[2004]JRC136
royal court
(Samedi Division)
9th August, 2004.
Before: |
H.W.B. Page, Esq., Q.C., Commissioner, sitting alone. |
Between |
Tyrone Nicholson (by his curator Carol Elizabeth Canavan [née Griffith]) |
Plaintiff |
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And |
Health and Social Services Committee |
Defendant |
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Action for damages - Plaintiff sustained serious brain-damage and consequential lifelong impairment of many of his faculties at time of his birth.
Reasons for the decision on the Plaintiff's application on 29th March, 2004, for leave to call two additional witnesses and for an Order for further discovery against the Defendant.
Advocate N.M. Santos Costa for the Plaintiff.
Advocate D.M. Cadin for the Defendant
judgment.
the COMMISSIONER:
1. On Monday 29th March 2004, sitting in Chambers without Jurats Tibbo and Clapham, I heard an application by Advocate Santos Costa on behalf of the Plaintiff for leave to call two additional witnesses, Dr. Donald Sayers and Mrs. Sheila Tranter and for an order for further discovery against the Defendant. The application was supported by an affidavit from Mr. Carl Ashcroft of Crill Canavan, the Solicitors and Advocates acting for the Plaintiff (subsequently corrected in one respect by a letter dated 26th March 2004 addressed to the Bailiff's Judicial Secretary) which in turn exhibited affidavits by Dr. Sayers and Mrs. Tranter. Having heard submissions from Advocate Santos Costa and from Advocate Cadin on behalf of the Defendant, the latter strongly resisting all aspects of the application, I (i) gave leave for Dr.Sayers to be called, (ii) refused leave for Mrs. Tranter to be called, and (iii) refused the further discovery application. I am now asked to give my full reasons in writing (given only summarily at the time). They were as follows.
The timing of the application
2. The application was made at a very late stage in the trial. By 29th March 2004 the trial was approaching its closing stages: the Plaintiff's case had long since been closed; the witnesses for the Defence other than Dr.Williams had given evidence; following a two-week adjournment part-heard, the trial was about to resume for the final two days on 30th and 31st March 2004 for the purpose of hearing the evidence of Dr.Williams and for closing speeches. In these circumstances, it appeared to me that it would require very good reasons to justify the Court acceding to any part of the application at such a late stage.
Dr. Sayers
3. The application to call Dr.Sayers was prompted by two developments. The first was the suggestion advanced by Mr. Cadin during his cross-examination of Professor Myerscough and Professor Taylor, expert witnesses for the Plaintiff, that the only reasonable explanation for the caesarean section being arranged for 5.00pm was that the time was dictated by the availability of an anaesthetist - though the point was canvassed somewhat differently with the two witnesses. In the case of Dr. Myerscough, Mr. Cadin indicated that he would be inviting the court to conclude that Dr. Sayers was out of the Island on 16th August 1977 (proceedings on the morning of 10th March 2004); and in the case of Professor Taylor, that, at the time when the emergency at issue in the present case arose, the duty anaesthetist might have been already engaged in another surgical operation (morning of 11th March 2004). Neither hypothesis had been canvassed in the Defendant's pleadings.
4. The second development was that, as a result of this line of questioning, Dr.Sayers was contacted and interviewed by Mr. Ashcroft on behalf of the Plaintiff. Dr. Sayers made it clear that he had no recollection of the events in question, but it emerged that he had retained his diary for 1977 and that the page for 16th August that year contained a number of entries including one that appeared to read '5 15 Caesr'. (This diary - extract had in fact been made available by Dr. Sayers to Galsworthy & Stones, solicitors acting for the Medical Defence Union who were representing him personally, back in September 2000; but its existence had, it seems, never previously been known to the representatives of either party to the litigation.)
5. Given (i) the hypotheses canvassed by Mr. Cadin in cross-examination with Professors Myerscough and Taylor, (ii) the existence of a contemporaneous record - of which both parties had previously been unaware - that appeared to show that Dr. Sayers was not out of the Island on 16th August 1977 but was engaged, for part of the day at least, in conducting his normal practice from his surgery, (iii) diary entries for that day that might on further examination have some bearing on his availability to have answered an emergency call that afternoon, and (iv) a specific reference to a caesarean section, it appeared to me that it would only be right to allow Dr. Sayers to give evidence, notwithstanding the stage that the trial had reached.
Mrs. Tranter.
6. Mrs Tranter was the Matron of the Maternity Hospital at the time in question and the senior mid-wife. Like Dr.Sayers she had no recollection of the occasion in question. But, unlike Dr.Sayers, in her case was there nothing that would have justified giving leave for her to be called so late in the trial. Mr. Ashcroft had interviewed her once before, in May 2003, and a decision had evidently been taken by those representing the Plaintiff not to call her as a witness. There was no suggestion that her evidence was necessary to rebut a point on which the Plaintiff had been taken by surprise; it was not as if she had belatedly found a significant contemporary record of some kind; nor was it as if she would have been able to reveal some matter of overwhelming significance that had previously been overlooked. Leave to call her was sought on the ground that she could give evidence about hospital systems and procedures at the relevant time. But this was nothing new: it had long since been evident that such matters would be likely to be in issue. And if the evidence for the Plaintiff on this subject were permitted to be supplemented at that stage of the trial, it was not difficult to see that Mr. Cadin might fairly have wanted a corresponding opportunity to do the same and - very possibly - a further adjournment in order to make appropriate inquiries.
7. Towards the close of day on 12th March 2004, the Court had indicated that it had noted the absence of any witness from the nursing staff who had attended Mrs. Nicholson on the day in question, the purpose being to give the advocates for each side the opportunity to comment on this feature of the case as they might wish in due course. But that by itself could not be a proper basis for subsequently giving leave to call further witnesses, in the face of what seemed to me - in the case of Mrs. Tranter - to be the entirely correct and forceful submission of Mr. Cadin that there was no justification for departing from the ordinary rules of procedure as regards the calling of evidence and every reason not to do so.
Discovery.
8. Having accepted, as I did, the assurance of Mr. Cadin that those representing the Defendant had not previously been in possession of a copy of Dr.Sayers's diary for 16th August 1977 - or indeed known of its existence - there appeared to me to be no reason to make any order for further discovery by the Defendants.
No Authorities