Bot v Barnick and Others [2019] EWHC 3704 (QB)
This article originally appeared in Issue 4 (March 2020).
The facts
The claim arose out of allegedly negligent care given to the Claimant at the Portland Hospital following the birth of her child in 2011, during the course of which she developed post-partum psychosis.
Procedural History
The claim was issued in December 2016, and directions were first given in January 2018. A full set of case management directions included directions for the service of expert evidence. The case was due to be tried in a window from 24 February to 4 March 2020. The directions had subsequently been varied on a number of occasions by consent, with the time for service of the expert evidence being extended. Both parties were given permission to rely on liability evidence in the fields of obstetrics and psychiatry, and each party was given permission to rely on condition and prognosis evidence from a psychiatrist. The Claimant had failed to serve any obstetric liability evidence. The Defendant had been unable to serve condition and prognosis evidence due to difficulties in getting the Claimant’s attendance at an examination.
Conclusion
Yip J held that the Claimant had failed to prosecute her claim expeditiously – in particular by failing to serve any supportive expert evidence against the First Defendant (an obstetrician). It was in the interest of the Defendants who had the allegations of professional negligence ‘hanging over them’ that the matter was dealt with promptly, and it was also in the Claimant’s best interest to bring the case to a final conclusion. Finally, it was in the interests of other litigants that the court time is used effectively.
Yip J commented favourably on the reasonable and unaggressive approach taken by the Defendants’ legal representatives as indicating that they had done everything they could to progress the case to an end point. She held that:
“The court should not penalise parties who act in that way and who do their very best to resolve things without making robust applications. But the time has come where the defendants can legitimately say that they would be prejudiced by being required to proceed in February.”
Yip J granted the First Defendant’s application to have the claim against him struck out, holding that:
“the first defendant is entitled to say that this claim has been going on long enough and that, in the absence of an expert report from the claimant, he should not be expected to wait indefinitely to see the substance of the case against him and the evidence that is relied upon in support of that case. As is well known, claims against professional people should not be maintained in the absence of supportive expert evidence. It is inappropriate, in my judgment, for the claimant to maintain this action against the first defendant if she does not have an expert opinion to support that claim. If she did have supportive evidence, it would be expected that it would have been served by now, and, in the absence of anything to suggest that within a reasonable time such evidence is likely to be forthcoming, it seems to me that the court must act now and consider whether this matter can properly proceed any further.”
There was no suggestion that there was:
“some particular problem that has prevented the claimant complying or any indication that the position is likely to be remedied within a short space of time.”
The claim was accordingly struck out under CPR 3.4(2)(c) for a failure to comply with the directions given, in particular with the ‘final’ extension of time by consent on 11 September 2019 to 18 September – even though that extension had not been couched as an ‘unless’ order.
Comment
For both claimants and defendants, this case is of course a reminder of the importance of complying with directions. However, more interestingly, it also demonstrates that judges do on occasion take note of the tone and manner in which parties attempt to resolve issues of delay and requests for extension, and may be potentially more receptive to an application that is clearly necessary rather than one that could be seen as more tactical or opportunistic.
