England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Knight Q.C.)
6WT02805

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2010

Lord Justice Moore-Bick :

1. In July 2003 the appellant, Mr. Donald Chadwick, underwent a total replacement of his left knee under the care of the respondent, Mr. Robin Hollingsworth, a consultant orthopaedic surgeon. Unfortunately, the wound became infected by coagulase-negative staphylococcus aureus which, despite a sustained course of antibiotics, could not be eradicated without the need for further surgery. Accordingly, Mr. Hollingsworth carried out a two-stage revision of the replacement, the second stage of which was completed in January 2004. It was thought at that stage that the infection had been completely eradicated, but that proved not to be the case and as a result of its re-emergence Mr. Chadwick has suffered chronic pain and swelling of the joint. Yet further surgery, possibly leading to an amputation, may be called for.
2. In June 2006 Mr. Chadwick started proceedings against Mr. Hollingsworth claiming that he had been negligent in the management of his post-operative care. In particular, he alleged that in September 2004 Mr. Hollingsworth had failed to carry out an open debridement and washout of the knee and the exchange of the polyethylene insert and that in January 2004 he had failed to take proper steps to check that the wound was free of infection before proceeding to carry out the second stage of the revision. Mr. Chadwick's case was based on expert advice from another consultant orthopaedic surgeon, Mr. Curry, who had provided an expert report for the purposes of the proceedings. Permission had been given to call Mr. Curry as a witness at the trial. Mr. Hollingsworth instructed his own expert, Mr. Jackson, who was also due to give evidence. In addition each side instructed an expert microbiologist.
3. In November 2008, following a meeting between Mr. Curry and Mr. Jackson and the preparation of a joint medical report, it became clear that Mr. Curry had changed his mind and no longer felt able to support Mr. Chadwick's case. Why that was so remained unclear, however, because Mr. Curry did not respond to repeated requests from Mr. Chadwick's solicitors for an explanation of his change of heart. In those circumstances the solicitors sought the opinion of another orthopaedic surgeon, Mr. Newman, and, having obtained a favourable report from him, sought permission to call him at trial in place of Mr. Curry. Permission was granted by Judge Bailey on 5^th November 2009.
4. In his report Mr. Newman identified certain respects in which he considered Mr. Hollingsworth to have been negligent in the management of Mr. Chadwick's treatment. They related both to the treatment carried out in response to the development of the original infection and to the circumstances in which the second stage of the revision had been carried out. It ought to have been obvious to all concerned that it might be necessary to amend the particulars of claim to reflect Mr. Newman's report, but no such application was made or foreshadowed when the matter was before Judge Bailey. In the event, however, it became clear in the course of argument that Mr. Newman's report would need to cover some additional ground, so it is unlikely that an application to amend could have been pursued pending receipt of his further report.
5. Following the receipt of Mr. Newman's second report, which contained a number of criticisms of Mr. Hollingsworth that were not in his first report, amended particulars of claim were drafted and an application was made for permission to make the amendment. Some of the original allegations based on Mr. Curry's evidence survived in the same or modified form, but the majority of the allegations of breach of duty were based on Mr. Newman's second report. Moreover, the terms in which causation was pleaded differed from those contained in the original statement of case.
6. The application came before Judge Knight Q.C. on 8^th January 2010. Having heard counsel, he granted permission to amend, but only on terms that Mr. Chadwick pay all the costs of the action up to that date (save for the costs dealt with by Judge Bailey). He made that order principally on the grounds that the amendment would substitute a new case for one that was very likely to fail, so that by making the amendment Mr. Chadwick was, in effect, starting all over again. However, the judge himself granted permission to appeal because he recognised that if he had exercised his discretion wrongly it would have important consequences for costs. He made certain comments in exchanges with counsel at the end of the argument which suggested that he thought an appeal lay to the Court of Appeal.
7. On 26^th January Mr. Chadwick lodged a notice of appeal with this court. On receipt of the papers Deputy Master Hendy raised with the parties' solicitors the question whether the order was final in nature and thus whether this court had jurisdiction to hear an appeal, but the issue was not resolved before the appeal itself came on for hearing. Having regard to the correspondence Miss Gollop felt, quite rightly, that she should raise the matter for the court's consideration and did so in her skeleton argument. In our view it is one which must be determined before we consider the merits of any appeal, since, once the point has been raised, it would be quite wrong for the court to proceed if it were not satisfied that it had jurisdiction to act.
8. The routes of appeal are laid down in the Access to Justice Act 1999 (Destination of Appeals) Order 2000. In broad terms Articles 2, 3 and 4 provide that an appeal from a decision of a county court lies to the High Court, save that an appeal lies to the Court of Appeal where the decision in question is a final decision in a Part 7 claim allocated to the multi-track. A final decision is defined in article 1(2)(c) as

"a decision of a court that would finally determine (subject to any possible appeal or detailed assessment of costs) the entire proceedings whichever way the court decided the issues before it."

Those words are repeated in 2A.2 of the Practice Direction supplementing Part 52, which gives as examples of decisions that are not final case management decisions, the grant or refusal of interim relief, a decision on an application for summary judgment and a decision on an application to strike out a statement of case.

9. Over the years routes of appeal have caused headaches among judges and practitioners because of their complexity. Paragraph 2A.1 of Practice Direction 52 contains a table designed to describe the position in clear and simple terms, but it does not relieve those concerned of the need to determine whether the decision in question is interim or final. With a view to directing attention to the need to identify the correct route rule 40.2(4) provides that, whenever a party applies for permission to appeal against an order at the hearing at which it was made, the order shall state the following: whether it is final; whether an appeal lies from it and, if so, to which appeal court; whether the court gives permission to appeal; and if not, the appropriate appeal court to which any further application for permission may be made. Neither the first nor the second of these requirements was satisfied in the present case and one cannot help thinking that neither counsel nor the judge were aware of them. Certainly the rule was not expressly drawn to the judge's attention. If it had been, he would probably have asked counsel for submissions and there is every likelihood that the route would have been correctly identified. Compliance with the requirements of rule 40.2(4) should be a matter of course, not only because the rules require it, but also because, as this case demonstrates, it may save the parties from unnecessary delay and wasted costs.
10. The application before Judge Knight in the present case was for permission to amend the particulars of claim. It is therefore difficult to see how the order could itself finally determine the entire proceedings whichever way the court decided the issues before it. As Miss Gollop pointed out, permission was granted and the proceedings continued. Even if it had been refused, that would not of itself have determined the proceedings, though it might have led to another order which had that effect. Mr. Butler sought to argue, though without much enthusiasm, that the effect of the judge's decision was to strike out the original claim in its entirety. That was a difficult submission for him to make, being inconsistent with his primary submission that the amendment merely extended, and did not wholly replace, the original case, but in any event, it is clear, both as a matter of principle and from the terms of paragraph 2A.2 of Practice Direction 52, that even an order striking out Mr. Chadwick's claim in its entirety would not have constituted a final order for these purposes.
11. Mr. Butler submitted in the alternative that the Destination of Appeals Order is directory in nature and does not deprive this court of jurisdiction to hear and determine an appeal once a notice of appeal has been lodged. I am afraid I cannot accept that. It has been pointed out many times that the Court of Appeal is a creature of statute whose jurisdiction is limited by statute. The Destination of Appeals Order, although not a statute, is secondary legislation made under statutory powers and therefore capable of limiting the court's jurisdiction. Section 56 of the Access to Justice Act 1999 under which it was made gives the Lord Chancellor power to provide that appeals that would otherwise lie to the Court of Appeal shall lie instead to another court, in this case the High Court. The Order therefore constitutes a modification of the statutory jurisdiction of the court as it previously existed. Articles 2, 3 and 4, to which I have referred, prescribe in exclusive terms the courts to which appeals lie. I am unable to accept that this court has jurisdiction to hear and determine an appeal which properly lies to the High Court under that Order.
12. For these reasons I have reached the conclusion that this court has no jurisdiction to hear the present appeal and that the matter must be remitted to the High Court.

Lord Justice Patten:

13. I agree.

Lord Justice Rix:

14. I also agree.