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
		7 December 2011

THE JUDGE:

1. This is a clinical negligence claim brought by the claimant, Mr Paul Wright, against the defendant Trust, arising out of the surgical treatment of the claimant at the Trust's hospital at Basildon between July and September 2004. The matter is listed for trial at this court on Monday 12 December 2011, that is the beginning of next week, with a time estimate of five days.
2. The present application is made by the defendant for summary judgment in the defendant's favour in respect of all issues raised against it, save for one issue, on which judgment has already been entered by consent. The defendant says that, in respect of the remaining issues, the claimant has no real prospect of succeeding in his claim, and that there is no other compelling reason why those remaining issues should be tried.
3. In summary, the claimant was admitted to the defendant's hospital on 26 July 2004 with severe acute pancreatitis. On 29 July, his condition having deteriorated, he was admitted to the defendant's High Dependency Unit, and on 30 July to its Intensive Therapy Unit. His condition was life-threatening. By 9 August 2004 he had developed abdominal compartment syndrome and on 10 August 2004 he underwent surgery, viz pancreatic necrosectomy. The wound was intentionally left open and on 12 August 2004 was closed with the use of a Bogota bag. On 20 August 2004, it being apparent that the laparostomy bag had come loose, a new bag was sutured in place under Propofol. On 15 September 2004 the bag was ordered to be removed (without anaesthetic). The staff nurse was unable to remove all of it. The specialist Registrar purported to remove all of the remainder of it. He did not in fact do so, with the result that a piece of the bag measuring, it is said, some one to two inches, was retained. It was finally removed (without anaesthetic) on 5 September 2005.
4. The defendant admits that, in allowing a piece of the bag to be retained, it acted in breach of its duty of care. On the defendant's case, that breach caused the claimant to suffer a sinus wound discharge from 24 March to 5 September 2005. On 30 October 2005, on the defendant's case, the wound was found to be completely healed.
5. Judgment was entered by Order of Master Yoxall on 16 October 2009 in respect of the admitted breach of duty, with damages to be assessed. In addition, however, to allegations arising out of the leaving in situ of the Bogota bag, the claimant raises allegations that surgery was performed upon him without his consent, that unnecessary surgery was carried out upon him, and indeed that barbaric and experimental surgery was carried out. Such additional allegations are vehemently denied by the defendant and remain firmly in issue.
6. The defendant relies on the expert evidence of Mr WEG Thomas, Consultant Biliary-Pancreatic Surgeon, and his report of 5 June 2010 is before me. Mr Thomas supports the defendant's case in all respects, save for the matter admitted by the defendant and in respect of which judgment has been entered. In addition, the defendant relies on the evidence of Mr Khan, the operating surgeon, Dr Al Hameed, Consultant Anaesthetist, and Dr Subhani, Consultant Gastroenterologist, all of whom treated the claimant.
7. The claimant seeks to rely on the evidence of Professor Neoptolemos, Consultant Surgeon, whose reports of 23 March, 25 September and 26 November 2009 are before me.
8. On 17 June 2011 it was ordered that the experts, Mr Thomas and Professor Neoptolemos, meet by 14 October 2011 to discuss liability, condition and prognosis. On 26 September 2011, as appears from the witness statement of 23 November 2011 of Julie Charlton of the defendant's solicitors, Miss Charlton spoke to Professor Neoptolemos' secretary, since by that time the claimant's legal advisor, Mr Rusz, was evidently no longer acting and the claimant was declining to respond to calls. Miss Charlton was told on 26 September 2011 that Professor Neoptolemos was no longer acting for the claimant and indeed the claimant himself confirmed that this was the case by a letter of 29 September 2011. On 10 October 2011 Master Yoxall ordered that, unless the experts met by 31 October 2011, the claimant would be debarred from relying on oral expert evidence at trial. The deadline of 31 October 2011 was missed. The claimant later sought to arrange an experts' meeting on 25 November 2011. Meanwhile, on 15 November Professor Neoptolemos' secretary confirmed, once and for all, that Professor Neoptolemos would not meet with the defendant's expert on 25 November and that he had withdrawn from acting on the claimant's behalf.
9. On 15 November 2011, the claimant applied to Master Yoxall by way of a written application (which is in the papers before me) for permission to instruct a fresh expert, one Professor Nigel Heaton, and also for an extension of time for an experts' meeting. The principal reason given for the proposed change of expert was that Professor Neoptolemos had been supplied with adverse information about the claimant's bona fides, and "We believe that there arose a conflict of interest and that the Professor would not act in the best interest of our client". This proposition is not entirely consistent with an email of 7 November 2011 (now before me) from Professor Neoptolemos' secretary to the claimant's solicitors, which refers to a letter of 31 October 2011, notifying Professor Neoptolemos of a 5-day trial beginning on 12 December, and states that Professor Neoptolemos will not be able to meet such a commitment due to prior heavy commitments. I am bound to wonder whether the real reason for the application of 15 November was Professor Neoptolemos' unavailability at trial.
10. Be that as it may, Master Yoxall considered the written applications on 24 November 2011 and dismissed them. He also ordered on that date that any application to vary or set aside be made within seven days. No application was made to vary or set aside the order made on 24 November. The claimant therefore currently stands debarred from adducing oral expert evidence.
11. The defendant applies today for summary judgment against the claimant in respect of all issues in the case, save the issue on which judgment has already been entered in the claimant's favour. The application is made under the provisions of Part 24.2, which provides that:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue… and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial."

I have in mind all of the notes which appear in the Civil Procedure Rules on pages 658, 659 and onwards in the current edition, but in particular these lines at note 24.2.3:

"In order to defeat the application for summary judgment, it is sufficient for the respondent to show some prospect, i.e. some chance of success. That prospect must be 'real', i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word 'Real' means that the respondent has to have a case which is better than merely arguable ..."

12. The application before me today is also made by way of parallel application under Part 3.4, which relates to striking out a statement of case. Under 3.4(2):

"The court may strike out a statement of case if it appears to the court-

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

(c) that there has been a failure to comply with a rule, practice direction or court order."

Although the application is made under Part 3.4 in parallel, it seems to me that the defendant today proceeds principally under 24.2.

13. Essentially, the defendant says that the claimant must prove his case in clinical negligence and must do so with compelling evidence. An allegation under well-known Bolam principles, that treatment has fallen below acceptable standards, must be supported by evidence, and the defendant says that the claimant has no evidence, save the written evidence of Professor Neoptolemos, if the trial judge were to admit that written evidence. Since I may or may not be the trial judge in this case, I shall not make a ruling now on the admissibility of Professor Neoptolemos' written evidence, but for the purposes of this application today I shall assume, in the claimant's favour, that that evidence is admitted at trial in writing. The question then arises: if Professor Neoptolemos' evidence in writing is placed before the court at trial, will the claimant have a 'real prospect' of succeeding on the remaining matters at issue?
14. Mr Spencer-Lewis, who has been instructed very recently on behalf of the claimant, seeks to oppose the application on grounds of justice and fairness. He also seeks an adjournment of the trial, if that be necessary, so that the claimant may obtain a report from yet another expert, a Mr Parthi Srinivasan, who, by a letter of 6 December 2011, that is yesterday, says that he has seen Mr Wright and is willing to act as expert witness. Mr Srinivasan says nothing in his letter of his opinion on the case, on its merits or otherwise, or of his availability to give evidence at trial next week. I regret to say that the claimant's proposal to instruct Mr Srinivasan is a gesture which is simply too little too late. The application to change experts was made before Master Yoxall on 24 November and was dismissed, and no application was made within the time allowed to vary or to set aside that order. It is now effectively three working days before trial. The applications to adjourn and/or to instruct yet another expert are made far too late and those applications are dismissed accordingly.
15. I return to the question whether, given for these purposes that Professor Neoptolemos' written evidence is before the trial judge, the claimant's case on the matters still in issue has a 'real prospect' of success. Since Professor Neoptolemos will not be giving sworn evidence, nor will he be giving evidence which is tested under cross-examination, and since Mr Thomas will give sworn evidence and will be supported by the evidence of the treating doctors, it is my judgment that the claimant has no real prospect of discharging the heavy burden of proof which lies upon him. In reaching the decision which I do reach in this application, I am particularly mindful of the overriding objective, of the requirement that the court should deal with the case justly, expeditiously and fairly, of matters of proportionality and of appropriate use of the court's resources. But ultimately, with regret but without any hesitation, I find that, given the evidence now available and the evidence which will be presented, on the assumptions I have made, to the trial judge, the claimant's case on the outstanding issues has no real prospect of success. In those circumstances, in my judgment, the defendant is entitled to summary judgment in its favour on those issues accordingly, and that is my ruling on that application.
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