of the points of asking them to have joint discussions, to bridge gaps between them, which inherently means that there has got to be give and take on the part of each expert, and that in part should resolve the problem the claimant suffers from, or thinks he suffers from, and, as Miss Shelley [counsel for the defendant] says, it does rather savour of a fishing expedition, namely get somebody else again."

24. In those circumstances he dismissed the application for permission to adduce a further medical expert's report, and he encouraged the experts to put their heads together to produce a joint report.
25. The claimant sought leave to appeal. On 11 October 2001 Judge Macduff QC granted permission to appeal. He fixed a hearing date with a time estimate of one hour. The claimant's solicitors instructed Professor Emery and received a report from him dated 29 October 2001 which they served on the other side. They did not make an application for permission to adduce Professor Emery's evidence at the hearing of the appeal.
26. The matter came before Judge Nichol on the appeal. He set out the history of the matter and referred to the answer given by Mr Brooks in August 2000. He said:

"It is contended on behalf of the claimant, and was contended before the district judge, that that was a contradiction of that which he had said in his earlier report. I do not see it as such, and I do not think, from what I can understand of the note of the district judge's judgment, that he did either. It seems to me that was a question that had never been addressed in Mr Brooks' original report. I accept that the claimant's solicitors took the view, and based their claim for loss of wages on the assumption that, if he succeeded in the action, he was able to claim loss of wages as a bus driver up to 1994, and I certainly accept that it is a pity that they had not refined matters by checking."

27. He then said that the defendants' solicitors were entitled, indeed were under a duty, to ask the question. He referred to their failure to comply with the practice direction by sending copies of the question and answer to the claimant's solicitors. He then set out the history of the matter and the fact that Mr Paul Emery, on examination, had treated the patient in 1992. He said that there was an application before him that he should admit in evidence Professor Emery's report.
28. The judge continued:

"Returning to the history for a moment, no application was made in the proper way, supported by evidence to the learned district judge. There had been certain failures in management of the case, and District Judge Dowling had directed that there should be a listing hearing rather than simply a listing appointment before the diary manager for the reason which he gave in his order, and it was either on the day or on the day before the hearing that the defendant's solicitors were notified that this application was to be made.

Under the Civil Procedure Rules there is no doubt that the district judge was required to deal with the matter on the material that he had before him. That material was very limited, and it seems to me that on the basis of the material he had before him there is no criticism that can possibly be levelled at the way in which he dealt with the matter. In those circumstances, not surprisingly the claimant wishes to put in a large amount of additional material which, save for the final medical report of Professor Emery, I have in fact read."

29. He then set out the provisions of CPR 52.11 and came to the conclusion that there had been no serious procedural or other irregularity in the proceedings before the district judge. He could not see that there was anything wrong in the decision made by the district judge or in the evidence before him.
30. The judge then turned to the question, should there be other evidence submitted in the interests of justice and should there be a rehearing? He said:

"I am bound to say that I do not think there should. The onus was on the claimant's solicitors to put in the application in the right way in the first instance, and they failed to do so. But whatever they have done, and I have seen all the documentation, if I were to deal with this matter as a rehearing it would not change the basic point, which is this, that what Mr Brookes did was to answer a further and necessary question that the defendants were bound to put to him at some stage, and to give what I am sure was his honest opinion. That is unfortunate for the claimant, but it would be quite wrong for the claimant at this stage, his opponents having got a straight answer to a straight question, to say, 'Well, I'm not satisfied with that, I want to get someone else who will take the view that I could have worked until 1994 rather than 1990'. That is 'expert shopping', and it may well be that Professor Emery would have assisted him in that respect.

But, in my judgment, the overriding objective requires cases to be treated justly. There is nothing in the circumstances I have related to show that either the claimant or the defendant will suffer injustice as a result of the decision that was made by the learned judge, and accordingly I reject the application to covert this appeal from a review into a rehearing, or to admit the evidence which was not before the lower court. The reason I do that is quite plain: I do not think that, in the circumstances, it would affect the outcome and, as I have said already, I think that the learned district judge's decision was right."

31. It appears that Judge Nichol had denied himself the opportunity of considering Professor Emery's report and a follow-up letter which the Professor wrote about the matter. His report was extremely short. We have had the opportunity of seeing it. In his opinion he said:

"This gentleman, with pre-existing x-ray changes of spondylosis change had an injury to his back which resulted in sciatica. This was felt to be due to a bulging prolapsed disc which occurred as part of his injury. Since that injury he has had an acute on chronic problem with varying amounts of radicular symptoms which have responded to epidural injections (additionally he has also had coxxygeal symptoms).

Spondylitic changes per se do not necessarily produce lumbar disc symptoms. There is nothing that would have inevitably meant that he would have developed symptoms had he not had the accident."

32. In a follow-up letter dated 9 November 2001, when Professor Emery was being asked to comment on Mr Cherry's and Mr Brooks' report, he used extremely guarded language. He said he had little to disagree with Mr Cherry's report except that in point 11 of Mr Cherry's opinion he had expressed a view that the episode on 30 May 1990 must be regarded as entirely separate from the accident that occurred just under three years earlier. Mr Professor Emery commented:

"I would disagree that this has to be regarded as an entirely separate entity. I would contend that it was possible that an individual could injure his spine and produce a prolapsed intervertebral disk, which could then have a subsequent weakness which would have been prone to acute episodes in the future. The separation in time of the two episodes does not prove that they were not related, in my opinion."

33. In his comment on Mr Brooks' letter, he said:

"The relationship between x-ray changes and symptoms in the spine as in degenerative change elsewhere is poor, it only becomes better with very severe disease. It would be quite impossible for many bus drivers who have performed normally throughout their career to have had x-ray changes of an equivalent nature to Mr Ahmed.

Once an episode has occurred, further episodes are likely. This is based on the mechanical weakness produced and this is particularly relevant for an intervertebral disk and also because of the general propensity to pain that is induced.

Finally, the episode in 1990 was anatomically similar to the one that occurred previously in 1987, it is therefore more than an unlikely possibility that these two are related."

34. It seems to me that Professor Emery is considering an argument that was possible that the 1990 episode was not to be treated separately from the effect of the accident. I would certainly not accept Mr Matthews' submission that Professor Emery was saying that it probably was.
35. Finally, we have been shown a letter from Mr Cherry in which he said that he did not agree with Professor Emery's conclusion in the second paragraph of his opinion, and that what he was saying was at variance of what he believed would be the majority view of orthopaedic surgeons. It was a long way from the view taken by Stuart Brooks who he was quite sure would have been able to sign an agreed statement giving what was, in effect, a maximum advancement period of three years.
36. Mr Matthews now appeals against Judge Nichol's order. He meets Judge Nichol's view that he should not interfere with the decision made by District Judge Sankey on four grounds. He did not appear before Judge Nichol and is not completely clear that all these points were made to Judge Nichol. He says that Judge Sankey was wrong to describe an "extraordinary number of experts" when there were, in effect, only two experts' reports annexed to the particulars of claim; the other two having been annexed as evidence from doctors who had been involved in treating Mr Ahmed at some stage or another. He said it was wrong for the district judge to refer to the history of 12 years when the solicitor's negligence case had not been going on for that long. He said it was wrong for the district judge not to have explained the circumstances surrounding the dilemma in which the claimant's solicitors found themselves in May 2001. He also says that the district judge was wrong to refer to a fishing expedition.
37. I cannot see that the district judge's reference to the word "extraordinary" in an extempore judgment can be properly faulted. The district judge was aware that no less than four medical reports had been annexed to the particulars of claim. In the county court the claimant's solicitors sought and obtained permission to call four expert medical witnesses.
38. The reference to the history of 12 or 13 years was a reference for the benefit of the claimant rather than the reverse because the district judge was referring to the effect of a delay of a further few weeks in the context of such a history. It is true that the district judge did not specifically refer to the history of the matter but, in the note of the short hearing before him, it is clear that the history was explained there. I see no real problem in the district judge referring to a fishing expedition in circumstances in which the claimant's solicitors said that they wished to instruct another expert, but they had no idea what he was going to say because they had not yet instructed him.
39. The judge was quite right to refuse to interfere with the decision of the district judge on the material before him. Mr Matthews' complaint of injustice, given the way that his solicitors handled the matter from the time that they received Mr Brooks' letter of 18 May 2001 to the time of the listing hearing, nearly four months later, was not convincing.
40. Mr Matthews complains that Judge Nichol was wrong to say in his judgment that Mr Brooks' letter merely clarified his earlier opinion and was not in conflict with it. It is clear to me that Mr Brooks did not have at the forefront of his mind the question which the defendants' solicitors asked him at the time when he wrote his report. He was instructed by Mr Ahmed who was acting in person. In those circumstances he was not asked at that stage to concentrate his mind on the issue of the causal relationship between the events of May 1990 and the original accident. The claimant's solicitors, too, never asked him that question before they disclosed his report to the other side.
41. In my judgment, there is nothing wrong with Judge Nichol's assessment that Mr Brooks' answers to the questions were inconsistent with his previous evidence. Once he had his attention drawn specifically to the later event, and was asked whether it could be said to be a new causative factor, he reviewed the matter and made it clear that this new causative factor was indeed separate from the causative effect of the original accident.
42. Mr Matthews again says he dislikes the description "expert shopping". This was an expression the judge was quite entitled to use. He then says that the judge was wrong when he said no injustice would be done to the claimant. I can certainly see that if Judge Nichol had read Professor Emery's report he might not have said that. But, in my judgment, he was entitled, in the exercise of his discretion, to refuse to admit this new evidence which was not the subject of a formal application at the hearing of the appeal. He was entitled to say that the position should have been put clearly before the district judge and that the era in which new evidence is placed before an appellate judge without the matter having been properly prepared at the hearing before the district judge is not a practice which should be encouraged under the Civil Procedure Rules regime.
43. Professor Emery's report had not come into existence at the time the matter came before the district judge. The claimant's solicitors knew perfectly well at that stage that it was their intention to jettison Mr Brooks as an expert witness. They knew that they had obtained authority from the legal aid authorities to instruct a new expert witness and, even if they had not wished to identify Professor Emery, they could have told the district judge this in an application to adjourn the listing hearing because of the other side's breach of the practice direction. In my judgment, although the Ladd v Marshall principles do not strictly apply on an application such as this, Judge Nichol was entitled, if he saw fit in the exercise of his discretion, to refuse to look at Professor Emery's report and to refuse permission to adduce it.
44. Even if he had looked at Professor Emery's report and had looked at the further letter written by Professor Emery, it is very much on the cards that he would have come to exactly the same conclusion. Professor Emery does not appear to express the view that, on the balance of probabilities, Mr Ahmed's problems from May 1990 were causally related to his original accident.
45. Mr Matthews reminds us that, in a solicitor's negligence case, the judge will be under a duty to make an assessment on the balance of probabilities of what would have been likely to happen and what chance has been lost by the negligence of the former solicitors. A judge holding a case management role is quite entitled against this history to refuse to admit the evidence of yet another expert whose evidence, at best, was that there was more than an unlikely possibility that the 1990 episode was related to the 1987 episode.
46. I return to where I started. It is essential for the satisfactory operation of the new CPR regime that the authority of the judges in the lower court in case management issues should not be undermined by decisions of this court, unless this court considers that their decisions were clearly wrong, or that they have gone wrong in law, or there is some serious procedural mishap. This court of course performs an important function in ensuring that serious injustice does not occur and in drawing attention to the importance of compliance with rules in the practice direction.
47. In my judgment, this was the kind of case management issue which comes regularly before the lower courts. They have great experience of dealing with it. They know the solicitors who regularly appear before them and they adopt their appropriate methods, ensuring that the solicitors comply with their duties under the Civil Procedure Rules, and that litigation does not get unduly protracted as it did before the CPR came into force.
48. Mr Matthews contends that it would be a serious affront to justice if we did not allow this appeal. Having regard to the way in which Professor Emery expressed his opinion, it would not be an affront to justice. Accordingly, I would dismiss this appeal.
49. MR JUSTICE COLLINS: I agree.
Order: Appeal dismissed with costs to be set off against any award made for damages. Community Service funding assessment.