Jarman v Brighton and Sussex University Hospitals NHS Trust [2020] EWHC 3238 (QB)

Cherian v Cambridge University Hospitals NHS Foundation Trust [2020] EWHC 3601 (QB)

Taleb (A Child Proceeding by His Litigation Friend M) v Imperial College Healthcare NHS Trust [2020] EWHC 1147 (QB)

When can an expert in one set of proceedings be used in another?

This issue came up before Lambert J in Jarman v Brighton and Sussex University Hospitals NHS Trust [2020] EWHC 3238 (QB). The Claimant, a primary school teacher suffered a lifting injury at work in February 2015. She went to her GP and then to a physio who was sufficiently concerned about her symptoms that on 3 March 2015 she was told to go to A and E. She duly did and was assessed by a junior doctor who said there was no evidence of a cauda equina lesion and that an MRI would be performed in the next few days. It was eventually performed on 18 March, two weeks later. It showed a huge central right sided disc protrusion. Urgent decompressive surgery was performed but unfortunately too late. The Claimant had been left with significant and disabling Cauda Equina Syndrome.

She issuedone set of proceedings against her employer, the Council, and then a separate set of proceedings against the Trust for culpable delay in undertaking decompression surgery. The Council itself then brought Part 20 proceedings against the Trust in respect of the alleged delay. The actions were not consolidated but Master Yoxall directed they be tried together. Under these directions there was a joint meeting of experts including the experts instructed by the Council in its Part 20 claim against the Trust. That joint statement contained some seemingly favourable opinions from the Council’s instructed experts. However, in September 2020 the claim against the Council was compromised and, unless she obtained permission to do so, the Claimant would not be entitled to rely on the evidence of the Council’s experts as they were experts in a separate set of proceedings. The experts were Mr Maurice-Williams (neurosurgeon) and Dr Cockerill (neurologist). The Claimant duly made the application and relied on an analogy with the position under CPR 35.11 (the rule which permits any party to use an expert’s report disclosed in the proceedings by another party as evidence at the trial) and the overriding objective. The application was resisted by the Defendant who considered allowing oral evidence from the additional experts would result in increased complexity and length to the trial. In her succinct and lucid judgment Lambert J explained that the applicable provision was CPR 35.1; that the overriding objective applied; and that expert evidence should be restricted to that which was reasonably required to resolve the proceedings. No one was suggesting the views of Mr Maurice-Williams and Dr Cockerill should be redacted from the joint statements. To do so might give a distorted impression of the joint statement as a whole. Thus both reports would be admitted. The real question was whether oral evidence of Dr Cockerill and Mr Maurice-Williams should be permitted. She answered that question in the affirmative saying that in the absence of oral evidence from the two experts the difficult job for the trial judge would be all the more difficult. Further, if the evidence of Dr Cockerill and Mr Maurice-Williams was in some respects inconsistent with the other experts to be called by the Claimant then this seemed to militate in favour rather than against their evidence being explored in cross examination rather than being dealt with by submissions only. In terms of additional cost and time, the financial cost was estimated at £22,000 and the extra trial time, one day. In the context of the amount of money involved in the claim, the importance of the case; the complexity of the issues and the financial position of the parties, it was proportionate to admit the evidence.

In the event (and perhaps as may have been anticipated by Lambert J if the evidence was tested under cross examination) calling the additional experts did not avail the Claimant. The experts were duly cross examined and the views of the Defendant’s experts preferred, see the final judgment before Jason Coppel QC sitting as a deputy [2021] EWHC 323 QB, who found against the Claimant on breach of duty and explained he would also have found against the Claimant on causation.

Is Reconstruction evidence: “opinion” or “factual” evidence?

This issue was considered in Cherian v Cambridge University Hospitals NHS Foundation Trust [2020] EWHC 3601 (QB) byRobin Knowles J [2020] EWHC 3601 on appeal from a decision of Recorder Gallagher. The Claimant was a nurse who suffered an injury at work when she tried to sit on one of a new stock of wheeled stools in the recovery unit at the Defendant hospital. As she tried to sit down on the stool, it rolled way from under her and she fell suffering a flexion compression injury to her back. The recorder had refused the Claimant permission to rely on the evidence of the Claimant’s husband and some videos he had taken of stools at the hospital. His reasons had a certain attractive simplicity about them:

The evidence sought to be put in, in my judgment is not proper evidence of fact. The witness was not there. He is seeking to give opinion evidence which he is not entitled to give of a reconstructive nature. That type of evidence has already been refused. It is clearly not expert evidence. …He is trying to say that the stool was essentially unsafe and it must be inherently unsafe. That is expert evidence in my judgment”.

Yet the Judge overturned the Recorder’s decision who had, it appears, not been referred to key authority, Blair-Ford v CRS Adventures Ltd [2012] EWHC 1886 (a case about a catastrophic injury in a wellie-wanging contest when expert engineering evidence about the forces deployed in wellie wanging generally was refused, but factual evidence was admitted from those experts so long as it was confined to the accounts of the experiments (presumably example wellie-wangs) which they carried out.

The judge summarised the effect of that authority to be that factual reconstructive evidence need not be evidence from an expert and can be admitted through a lay witness and overturned the decision of the Recorder but only to the extent that the evidence allowed was only that relevant to factual reconstruction and therefore some aspects of the videos and written evidence.

Comment: In some senses a surprising result. How much evidential value would the court in this (or any case) be likely to place on the husband’s (non-expert) accident reconstruction videos? Perhaps the right approach in reconstruction cases is to ask sequentially: is the evidence (or relevant part of the evidence e.g. a video) sought to be admitted evidence of fact or an opinion? If expert evidence, then permission is required for it under Part 35, if fact then its admissibility turns on relevance and probative value not the identity or qualifications of the maker.

When will a late application for a joint single expert be allowed?

This issue is considered by Stewart J in Taleb (A Child Proceeding by His Litigation Friend M) v Imperial College Healthcare NHS Trust [2020] EWHC 1147 (QB). This case concerned an application by the Defendant for a single joint expert in genetics in a brain injury case. The issue arose because in the course of a conference which took place after exchange of witness statements with the Defendant’s factual and expert witnesses it was suggested by the Defendant’s paediatric neurologist that the cause of the Claimants injuries could be genetic rather than iatrogenic. The Defendant therefore applied for a single joint geneticist to be instructed to investigate this issue. The Claimant resisted on grounds that the Defendant had already admitted, and not resiled from, its admission that the Claimant had suffered a chronic partial hypoxic ischaemic insult in utero, that the medical evidence available (and such genetic investigations as had been carried out on the child) had not identified any genetic abnormality; and that the application was both late, unnecessary and inappropriate and would jeopardise the trial date. The Court reviewed the relevant authorities and notably refused to follow the decision of Karen Steyn QC (now Steyn J) in SJ Moore Jeweller v Squibb Group Ltd [2018] EWHC to the effect that there was an implied sanction in CPR 35.4, and held that there was no express or implied sanction and that the applicable principles were either (a) the overriding objective or, if it was a “very late application”(b) whether there was a good reason for the late application; the significance of the new material; consideration of prejudice to each party; and the need to do justice to all the parties – see Heiser v The Islamic Republic of Iran and Anor [2019] EWHC 2073.

After analysing the chronology of the application and the time to trial, the Court concluded that if the application were granted it was inevitable the trial date would be lost and it was therefore a “very late application”. The Court then applied the Heiser principles to the facts, the Court and refused the application by reference to the relevant discretionary factors.

Matthew Barnes appeared for the Defendant in Taleb. He did not contribute to this article.