Quaatey v Guy’s & St Thomas’ NHS Foundation Trust [2020] EWHC 1296 (QB)
Magee v Willmott [2020] EWHC 1378 (QB)
This article originally appeared in Issue 6 (September 2020).
Introduction
“I eventually became proud of my strikeouts, because each one represented another learning experience.”
– Willie Stargell, World Series Major League Baseball champion in 1971 and 1979.
The requirement that clinical negligence claims be supported by expert evidence regularly vexes practitioners, all of whom will be familiar with the dicta in Pantelli Associates Limited [2010] EWHC 3189 that “it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise.”
CPR Practice Direction 35 reminds us that experts should provide opinions “on matters within their expertise” and should make clear when an issue falls outside their expertise (para 2.2, 2.4). Similar guidance is contained in the Guidance for the Instruction of Experts in Civil Claims (see paras 12, 16, 23, 24).
So far, so straightforward. And yet this requirement has provided fertile ground for strike out applications, such applications being permitted where a statement of case:
(a) discloses no reasonable grounds for bringing or defending the claim;
(b) is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or where
(c) there has been a failure to comply with a rule, practice direction or court order.
The QMLR covered the judgment in Bot v Barnick and Others [2019] EWHC 3704 (QB) here. That case concerned a successful strike out application granted in the face of the Claimant’s failure to serve any supportive evidence despite numerous extensions.
Two further decisions provide more guidance on considerations practitioners ought to bear in mind when contemplating strike-out applications for lack of expert evidence. Overall, these decisions reaffirm that strike-out may be appropriate if the evidence does not properly support the claim or has been served late.
Unsupportive expert evidence
In Quaatey v Guy’s & St Thomas’ NHS Foundation Trust [2020] EWHC 1296 (QB), Lambert J upheld the decision of Master Cook to strike out a clinical negligence claim. Strike-out had been granted by the Master on the basis that (i) the expert report relied on by the Claimant had only been served following a “generous extension of time” (para 10); (ii) there were significant problems with limitation; and (iii) the expert report did not support the allegations that were pleaded in the Particulars of Claim. The High Court was prepared to consider the appeal in the context of a further expert report which had also been made available [14], [20]-[21].
Lambert J upheld the strike-out, concluding that the expert evidence (even the updated evidence) did not properly support the allegations: “an allegation of professional negligence must be supported by a written report by an appropriately qualified professional” [22].
The decision essentially reaffirms the existing law, but also raises for discussion the appropriate avenue under the CPR for a defendant to have a clinical negligence claim dismissed at an early stage for want of supportive expert evidence.
It may be appropriate for an application for strike-out to be made on the grounds of an abuse of process under CPR 3.4(2)(b) if the claim was pleaded in the absence of supportive expert evidence (an option indicated at [8] and [14], citing Pantelli. Alternatively, strike-out may be made on the basis that the Claimant has no reasonable grounds for bringing the claim under CPR 3.4(2)(a).
Summary judgment may also be granted in the alternative, an option indicated at [14] of the judgment. But defendant lawyers will want to push for strike-out as their primary application, as if this is granted on the basis of ‘no reasonable grounds’ or ‘an abuse of the court’s process’ it would disapply QOCS protection and allow the defendant to enforce an order for costs without permission of the court (see CPR 44.15).
Finally, it is notable that the Claimant in this claim was a litigant-in-person – but nonetheless subject to the rules on strike-out for want of expert evidence under the CPR.
Late service of expert evidence
In Magee v Willmott [2020] EWHC 1378 (QB), Yip J considered the correct approach toward late service of expert evidence.
The Claimant had sought to introduce expert evidence, fully pleading a case on causation for the first time, at a late stage in proceedings and just over a month before a full liability trial was due to take place. The Defendant unsuccessfully sought to strike out the claim at the PTR, following which the Recorder granted the Claimant’s relief from sanctions application.
On appeal, Yip J found that the Recorder had erred in his approach. Per Denton v TH White Ltd [2014] EWCA Civ 906, the breach was serious and had resulted in the loss of the trial date. Relisting would have produced further significant delay, leaving the matter hanging over the parties.
Yip J drew particular attention to the conduct of the Claimant’s solicitor, which she described as “particularly egregious”. He had not been frank with the Defendant or the court, had delayed in making the application and in giving full disclosure while he attempted to obtain the necessary evidence to support the claim advanced; he had sought that evidence after the time for service had passed, and in response to the Defendant appropriately identifying the difficulties in maintaining the pleaded claim.
Yip J held that to allow the application for relief would not only fail to do justice between the parties but also serve to discourage the sensible, proactive and efficient approach to litigation exemplified on the Defendant’s side. Further it was not clear that the Claimant was significantly prejudiced by the refusal of relief given the weak position she would have found herself in anyway given the piecemeal development of her expert evidence so late in the course of the litigation. Relief from sanctions was therefore refused.
In relation to the Defendant’s strike out application, Yip J underlined that it was an abuse of process, per Pantelli, to put forward a claim not founded on appropriate expert evidence. The claim was not completely struck out, however, with Yip J having found that in respect of some of the allegations of breach, it was not a case where it could be said that there was no expert support.
Conclusion
These cases are a reminder of the importance of ensuring – from the point of view of the claimant – that the expert report actually supports the allegations pleaded in the Particulars of Claim, and that any issues are remedied early on. Where there has been a failure to serve any evidence (Bot), any supportive evidence (Quaatey) or any supportive evidence on time (Magee), claimants run the risk of being struck out.
In this regard, do not forget that the expert evidence must support the claim according to the relevant legal principles. This may include ensuring that the experts’ reports properly address the two-stage test for a breach of duty in a pure diagnosis case, as required in Brady v Southend University Hospital NHS Foundation Trust [2020] EWHC 158 (QB), see coverage by Thomas Beamont here.
When considering an application, defendants would do well to remember the emphasis on conduct in the above cases and the CPR commentary which states: “[i]n many circumstances such a strike-out [under CPR 3.4.2(c)] would seem unduly harsh unless the party concerned was warned (possibly in writing by another party) of the risk of their statement of case being struck out if they did not comply with the rule, practice direction or court order in question”. Therefore, from the perspective of the defendant, it is sensible for a strike-out application to point out any conduct by the claimant or their lawyers which is worthy of the court’s criticism.
But it is also important to think strategically about the timing of any application for strike-out. Unless a claimant has actually served the expert evidence that is relied on, there is a significant risk that the court will find that the application has been made prematurely. In Hewes v West Hertfordshire Hospitals NHS Trust [2018] EWHC 2715, Foskett J stated that “there will be few cases, in my view, where such an application could ordinarily be contemplated before the relevant experts’ reports have been exchanged” (para 45). However, strike-out may be granted if the claimant’s lawyers serve the liability expert evidence early and it does not properly support the pleaded allegations.
Finally, for a detailed discussion about how to help your expert stay out of trouble in clinical negligence cases, listen to Neil Sheldon QC in Episode 100 of Law Pod UK available here.
