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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		20 March 2009

MR JUSTICE HOLROYDE:

1. This is an appeal by the Claimant against an order made by Master Yoxall refusing the Claimant permission to adduce expert evidence from a second obstetric expert witness. I am very grateful to both counsel for the help they have given me with their submissions this morning.
2. The Claimant was born on 23 January 1989 at an RAF hospital in Germany, which was managed and controlled by the Defendant. The obstetrician attending the birth was Mr Patrick Forbes, then Wing Commander Forbes. It is alleged that he was negligent in the management of the labour and delivery, and that as a result of that negligence the Claimant suffered asphyxia causing cerebral palsy. The allegations of negligence are denied and the case is due to be tried on 22 June this year. Witness statements have been exchanged; those statements including the statement of Mr Forbes. There has not as yet been exchange of expert evidence, as that has been deferred pending resolution of this appeal.
3. A case management hearing was held on 3 October 2008, concerned solely with an application by the Claimant for permission to rely on the evidence of an additional expert in obstetrics and gynaecology. Master Yoxall heard and refused that application. The Claimant applied for permission to appeal against that refusal and permission was ultimately granted to the Claimant on 4 March, when an order was made that the appeal be expedited. In the meantime, as I understand it, the pleadings have been amended on both sides.
4. To outline very briefly the circumstances giving rise to the action, Mr Forbes made an unsuccessful attempt at a forceps delivery in the delivery room of the hospital. During that attempt the cord prolapsed and foetal distress resulted. Mr Forbes then carried out an emergency caesarean section under emergency anaesthesia. It is admitted by the Defendant that the Claimant's condition at birth was attributable to a period of profound hypoxia, probably caused by the cord prolapse.
5. In very broad outline the allegations of negligence which are levelled against Mr Forbes raise the following issues: Firstly, it is said that there were a number of contra-indications of a forceps delivery and that Mr Forbes should not have attempted one. He should instead have proceeded immediately to a Caesarean section and it is alleged that he failed properly to identify, or to heed those contra-indications. Alternatively, it is said that any attempt at forceps delivery should have been by way of trial of forceps under proper anaesthesia in the theatre, and not in the delivery room. Thirdly, Mr Forbes is said to have been negligent in causing the cord prolapse by rotating the foetus when the head was either not engaged or was too high. Fourthly, it is said that having caused the obstetric emergency Mr Forbes failed to take appropriate steps to alleviate the pressure on the cord following the prolapse.
6. A skeleton argument was prepared by Mr Wilson-Smith, counsel for the Claimant, in support of the application for permission for appeal and that is before me today. It helpfully summarises the central allegations of negligence and it will be as well for me to read paragraphs 4 to 7 of Mr Wilson-Smith's skeleton argument:

"4. The Claimant suffers from dyskinetic cerebral palsy following a profound period of hypoxia immediately prior to his birth at 21-15 on 23.01.89. He suffers from significant physical and communication difficulties but has retained his intellect. Wing-Commander Forbes was the obstetric consultant who attempted a forceps delivery in the delivery room and, following a cord prolapse, delivered the Claimant by way of an emergency Caesarean section in theatre.

5. The central allegations of negligence are as follows:

i) Attempting a forceps delivery in the delivery room as opposed to in theatre (where a prompt Caesarean delivery could be achieved if instrumental delivery failed). Alternatively, failing to proceed straight to a Caesarean section.

ii) Failing to identify that the fetal head was probably not engaged and the potential pelvic capacity difficulties. Both these factors were contraindications for a forceps delivery.

iii) Causing the cord prolapse during the course of the attempted forceps delivery.

iv) Failing to alleviate pressure on the cord by way of digital elevation of the fetal head in the period between the cord prolapse and delivery in theatre.

6. All the aforesaid allegations of negligence are denied by the Defendant. It is common ground that the Claimant's condition at birth was caused by a period of profound hypoxia due to compression of the cord following the prolapse. The precise period of hypoxia is in dispute.

7. One unusual aspect to the claim is contained in Paragraph 5(d) of the Defence. It is contended that the hospital in question (an RAF hospital in Wegberg, Germany) was a small unit without a dedicated maternity theatre with theatre staff on call and it was therefore standard practice not to attempt forceps delivery in theatre.

That summary was, I think, prepared prior to the amendment of the Particulars of Claim, but I think I have by now sufficiently covered the broad allegations in the case.

7. The defence pleads, in effect, that it was perfectly proper for Mr Forbes to attempt forceps delivery in the delivery room and that the suggested contra-indications were not present. It is admitted that the cord did prolapse during the course of the application of the forceps. But it is said that that was not due to negligence; there being a small risk of cord prolapse whenever such forceps are used. It is said that there can be no valid criticism of the manner in which the procedure was carried out and that once the emergency arose, appropriate steps were taken.
8. It will be apparent from my summary, that the Claimant's case is based upon allegations that Mr Forbes personally was negligent. No other member of the medical or nursing staff is alleged to have been negligent. Mr Forbes has responded to each of the allegations of negligence, or at any rate those pleaded in the original Particulars of Claim, in part of his witness statement of 26 August 2008. In particular, having in that statement set out his evidence as to the relevant events, he proceeds in his paragraph 22, to comment on each of the allegations of negligence in turn and in doing so he refers more than once to what was the normal practice in that particular hospital at the material time.
9. Before Master Yoxall, the arguments advanced on each side were substantially the same as those advanced before me. Considerable reliance was placed by the Claimant on the decision of the Court of Appeal Civil Division in ES v. Chesterfield and North Derbyshire Royal Hospital NHS Trust Neutral Citation [2003] EWCA Civ 1284, and I will come to that decision of the Court of Appeal shortly. It was submitted on behalf of the Claimant that Mr Forbes is an obstetrician of considerable eminence, who was of consultant status at the time of the Claimant's birth and has gone on to act as an expert witness himself for a number of years. It is said that although he is called to give factual evidence, it is inevitable that he will rely upon and deploy his expertise and thus in reality, it is submitted, the defence will have the advantage of two experts giving evidence; that is to say Mr Forbes and the independent expert witness, whereas the Claimant will only have the one.
10. It is then submitted that this is a substantial claim in money terms and also, of course, a case of the utmost importance to the Claimant. It is contended that the Claimant should not be at a disadvantage in the number of expert witnesses available to the parties and, it is said, that if the present order stands, and if the outcome of the proceedings is that the Claimant loses at trial, he will feel justice has not been done, or has not been seen to be done and, it is submitted on behalf of the Claimant, that the cost of instructing a second expert has already been incurred and that the additional cost of calling him or her as a witness will not be disproportionate to the value of the claim, nor will calling that additional witness add significantly to the length of the trial.
11. Mr Manknell, on behalf of the Defendant, submitted to Master Yoxall, and submitted to me this morning, that the case of ES is clearly distinguishable. That the usual rule is that only one expert of each discipline should be called and that two will only be permitted in an exceptional case. He submits that this is not an exceptional case. In an action for clinical negligence, it is said that it is commonplace for the treating medical practitioner; the person directly accused of negligence, to be expert in his own right and indeed not infrequently to have acted as an expert witness in litigation not involving himself, and Mr Manknell submits that if two experts are allowed to this Claimant, there will be many other cases in which a similar order should be made. Mr Manknell also submits that the effect of the order now sought by the Claimant would be to put the Defendant at an unfair disadvantage, because the Claimant would have two wholly independent experts whereas the Defendant would have one independent expert, coupled with the evidence of Dr Forbes, of whom it will no doubt be said, suggests the Defendant, that he cannot be regarded as independent, because he is the man whose actions are criticised. And finally, it is submitted on behalf of the Defendant, that the order, which is the subject of this appeal, is a case management decision made by an experienced master who clearly took great care in exercising his discretion and that I should be very slow to interfere with that decision.
12. Master Yoxall, for his part, having heard those submissions or submissions to that effect, and having considered the case of ES, ruled against the Claimant saying in his concluding paragraph, paragraph 9 of the judgment the following:

1. "I bear in mind that this is a case of significant value. It is said that it would be over £1 million. Of course, I bear in mind the importance of this case to the claimant, and indeed to the defendant and Mr. Forbes in particular. But ultimately I ask myself what are the exceptional circumstances in this case, which take it away from the usual case, where it is one expert on each side? I am not persuaded that Mr. Forbes' medico-legal work, and indeed the assistance he gives to the Medical Protection Society, are features which make this case so exceptional that a second expert must be engaged. It does seem to me that an expert for the defendant, should be able to deal properly and fully with the expert issues in this case, no doubt each of them making assumptions of fact and expressing opinions, bearing in mind those assumptions. So on balance, I have come to the conclusion that it is not appropriate and necessary for me to make an order giving the claimant permission to have a second expert in this field."

13. I turn to consider the case of ES. That too was an action for damages; negligence in the management of the delivery of a child born with cerebral palsy, and it too was a case in which an issue arose as to the number of expert witnesses whom the Claimant should be permitted to call. The allegations of negligence in that case were directed mainly at two medical practitioners: an obstetric registrar, Dr Downes, who by the time of the trial had himself attained consultant status, and the consultant obstetrician from whom he had sought advice at the relevant time, Mr Krishnamurthy.
14. The contention of the Claimant ES, was that he would be at a severe disadvantage if he was limited to a single expert obstetrician, because in reality the Defendants would be calling evidence from three consultants: one the expert witness, but another two consultants who, although called as witnesses as fact, would inevitably be relying upon and displaying their expertise. The Master in that case declined to permit more than one expert witness on the Claimant's side, but gave permission to appeal and directed that the appeal be referred to the Court of Appeal. The Court of Appeal allowed the Claimant's appeal. Now in view of the very heavy reliance placed upon this decision by the Claimant here, who contends that the present case is identical in almost every relevant feature to the present appeal, I think it appropriate for me to quote at greater length than would be normal from the judgments of the Court of Appeal. Brooke LJ emphasised that the court could only interfere with the direction of the Master, if the Master had gone outside the generous ambit of the discretion allowed to him, or had otherwise gone wrong in the law. The learned Lord Justice referred to the general rule, that it is only in an exceptional case that more than one expert in any particular speciality will be permitted. And he then said this at paragraphs 17 to 25 of his judgment:

"17. The governing rule, therefore, limits expert evidence to that which is reasonably required to resolve the proceedings in issue. What is reasonable in any particular context will inevitably be fact sensitive. It would be wrong to approach this question with the predetermined belief that to instruct more than one expert in the same discipline will always be excessive. In addition to considering the facts, the court will need to remind itself in any contentious case of the principles underlying the overriding objective in CPR 1.1. In the present context the most important of the considerations set out in CPR 1.1.(2) appear to be:

(a) ensuring that the parties are on an equal footing;

(c) dealing with the case in ways which are proportionate -

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues;

(iv) to the financial position of each party.

18. While the other considerations listed in CPR 1.1(2) are always important, in a case like the present they are likely to be subordinated to the particular items I have listed.

19. It would be difficult to under-estimate the importance of the case to the parties. To those who are used to handling heavy clinical negligence cases it might appear to be just another cerebral palsy case, but to the claimant and her family on the one hand and to the medical staff of the hospital, whose standard of professional care is being impugned in a matter which resulted in catastrophic consequences, the case is very important indeed. This was not disputed by either counsel.

20. As I have said, the claim is valued at £1.5 million. This places it, so far as money is concerned, close to the top of the range in heavy multi-track litigation which does not have a commercial ingredient of some kind. So far as personal injury cases are concerned, it is a very large claim.

21. The issues are complex, not because it may not be relatively easy for the judge to understand the main features of the processes of obstetric care immediately before a baby is born, but because he will be invited to make a judgment on the appropriate standard of care when consultant obstetricians are in disagreement.

22. Both the defendants and the claimant are in receipt of public funds for this litigation, so that there is nothing in CPR 1(2)(c)(iv) which creates particular difficulties for the procedural judge to consider.

23. Above all, however, for a case of this importance, high monetary value and complexity the parties will not be on an equal footing if Master Ungley's order is to stand. The master appreciated that it was inevitable that a witness who happened to be a professional will give evidence of his actions based upon his or her professional expertise, but he thought that it was possible to isolate this evidence from the evidence on the 'vital question of whether those decisions fell short of the required standard', on which he was permitting only one expert on each side. In my judgment he was clearly wrong to do this on the facts of this case.

24. Anybody watching the trial would be bound to be impressed by the fact that there was only one consultant obstetrician giving evidence for the claimant, while there would be three giving evidence for the defendant hospital trust, and those three would cover a much wider spectrum of personal experience than the single expert permitted to the claimant. It is not as if the medical witness of fact for the defendants is a junior hospital doctor. We were told something of Mr Downes' professional history both as a practitioner in a number of hospitals and as a teacher, and his evidence on the reasons why he believed he acted with appropriate care will be supported by two other consultants. Against them there will be a single voice speaking for the claimant, and Mr Wheatley spoke convincingly of the danger that he might appear to a judge to have a 'bee in his bonnet' or an overly academic approach to matters of day by day clinical practice.

25. I do not moreover consider that the extra time and expense that would be introduced into the trial by the calling of a second expert for the claimant would be disproportionate in a case of this monetary value and importance."

Later in his judgment Brooke LJ said:

27. "Nothing in this judgment must be taken to give any sort of green light to the calling of two experts in a single discipline in any case which does not have exceptional features. On this appeal the presence of three consultants on the defendants' side constitutes such an exceptional feature."

Holman J, giving the second judgment of the court, said this at paragraphs 31 to 34:

"31. Before the master, the application for two experts in the field of obstetrics seems largely to have been based on the argument of 'equality of arms'. The master rejected that argument since he drew a sharp distinction between witnesses of fact and expert witnesses. Of course that distinction does exist. It is an important one, and it underpins the scheme of Part 35 of the CPR. But in my view it should not obscure the realities of a case such as this. As the master himself recognised, 'it is inevitable that a witness who happens to be a professional will give evidence of his actions based upon his or her professional experience and expertise...' It is, in my view, not only inevitable but appropriate, for no professional person can explain or justify his or her actions and decisions save by reference to his or her training and experience.

32. In my view this is of particular relevance to an action which alleges professional negligence, governed by the Bolam test. When a court is considering what practices may be adopted by a responsible body of medical opinion, it seems to me impossible to exclude evidence given by two doctors, now both of consultant status, of their own experience, however much they may be labelled and confined as 'witnesses of fact'. The reality is that they have and profess expertise and, if credible, their evidence based on their experience and expertise cannot be ignored. So in my view there is an issue of equality of footing if the claimant is only permitted to call one obstetric expert while the defendants can rely upon two consultants plus an expert. However that is not decisive, for equality of footing is only one of the considerations in the overriding objective.

33. We were told that the overall value of the claim in this case may be around £1.5 million. The case is a very important one to both sides. The claimant is physically impaired for her entire life by cerebral palsy. If that was the result of negligence at the very moment of her birth, the issue in the case is of the utmost importance both to her and to her family. For the doctors who face an allegation of professional negligence the case is obviously very important, too. The estimated additional fees of the second expert is around £8,500 if he attends three to four days of the trial. The estimated added length to the trial (whose overall estimate is five days) is about two hours. In my view the balance of these considerations does make it proportionate and just as between the parties that this claimant is permitted to rely upon the reports of two obstetricians, not one; and the additional costs to public funds and share of the court's resources is also proportionate and just.

34. I wish to stress, as I have already indicated, that I take into account that the action relates to professional negligence and that the Bolam test will apply. I do not wish to give any encouragement at all to the instruction of a second expert in a given field in other types of case which are concerned only with establishing medical facts, not making judgments about professional competence; for example, but only by way of example, in deciding disputed issues of medical fact in public or private family law cases."

And now resuming my judgment, having dealt with what Holman J said in the case of ES, the third judgment in ES was given by Kennedy LJ. Kennedy LJ indicated that he was unimpressed by the Respondent's argument that the Respondent would only be calling one expert witness with the other two being witnesses of fact. Kennedy LJ then went on to say at paragraph 43, which I read in full:

"43. In my judgment the importance of this case is that it affords an opportunity to emphasise that:

(1) the general rule must be as envisaged by Master Ungley, namely that in the vast majority of cases there should be no more than one expert in any one speciality, but -

(2) The court must recognise that it has the discretion to be flexible in response to the facts of an individual case. The underlying question to be asked is whether additional expert evidence will assist the court to do justice, and to be seen to do justice between the parties;

(3) The present case is an appropriate case in which to exercise the discretion, because

(a) the claim is very substantial and is of great importance to the claimant. It is also of considerable importance to Mr Downes;

(b) because time has gone by and Mr Downes has been successful in his career he is no longer a registrar at a non-teaching hospital. He is a consultant, and he and Mr Krishnamurthy are able to provide not only factual but also expert evidence to assist the respondents' case. It is common in this type of litigation to have a clinician and an expert from the same discipline, but it must be rare to have two such senior clinicians being called to give evidence in the first place in relation to the facts;

(c) The additional costs likely to be incurred as a result of the appellant being allowed to call a second obstetrician are, in the context of a claim of this size, unlikely to be significant, and there is no reason to think that today's decision will delay the trial."

15. Mr Wilson-Smith, Queen's Counsel, on behalf of the Claimant, submits to me that the present case shares many features in common with the case of ES. He listed in his skeleton argument at paragraph 10, the following features, which he says are common to both: That it involved a birth injury with similar facts; that the central allegations of negligence relate to the activities of the treating obstetrician; that the Claimant developed cerebral palsy; that the claim was substantial; that the main liability issues involved the application of the Bolam test; that the Claimant was in receipt of Legal Service Commission funding; and that the Claimant was seeking to instruct a second obstetric expert, because the Defendant was relying upon witness evidence coming not only from its obstetric expert, but in ES, from two consultant obstetricians and here from one consultant obstetrician. So, says Mr Wilson-Smith, the only significant difference is that in ES there were two obstetricians called as witnesses of fact, whereas here there is to be only the one. That, however, he submits, is not a difference which is fatal to this appeal. He points to a particular feature of this case, to which I will come in a moment, and submits that Master Yoxall fell into error. This is, submits Mr Wilson-Smith, an exceptional case and having two obstetric experts for the Claimant is just in all the circumstances.
16. The particular feature of this case, which Mr Wilson-Smith emphasises is this: he suggests to me that it is highly unusual in a case of this general nature, for all of the allegations of negligence to be directed to the treating doctor who was of consultant status. Mr Wilson-Smith recognises that it is perfectly common for actions of this general nature to involve allegations of negligence, which include negligence on the part of a consultant or consultants, but, suggests Mr Wilson-Smith, in the ordinary way the consultant has been called in after the emergency has arisen as a result of some alleged negligence on the part of a junior medical practitioner. Here, Mr Wilson-Smith emphasises, it was a consultant who took over the conduct of the delivery from the midwives and who was solely responsible for the alleged negligence.
17. Mr Wilson-Smith submits to me, and it is not disputed on behalf of the Defendant, that the additional cost, both in money terms and in terms of the length of trial of including a second expert witness for the Claimant, would be comparatively modest and certainly not disproportionate to the overall length of trial and overall costs of this litigation. That part of Mr Wilson-Smith's submissions is, as I say, not contested on behalf of the Defendant and I accept that it is correct.
18. What is submitted on behalf of the Defendant is that there is here a clear and decisive difference between this case and ES. Mr Manknell submits that it is clear from the judgments in the Court of Appeal, that it was the prospective imbalance of having in effect three experts giving evidence for the Defendant, but only one giving evidence for the Claimant, which was identified as the exceptional feature justifying a departure from the normal rule in that case. Mr Manknell points out that it is a feature which is not present here. This case, he says, far from being exceptional, is actually typical of many cases of this general type. Mr Manknell goes on to place emphasis on what he submits are the real limits upon the evidence Mr Forbes will be able to give in this trial. It is clear that he will give evidence of what he did and why he did it, and Mr Manknell recognises that the reality of the situation is that in giving that evidence, Mr Forbes will justify and explain his conduct by reference to his own experience and expertise. But, says Mr Manknell, what he will not be doing is giving independent evidence as to the standard of care reasonably to be expected of a competent obstetrician at the time, nor will he be giving independent expert evidence on the important issue of medical causation.
19. In my judgment, the prospective imbalance of three experts on the one side against one on the other side was a highly important feature in the case of ES. That case did not decide that it will never be appropriate for one party to be permitted a second expert unless there is such an imbalance, but it does make clear that there has to be something in the circumstances of the case which makes it just in all the circumstances to depart from the normal rule and to take the exceptional course of permitting a second expert.
20. I entirely agree with Mr Wilson-Smith's opening submission to me, that the decision on an issue such as this must necessarily be specific to the overall facts and circumstances of the individual case, and that neither the decision of Master Yoxall, nor any decision I make on this appeal, should be regarded as being of any wider application.
21. The parties are agreed that the actions and omissions of Mr Forbes are to be judged against the standards of a reasonably competent obstetrician at the time. It seems to me necessary to consider whether it is the case that the court needs the assistance on those standards of a second independent expert on the Claimant's side. I accept that when he gives evidence, Mr Forbes will inevitably display and rely upon his experience and expertise and I accept that that experience and expertise may carry weight with the trial judge. But it does seem to me that that will be so in most cases involving allegations of clinical, or indeed any sort of professional negligence. It seems to me that that will be a commonplace feature of actions for clinical or professional negligence, because if the judge hearing the evidence forms the view that the professional person accused of negligence appears to be, in general, a professional person of competence, that is inevitably a factor in determining whether or not on the particular occasion that professional person has fallen below the standard of care to be expected of him. So in very many cases, and I would suggest in most actions for clinical or professional negligence, the judge will be confronted by a consideration of that nature.
22. I am not persuaded that in the present case Mr Forbes is of such exceptional eminence or expertise as to justify a departure from the normal rule. The judge who tries the action will have the assistance of an independent expert witness on each side. He will hear, of course, the evidence of Mr Forbes, and it will no doubt be submitted to him on behalf of the Claimant, that he should bear in mind that Mr Forbes cannot be regarded as independent. Further, if it seems appropriate to counsel for the Claimant at trial to do so. The trial judge will no doubt also be invited to bear in mind, when assessing Mr Forbes' evidence, that Mr Forbes enters the witness box with the advantage of being an experienced expert who has, it is to be assumed, given expert evidence on occasions in the past. But it does seem to me that those features of the case are familiar features in many cases of this nature.
23. Mr Wilson-Smith confirmed to me that in broad terms the second expert witness whom he wishes to call would be intended to cover the same ground as the first and, albeit from perhaps a different standpoint, to come to the same conclusions as the first. It does seem to me to be implicit in that, that at the end of the trial the Claimant would be wishing to rely upon the support for his case of two independent experts, and it seems to me likely that the Claimant would wish to draw a distinction between those two independent experts on the Claimant's side and only one independent expert, coupled with an expert who was the treating doctor whose conduct is impugned, on the other side. Insofar as that is implicit in the submissions made to me, I do not regard that as something which can properly take this case into the exceptional category so as to justify a departure from the normal rule limiting the expert witnesses to one on each side in each discipline.
24. I have endeavoured to balance and to weigh all of the factors to which I must have regard in the light of the judgment of the Court of Appeal in ES, which I have cited. Mr Wilson-Smith opened the appeal by suggesting to me that this may very largely be a matter of impression, and I think there is much force in what he says.
25. My conclusion is that the circumstances of this case are not exceptional when compared with other actions of the same general nature. I, of course, fully understand the concern that if the Claimant were to lose at trial there would, or might be an appearance of injustice, but the answer to that concern, in my judgment, is that there could only be an appearance of injustice if it were thought that weight of numbers is the decisive factor when the court is evaluating expert evidence. It is not the decisive factor. A trial judge will assess the evidence of the independent expert on each side and he or she will assess the evidence of Mr Forbes in the knowledge both that Mr Forbes was the treating doctor and that Mr Forbes is a man experienced in giving evidence in cases of this general kind.
26. For the reasons which I have endeavoured to explain, I am not persuaded that Master Yoxall was wrong. On the contrary, his view of the matter accords with my own. This appeal must accordingly be dismissed.
____________________________