The limits of discretion in case management decisions
Prescott-Brann v Chelsea and Westminster Hospital NHS Foundation Trust [2024] EWHC 3314 (KB)
Background
The underlying claim was an action in clinical negligence. The Claimant’s case was that a negligent delay in the diagnosis and treatment of his stroke had caused or materially contributed to an ongoing thromboembolic event in his left vertebral artery, thereby worsening a neurological injury. The claim was brought against two defendants: the hospital trust and a diagnostic clinician.
The Claimant’s core case was that if his stroke had been diagnosed appropriately after he presented to hospital, he would have received Aspirin and remained in hospital, preventing a second thromboembolism. The Defendants denied that there was a further thromboembolism at all. Expert evidence in neurology and neuroradiology was permitted to be called.
The case management decision in issue was the Claimant’s application to rely on an alternative neurology expert. On 25 May 2023, Master Eastman rejected that application.
The law
In considering an appeal against a case management decision, the court must question whether the judge’s decision was “wrong” (see Walbrook Trustee (Jersey) Ltd v Fattal and Royal & Sun Alliance v T & N [2009] EWCA Civ 297). This means “plainly wrong in the sense of being outside the generous ambit where reasonable decision makers may disagree” as per Lewison LJ in Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743 at [51].
The court reminded itself of CPR 35.4, which sets out that “[n]o party may call an expert or put in evidence an expert’s report without the court’s permission.”
The usual rule is that parties should not be refused permission to rely on a new expert in substitution for an existing one: Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136 per Hughes LJ at [30]; Murray v Devenish [2017] EWCA Civ 1016 per Gross LJ at [15]-[16]. Generally, as a matter of discretion it is permitted if the first expert’s report is disclosed. That discretion should be exercised on consideration of the all the relevant circumstances, including (a) if the change may disrupt the proceedings; (b) whether the application is made only to procure a more favourable opinion (“expert shopping”); (c) if it would unfairly disadvantage another party and; (d) if the change would be contrary to the overriding objective [8].
Procedural history
The claim form was served on 16 July 2018. After an agreed stay, the Particulars of Claim were served on 6 February 2020. In a Case Management Conference on 1 February 2021, the Claimant sought and was granted permission to change neuroradiology expert from Dr Nelson to Dr Birchall. Dr Nelson’s unsupportive reports were disclosed as a condition of permission. The trial was initially scheduled for 21 November 2022 but the Claimant successfully applied to vacate it on 19 August 2022. The Claimant applied for permission to rely on a stroke expert’s evidence, but this was refused at a hearing before Master Eastman on 10 February 2023. Permission was then sought to replace his existing neurology expert, Professor Wills, with a new expert: Dr Chandratheva.
On 25 May 2023 Master Eastman refused permission to change experts for five reasons: (1) the application was made late; (2) Professor Wills had maintained his view throughout the proceedings; (3) it might amount to expert shopping; (4) Dr Chandratheva’s report would not greatly assist the Claimant; and (5) Dr Chandratheva had been provided with partial and inappropriate documents.
In response the Claimant appealed on the basis that: (1) it was wrong to find that Professor Wills had been consistently unsupportive; (2) it was an error of law to not account for Professor Wills’ failure to consider Dr Birchall’s expert evidence; (3) it was wrong to decide that Dr Chandratheva’s opinion was unsupportive; (4) it was wrong to decide Dr Chandratheva’s report would not assist the case; and (5) it was wrong to fail to take account of the fact that Dr Chandratheva had considered the opinion of Dr Birchall.
The High Court’s assessment
The court found that Professor Wills’ views were not consistent throughout his three reports. His first report was prepared without a full statement from the Claimant and without examining him. It was subject to a caveat dependent on future factual findings. His initial view was not maintained throughout [31].
It was unchallenged evidence that Professor Wills was not prepared to engage with the report of the Claimant’s replacement neuroradiology expert, Dr Birchall. Where a party has lost confidence in its expert, it is rarely productive to engage in satellite litigation drawing in those experts [32]. Considering all the circumstances, the Claimant had demonstrated a good reason to change experts and was not expert shopping [34]. The court made it clear that it did not express any view on the performance of Professor Wills as an expert witness [32].
Dr Chandratheva’s report did support the Claimant’s case. Master Eastman had misattributed an observation from Dr Birchall’s report to Dr Chandravetha. He had mischaracterised the effect of Dr Chandravetha’s evidence [33].
The application was not so late to prejudice the Defendants. Dr Chandravetha had reached his own conclusion on the evidence [34].
Accordingly, it was proper for the Claimant to be granted permission to rely on the expert evidence of Dr Chandratheva in substitution for Professor Wills [35].
Key takeaway
The broad discretion given to the exercise of case management powers is not infinite. Where a decision is taken on a demonstrably wrong basis the appellate courts will reverse it.
