England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM THE BIRMINGHAM COUNTY COURT
HH JUDGE CARDINAL
BM6/0211A

		Royal Courts of Justice Strand London WC2
		25th October 2006

Mr Justice Tugendhat :

1. This is the hearing of an appeal from an order of His Honour Judge Cardinal made on 22^nd August 2006 brought by leave of Crane J given on 6^th October 2006. It relates to a trial listed for 10 days commencing 20^th November 2006.
2. In this action Mr Harry Gall seeks damages from the defendant for assault and other causes of action arising from events in May 1999. Mr Gall wants to call his GP, Doctor Yap, as a witness. On 9^th January 2006 the Defendant obtained a debarring order preventing the claimant from calling Doctor Yap to give evidence if he failed to comply with certain conditions set out in paragraph 4 of that order. The conditions were to be fulfilled by 13^th February 2006. The Respondent's case is that they have not been fulfilled, at any event not strictly in accordance with the Order. Mr Gall asked for an extension of time for compliance, which His Honour Judge Cardinal refused to give, having considered the provisions of CPR Part 3.9.
3. When the Particulars of Claim were issued on 2^nd September 2003 the claimant was legally represented. He is now acting in person. The Particulars of Claim were settled by counsel. The assault is alleged to have taken place on 29^th May 1999 at about midnight when the police officers arrested the claimant. The claimant was imprisoned, falsely as he claims, from the time of his arrest at 00.15 hrs on 30^th May 1999 until 09.44 that morning and again on 2^nd June for a total period of 21hrs 9 minutes. He was committed for trial at Birmingham Crown Court on 9^th February 2000, and following a three day trial at which he gave evidence he was acquitted. So this claim is in effect for trespass to the person, false imprisonment and malicious prosecution. In para 11 of the Particulars of Claim he sets out Particulars of Injury namely:

"1) Abrasion and swelling to nose. 2) Scratch on the forehead. 3) Scratch on his back. 4) Lower back pain. 5) Redness around the wrists. 6) Abrasion and bruising to left buttocks. 7) Pain. 8) Shock. Further particulars are set out in the medical report of Dr Yap dated 26^th November 1999 served herewith."

4. The report is in the form of a letter from Dr Yap dated 26^th November 1999. It includes the following:

"With regard to his injury, Mr Gall consulted me on 1^st June 1999, as an emergency appointment following his arrest by the police on 29^th May 1999…. On examination there were small bruises on his right ear his right lower forearm and forehead. There were handcuff marks on his right wrist and there was a large boot mark bruise on his left buttock which covered about one third of his buttock. The bruise marking was in the shape of a boot/heavy shoe, which would have a crescent shape and metal stud on the heal area. …."

5. In the Defence, settled by counsel and dated 25^th September 2003, it is pleaded at paragraph 13:

"It is admitted that the Claimant engaged in a violent struggle with PC Field. It is admitted that the Claimant sustained some injury in the course thereof. Save as is admitted hereinabove and save for the Claimant's date of birth, para 11 of the Particulars of Claim is denied".

6. Each party completed an Allocation Questionnaire in October 2003 and each ticked the box indicating that they did not wish to use expert evidence at the trial. So far as the Claimant is concerned, this is consistent with his reliance on Dr Yap, because Dr Yap's evidence is evidence of fact, namely the injuries that he saw. Mr Griffiths submits that there is implicit in Dr Yap's letter attached to the Particulars of Claim an opinion as to the cause of the injuries. If so, then that was not a point picked up on behalf of the defendant at least in October 2003.
7. On 13^th January 2004 directions were given by Deputy District Judge Hanson after consideration of the Statements of Case and allocation questionnaires.
8. In April 2004 the parties each produced Case Summaries. Neither party referred in terms to any issue arising on the alleged injuries or Dr Yap's letter. It remains unclear to me today what issue does arise as to the injuries that Dr Yap states that he saw.
9. On 25^th April 2004 proceedings were commenced by Mr Gall's son, James Gall, arising out of the same incident and claiming similar relief. There is no letter attached identifying injuries in his case and the injuries pleaded are breathing difficulty, pain and shock. So the issue that arises on Dr Yap's evidence in this case does not arise in that action, so far as I am aware.
10. On 1^st November 2004 the parties to this action again completed Allocation Questionnaires. The form had then by this time been revised and half a page is devoted to statements and questions about expert evidence. Each party left that section blank.
11. Various orders for directions were made including one on 25^th July and another on 22^nd August 2005. Neither order referred to Dr Yap or to any expert evidence. In October 2005 the solicitor's then acting for Mr Gall gave notice of discharge of public funding and they ceased to act for him.
12. On 9^th January 2006 His Honour Judge Wood QC made a detailed order for directions which included the following:

"4. If it is the intention of the Claimants or either of them to call Mr Yapp [sic] to give evidence at the trial of this action then:

4.1 The Claimant(s) must file the original and serve upon the Defendant a copy of a letter signed by Dr Yapp which letter must state:
4.1.1 That the Claimant(s) has or have paid Dr Yapp or has or have made irrevocable arrangements to pay Dr Yapp for his attendance which arrangements Dr Yapp has accepted.

4.1.2 The Claimant(s) has or have warned Dr Yapp that he will be required to attend in person on one or more days of the trial and that Dr Yapp will hold himself available to attend Court on every day for which he is so warned.

4.2 The Claimant(s) shall notify Dr Yapp of the trial window and obtain from Dr Yapp any dates upon which he is not available. The Claimant(s) shall notify Dr Yapp of the dates of the trial when fixed. The Claimant(s) shall take every step necessary to inform Dr Yapp when he must attend at Court and make such arrangements as may be necessary to secure his attendance at Court.

4.3 The Claimant(s) must file and serve the said letter by 13 February 2006.

4.4 In the event that the Claimant(s) fail to serve such a letter then the Claimant(s) are debarred from seeking to adduce or relying upon the evidence of Dr Yapp.

4.5 In the event that the Claimant(s) serves such a letter, the Defendant has permission to call Dr Norfolk."

13. The order in relation to Dr Yap was preceded in time by a draft contained in a document headed "Proposed Directions" apparently prepared on behalf of the defendant. There is no other explanation in the papers for it. I queried with Mr Griffiths the jurisdictional basis for such an order. It is unlike any order I have seen before. The point is that no Order giving leave to either party to call expert evidence had been made up to this point in this action, and a party does not normally need leave to call a witness of fact. Insofar as para 4.5 of the Order gives permission to call Dr Norfolk, that can only be on the footing, as Mr Griffiths made clear in his skeleton argument, that Dr Norfolk is an expert witness. Apparently he made a medical report dated 31^st January 2001 based on photographs which Mr Gall had had taken shortly after the incident and which showed his injuries.
14. Where a court is giving leave for the calling of expert evidence then, as the form of Allocation Questionnaire makes clear, there is normally, and should be, provision for consideration of a joint expert, for discussion between experts if there is not a joint expert, for a joint statement, and generally compliance with CPR Part 35. There is no reference to any of this in the Order of 9^th January 2006.
15. On 25^th January 2006 Dr Yap wrote a letter to the Claimant which is clearly the result of confusion. When he wrote that letter he understood the incident which was being referred to was one that happened in July 2004 and not the one in May 1999. On 7^th February 2006 Dr Yap wrote a further letter setting out dates when he would be available to give evidence.
16. On 14^th February 2006 the solicitor for the Defendant wrote to the court as follows:

"I refer to the Order of His Honour Judge Wood QC dated 9 January 2006 and in particular to paragraph 4 in its entirety. The claimant has failed to comply with that order in that the only letter that I have received from Dr Yap details his availability between June and December this year. The said letter fails to comply with paragraph 4.1.1 4.1.2 and 4.3. The said letter was ordered to be filed and served by 13 February 2006. Mr Gall is now debarred from seeking to adduce or rely upon the evidence of Dr Yap and perhaps the court file could be noted accordingly".

17. There is no explanation in the papers before me as to what happened until 19^th June 2006 when the solicitors formerly acting for the Claimant wrote to him enclosing a blank form of Application Notice. That form was filled in by the Claimant in person dated 6 July 2006. In it he gave notice of intention to apply for an order that he have permission to rely on the written and oral evidence of Dr Yap. In the grounds, he recalls the letter in which Dr Yap had written, and goes on to say that Dr Yap had failed to advise him as to how much he would have to pay for his time spent away from his surgery. He adds that it would be unfair, and very detrimental to his case, if he were not able to rely on the evidence of Dr Yap as to his injuries and how they came about.
18. On 17^th August 2006 His Honour Judge Cardinal dismissed that application. Since that date Dr Yap has written two further letters. On 31^st August 2006 he wrote confirming the standard charges recommended by the BMA for court attendance, namely £150 per session up to two hours for the cost of locum cover plus £83.50 an hour for the first two hours attendance as a witness. And in a letter dated yesterday 16^th October he wrote one line:

"I am prepared to give evidence on behalf of Mr Henry Gall for his trial".

19. The judge set out the provisions of CPR Part 3.9 which are as follows:

"(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

(b) whether the application for relief has been made promptly;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure;

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol ;

(f) whether the failure to comply was caused by the party or his legal representative;

(g) whether the trial date or the likely trial date can still be met if relief is granted;

(h) the effect which the failure to comply had on each party; and

(i) the effect which the granting of relief would have on each party.

(2) An application for relief must be supported by evidence."

20. The judge said the following in relation to each of those sub paragraphs:

a) "The defendant must have the evidence and know what is required of him"

b) "The claimant knew of his breach of his order before 13^th February 2006. He did nothing until July."

c) "The failure was not intentional but the claimant is in default".

d) "Is there a good explanation? In fact there is none at all. The claimant should have provided the letter from Dr Yap".

e) "This is not relevant ".

f) "The default was caused by the party since the claimant is acting in person."

g) "Whether it is possible to meet the trial date is not clear. I do not know whether the defendant would be able to arrange the attendance of Dr Norfolk".

h) "I consider the effect this may have on each party. The delay caused to the Defendant in arranging for Dr Norfolk may cause the Defendant disadvantage".

i) "If I were to grant the application to allow more time its not apparent what effect this would have as Mr Gall has already failed to comply with the order".

21. The hearing of appeals is governed by CPR Part 52. CPR 52.11 includes the following:

"52.11 – (1) Every appeal will be limited to a review of the decision of the lower court unless – …

(a) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing….

(3) The appeal court will allow an appeal where the decision of the lower court was –

(a) Wrong: or

(b) Unjust because of a serious procedural or other irregularity in the proceedings in the lower court.

(4) The appeal court may draw any inference of fact which it considers justified on the evidence.

(5) At the hearing of the appeal a party may not rely on a matter not complained in his appeal notice unless the appeal court gives permission. "

22. This appeal is limited to a review of the decision of the lower court, which is reasoned. This appeal is not an appeal from the order of 9 January 2006, but it is necessary to have regard to the background and terms of that order in deciding what should be done about a breach of it.
23. It seems to me that a number of criticisms can be made about the judge's approach to the list in CPR Part 3.9. In relation to (a), the interests of the administration of justice, the primary consideration is that the evidence sought to be adduced is evidence of fact for which a party does not normally require leave. The defendant has not, so far as the papers before me show, identified what the issue of fact is. The defendant has the evidence in the form of a letter of Dr Yap attached to the Particulars of Claim. The defendant has not asked for leave to call expert evidence and the order of 9 January 2006 does not seem to be to me an effective order giving him even conditional leave. The provisions of CPR Part 35 would have to be addressed on a formal application for leave which, if made now, would be made at a very late stage indeed. The judge does not refer to the overriding objective and to the interest of justice insofar as they concern the Claimant.
24. As to sub paragraph (b), I accept that the judge is right to say that the claimant did nothing until July. But it is difficult to see what the claimant could do to comply with the terms of paragraph 4 of the order other than show it to the doctor and ask him to provide the letter. In his grounds of appeal the Claimant refers to his illness and to that of his father, but it is not apparent that he told this to the Judge. I approach the case on the facts found by the Judge.
25. Mr Gall told me and this was not disputed that he had shown the terms of the order to the doctor, and the doctor had written the letters that he the doctor chose to write. Accordingly, as to (c) I also accept that the judge was right to say that the failure was not intentional. The default is apparent, but it is one over which the claimant has no control. The terms of the order require him to fulfil conditions over which he can have no control.
26. As to (d), the judge says that there is no explanation at all and that the claimant should have provided the letter from Dr Yap, but I find difficulties in seeing what more the Claimant could do than he did do.
27. In relation to paragraph (g), whether the trial date can still be met if relief is granted, I cannot see why it should not be met. Insofar as the judge refers to difficulties on the part of the defendant in arranging the attendance of Dr Norfolk, I repeat that it doesn't appear to me that they have any leave to call Dr Norfolk. Even if they did, the provisions of part 35 have to be complied with. It cannot be unlikely that the two doctors might agree on the factual statements by Dr Yap at least insofar as they were consistent with the photograph. It is not clear to me that either doctor would be in fact required to attend the trial, and that would not be known unless and until the provisions of part 35 had been complied with. I refer to further possible approaches to the point below.
28. In his comments in relation to sub paragraph (h), the judge refers to disadvantage to the defendant but not to what seems to me to be the much greater disadvantage to the claimant.
29. In relation to sub paragraph (i) the judge refers to it not being apparent what effect an extension of time would have. The reason for that, it seems to me, is that, as already noted, the claimant has no control over the doctor. Moreover, the two letters written subsequent to the judge's judgment by Dr Yap have now made clear that the doctor is prepared to give evidence at the trial and is not imposing any conditions. The judge did not, of course, have these letters, but I do not find their contents surprising.
30. It appears to me that the judge has taken into consideration matters which he should not have taken into consideration, and has failed to take into consideration matters which he should have, as set out above in relation to paragraph CPR 3.9 (1). This has in my judgment resulted in a wrong decision and one that is unjust. Accordingly I indicated at the hearing that I allowed the appeal for reasons which I would give in writing later and which are contained in this judgment.
31. I grant the Claimant the extension of time he sought, to today's date, and make clear that I consider that the order of 9 January 2006 has been sufficiently complied with.
32. The appeal having succeeded, I shall make an order that the costs be paid by the defendant to the claimant both of this appeal and of the application to the judge.
33. I have been hearing the appeal and not making case management directions. But it may be of assistance to the parties and the court if I add the following comments, which are not binding upon anyone.
34. If the defendant objects to any part of the contents of Dr Yap's letter attached to the Particulars of Claim on the basis that it contains opinion evidence, then he is free to raise that point with the trial judge. I express no view upon it. If the trial judge were minded to uphold the submission, and to exclude it as expert evidence for which leave has not been given (I am not suggesting that he should), then there would be means for dealing with the point which would not put the trial dates in jeopardy. This being a jury action, the trial judge can rule what evidence he considers can properly be adduced before the jury. That evidence might need to be adduced by the doctor in person, but equally it might not. A description of injuries given by a doctor is very commonly put before the jury in criminal cases, without the need to call the doctor. If the doctor does have to be called, I still see little risk. The evidence cannot be expected to take long, and a time for adducing it could be settled by the trial judge.
35. If there is, at this very late stage, to be any application for leave to call expert evidence that must be made in the usual way, by Application Notice. The judge hearing any such application will have regard to the chronology in relation to the opportunities for the parties to apply to call expert evidence, which is set out in this judgment.
36. If a court is asked in any future case to make an order in terms of para 4 of the Order of 9 January in respect of a witness of fact, then I would expect it to give careful consideration to the justice of making an order in such severe terms, and full reasons for it to be recorded.