LATE EXPERT EVIDENCE, DENTON AND WAVING A FINGER IN THE AIR

The decision of the Court of Appeal in O’Connor -v- The Pennine Hospitals NHS Trust [2015] EWCA 1244 will receive much attention for the important observations made as to evidence, proof and “res ipsa loquitur”.   However here I want to concentrate upon the appeal in relation to the judge’s refusal to allow the defendant to adduce expert evidence. There are also important comments on bundles in the Court of Appeal. For once the bundle was not too long, it had important information missing.

“The appeal did not get off to a good start. No photographs, diagrams or plans were available to show the location of the various abdominal organs and nerves or how they fitted together. Mr Feeny valiantly did his best, by waving a finger around in the air to show us what was what. That was hardly ideal. We then adjourned for ten minutes while counsel hastily prepared a rough sketch plan for the assistance of the court.”

“I do not see how a decision to abort a clinical negligence trial on day 1 for the benefit of a dilatory defendant could possibly be justified.

KEY POINTS

  • The Court of Appeal upheld the decision of the trial judge who refused the defendant permission to rely on and additional expert witness. The application having been made late in the day.
  • An appeal bundle should normally contain diagrams and material which would allow the court to understand the background to the case.

PRACTICE POINTS

  • The key aspect here is to review evidence and make applications well before the trial date.
  • Appeal bundles should have the necessary diagrams and material. Particularly when the findings are in relation to findings of fact.

THE CASE

  • The claimant brought an action for clinical negligence because of injury to her femoral nerve during an operation.
  • Each party was given permission to rely upon three expert witnesses.
  • After the joint meetings the defendant sought permission to rely upon the expert evidence of a Professor Aitkenhead.
  • The District Judge refused that application and gave the defendant permission to put questions to one of the claimant’s doctors instead.
  • The defendant did not appeal that decision, nor did they apply to review the decision once they had received a reply from the claimant’s doctor.
  • At the beginning of the trial the defendant sought permission to rely upon Professor Aitkenhead.
  • That application was refused by the trial judge on the grounds that developments did not justify a new report; the application was first foreshadowed in the defendant’s skeleton argument; it would lead to the trial being adjourned and costs increasing; the 2013 reforms militated against an adjournment being allowed.

THE COURT OF APPEAL ON LATE ATTEMPT TO RELY ON EXPERT WITNESS

Jackson LJ’s view was put fairly bluntly.
Part 5. Did the judge err in refusing to allow additional expert evidence?
  1. This ground of appeal is so obviously misconceived that I hope the parties will forgive me for dealing with it in short order.
  2. The views of the expert witnesses developed as more factual evidence became available and as discussions between the experts proceeded. For example, the views of Mr Desmond changed both dramatically and favourably to the defence case when he prepared his second expert report in August 2013.
  3. The main change of opinion on the part of Dr Simpson occurred in April 2013, when she responded to the defendant’s questions pursuant to District Judge Hovington’s order. Dr Simpson’s further shift of opinion between April and September 2013 was more modest. Indeed the only reason for her letter of 22nd September 2013 was the need for an expert response to Mr Desmond’s report dated 10th August 2013. The proposition that Dr Simpson’s change of emphasis in her September letter somehow entitled the defendant to bring in a new expert witness is untenable.
  4. There are also wider considerations in play. The application for permission to call an additional expert was made at the latest possible stage, namely on the first day of trial. If the judge had granted the application, that would have necessitated an adjournment of the trial with consequential delay and massive extra costs.
  5. Following the civil justice reforms of 2013, that is simply not how we do things now. See the majority judgment of the Court of Appeal in Denton v T.H.White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926. Also – dare I say it – paragraph 89 of the third judgment in Denton is directly pertinent.
  6. If the judge had granted the defendant’s application, I imagine that the claimant would have launched an urgent appeal. Even though the issue was one of case management (where judges have a broad discretion) I do not see how a decision to abort a clinical negligence trial on day 1 for the benefit of a dilatory defendant could possibly be justified.
  7. I would therefore dismiss the defendant’s first ground of appeal.

MORE ABOUT BUNDLES

  1. The appeal did not get off to a good start. No photographs, diagrams or plans were available to show the location of the various abdominal organs and nerves or how they fitted together. Mr Feeny valiantly did his best, by waving a finger around in the air to show us what was what. That was hardly ideal. We then adjourned for ten minutes while counsel hastily prepared a rough sketch plan for the assistance of the court.
  2. In any case involving medical, engineering or other scientific issues the bundle should include any necessary drawings or photographs, so that the court can readily understand the technical background and context. Such material is normally provided to the court as a matter of routine. This case is an unfortunate exception.

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