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
		9 November 2015

HHJ Burrell QC :


 


1. There are two applications before the court which are intertwined and closely related. There is the claimant's application dated 21^st September 2015 for an order debarring the defendant from relying on the second report from their expert, Mr Kambourolgou, (consultant orthopaedic surgeon) dated 4.8.15 and the defendant's application dated 18.9.15 to withdraw its "admission" in relation to breach of duty in para 5 of their defence.
2. I deal first with the defendant's application to withdraw the "admission".
3. The claimant's pleaded case is in negligence and relates to arthroscopic shoulder surgery carried out at the defendant's hospital on 12.8.11. In the post operative instructions the surgeon directed that physiotherapy should commence "asap". However no physiotherapy started until 14.9.11 by which time the shoulder was stiff and painful. The claimant has now been left with a poor result from what should have been a straightforward procedure.
4. In a rather unusual pleading in the defence the defendant pleaded as follows;

"if the facts alleged in the Particulars of Claim and in particular the allegations that Mr Al-Sabti intended to refer the claimant for physiotherapy as soon as possible but that the claimant was offered no such physiotherapy until October 2010 [NB this date does not come from the claimant] are correct then breach of duty as alleged in paragraph 21 of the particulars of claim will be admitted unless the records reveal some good reason why such physiotherapy was not offered. As hereinbefore appears the defendant has yet to verify those allegations or identify whether there is some good reason why physiotherapy was not offered (if it was not)."

5. Is this an admission of breach from which the defendant requires permission to withdraw? In my judgment, this is a qualified admission of breach i.e. conditional upon the claimant proving the matters contended for. In particular, it was not pleaded that physiotherapy was in fact provided within a reasonable time frame nor that that any failure to provide physiotherapy was in accordance with and supported by a responsible body of medical opinion.
6. It is difficult to understand how and why the defendant put it's case in this way at this stage. Mr Lemmy, for the defendant says it was probably because no or no sufficient medical records were provided to the defendant at the time the pleading was settled however the medical records appear to have been provided to the defendant on 18.8.14, before the defence was settled. In any event, the defendant could have applied for an extension of time for service, if the notes were needed before drafting.
7. In my judgment the pleading is an admission of breach albeit a heavily qualified one and despite the conditional nature of this admission, the defendant does require permission to withdraw it in these circumstances. The defendant is now in possession of the report from Mr Kambourolgou of 4.8.15 but has no permission to rely on the same if that report can be said to deal with breach. There is no question but that the report does purport to provide an opinion on breach – see paras 4.4, 4.5, 4.6, 4.7, 4.8, 4.9, 4.10, 4.12 and 4.13.
8. CPR Part 14 and Woodland v Stopford [2011] EWCA Civ 266 are relevant. See The White Book, Vol. 1 at page 451- the following matters are relevant to the exercise of my discretion namely:

i) The parties' conduct. The claimant's solicitors have clearly proceeded on the basis that there was a conditional admission of breach of duty- see their letter of 4.6.15.

ii) It is difficult to accept that the defendant's solicitors were proceeding on the basis that breach of duty was really in issue given that the contents of their expert's report of 10.2.15 did not address breach at all but dealt only with causation.

iii) There was no prompt application to withdraw the "admission"

iv) In granting permission to withdraw, there will be inevitable prejudice to the claimant in that breach of duty will become an issue in the trial; additional costs will be incurred through a requirement to seek a further report from Mr Bayley (claimant's expert), there is likely to be a lengthening of the trial hearing from a causation only hearing to a breach and causation hearing; and of course, the claimant's liability report will not have been simultaneously exchanged as ordered by the Master.

v) There is no significant prejudice to the defendant as their expert appears to have,... at least in part ) changed his view on breach to that as expressed in the joint experts' meeting. On any view, he seems to have withdrawn from opinions expressed in his report of 4.8.15. If there is no express withdrawal, there is certainly major inconsistency. This obviously deleteriously affects the defendants' prospects of success in any contest on breach.

vi) If I allowed withdrawal, the defence would require amendment.

9. If I allowed withdrawal, it would be inconsistent if I did not also allow the defendant to rely on the second report from Mr Kambourolgou. If that were to happen then the requirement for simultaneous exchange of liability reports will have been avoided.
10. The essence of the problem seems to have stemmed at least in part from a lack of understanding of the issues by Mr Kambourolgou, and/or possibly by his change of mind on liability compounded by an enigmatic defence pleading.
11. In all the circumstances, it is not in the interest of the good administration of justice to allow the defendant to withdraw the matters pleaded at para 5 of the defence. Pleadings still mean something and must be carefully drafted before service, setting out in clear unambiguous terms the nature of the relevant parties' case. This is with a view to narrowing any issues between the parties, keeping litigation within manageable means, and helping the court in its subsequent resolution of issues which is entirely in line with the overriding objective.
12. Permission to withdraw the admission is therefore refused.
13. I deal next with the claimant's application. It would obviously be inconsistent if I refused permission to withdraw the admission as I have and yet allow the defendant to rely on the second report from Mr Kambourologou. Hence my decision to refuse the defendant's permission to withdraw their " admission" necessarily informs my discretion as to whether to grant the claimant's application.
14. As I have already referred to, there is no doubt in my mind that the 4.8.15 report from Mr Kambourolgou is a report commenting on breach i.e. a report on liability. He states in that report that a responsible body of opinion would consider physiotherapy not to be necessary. This contrasts with the joint opinion he later expresses with Mr Bayley to the effect that he agrees there is no reasonable body of orthopaedic surgeons that would consider physiotherapy unnecessary following routine arthroscopic decompression of the type performed on the claimant. The two views are diametrically opposed. This joint statement is dated 17.9.15. it is right to note he does however also say that a reasonable period within which to start physiotherapy would be 3-6 weeks hence, in his view the claimant's physiotherapy started within a reasonable time frame notwithstanding postoperative instruction to the effect that it should start as soon as possible.
15. It follows that the report of 4.8.15 being in essence, a liability report albeit with some views also expressed on causation was not served in accordance with the Master's directions. The criteria to apply which must inform my discretion is the same criteria for relief against sanction as out of time applications see Altomart Ltd v Salford Estates(No2) [2014] EWCA Civ 1408.-the defendant cannot rely on this report without permission and it has not actually made such an application – hence the claimant's application. I bear in mind the criteria set out in Denton v TH White Ltd [2014] EWCA Civ 906. The following matters are relevant.

i) The issue on breach now raised in the second report from the defendant's expert is inconsistent with the admission pleaded in the defence.

ii) That second report has the appearance of having been drafted after sight of the claimant's expert report from Mr Bayley in the sense that it has been informed by it- this is of course in consequence of the fact that liability reports were not exchanged in accordance with the Master's order. If this were the case, then it would be plainly unfair to the claimant to allow the defendant to rely on it.

iii) The second report from the defendant's expert was served one and a half months after the time for report exchange had expired. That breach of a court order is serious and significant.

iv) No credible explanation has been put forward by the defendant's solicitors as to why this all came about. As I have previously referred to, on the face of it,it seems to result from a failure on the part of Mr Kambourolgou to initially address the relevant issues in his first report then to try to redeem the matter in his second. The matter may have been compounded by a prematurely pleaded defence or possibly one not based on a proper consideration of the defendant's own case. It is difficult to know. To delve further would be unduly speculative. I note the claimant argues that the second report from Mr Kambourologou was prompted following a decision by the defendant to reconsider its position on breach. I do not think enough is known to come to that conclusion but it is a feasible explanation which is consistent with what appears to have happened. On any view, Mr Kambourolgou has provided two inconsistent liability reports.

v) All matters I have set out above in relation to the defendant's application to withdraw the admission. See para 8 (a) to(f).

16. In all the circumstances of the case and bearing in mind the above, in my judgment it would not be in the interests of justice nor consistent with the overriding objective to allow the defendant to rely on the report from Mr Kambourologou dated 4.8.15 save for those parts of the report which deal with causation and prognosis only.
17. It follows that the claimant's application is successful and the defendant's application fails in that [the following in italics is added by way of addendum] I am refusing them permission to rely on those parts of the second report from Mr Kamourologou' dated 4.8.15 which deal with breach of duty. For the avoidance of doubt, the defendant has permission to rely on those parts of his report which deal with condition and prognosis including any from his first report and any from the joint report with Mr Bayley.
18. I will leave counsel to agree the order and I will deal with any consequential matters that cannot be agreed at another hearing if necessary.