Gabriele Shaw (suing as the personal representative of the estates of William Ewan (Deceased)) v Medtronic Corevalve Llc (a Company incorporated in the USA) and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Lavender |
| Judgment Date | 19 May 2017 |
| Neutral Citation | [2017] EWHC 1397 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15C05279 |
| Date | 19 May 2017 |
[2017] EWHC 1397 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lavender
Case No: HQ15C05279
Mr David Berkley QC (instructed by Pearson Solicitors and Financial Advisers LLP) for the Claimant
Mr Toby Riley-Smith QC (instructed by CMS Cameron McKenna) for the Defendants
Hearing date: 19 May 2017
Judgment Approved
I gave judgment in this action on 20 January 2017. I will refer to that as the First Judgment. In this judgment I will not repeat what I said in the First Judgment. Any term which I defined in the First Judgment will be used in the same sense in this judgment.
The First Judgment dealt with applications made by the First, Third and Fourth Defendants. For the reasons set out in the First Judgment:
(1) I set aside both:
(a) Master McCloud's order of 2 June 2016 giving leave to serve the Claim Form out of the jurisdiction insofar as it related to the First and Third Defendants; and
(b) the service of the Claim Form on the First and Third Defendants out of the jurisdiction.
(2) I ordered that the Particulars of Claim was struck out insofar as it related to the Fourth Defendant.
I gave directions for the hearing of similar applications which had been made by the Second and Fifth Defendants, of the costs applications by the First, Third and Fourth Defendants and of a dispute as to the costs of the Claimant's application for disclosure.
Since then:
(1) the Claimant has discontinued her claim against the Fifth Defendant;
(2) the Claimant has applied for permission to re-amend the Claim Form and to amend the Particulars of Claim as against the Second Defendant, Jean Claude Laborde;
(3) the First, Third and Fifth Defendants have issued an application seeking orders intended to ensure that they can enforce any costs orders made in their favour notwithstanding the rules concerning qualified one-way costs shifting; and
(4) the parties have agreed that there should be no order as to the costs of the Claimant's application for disclosure.
So the applications which were argued before me were:
(1) the Second Defendant's application for either an order striking out the Particulars of Claim under CPR 3.4 or summary judgment against the Claimant under CPR 24.2;
(2) the Claimant's amendment application;
(3) the First, Third and Fourth Defendants' applications for their costs; and
(4) the application by the First, Third and Fifth Defendants for orders intended to allow them to enforce the costs orders in their favour.
I begin with the Second Defendant's strike out application. For the reasons given in paragraphs 23 to 36 of the First Judgment, I set aside service of the Claim Form on the First Defendant because the Claimant's claim has been satisfied by reason of the judgment obtained in the First Action. What I said there applies with equal force to the Particulars of Claim as currently pleaded as against the Second Defendant, save only insofar as I referred in paragraphs 34 and 35 to the Claimant's application for permission to serve the Claim Form on the First Defendant out of the jurisdiction. There was no such application in relation to the Second Defendant.
Indeed, the position is stronger in relation to the Second Defendant because (as I will explain) the Particulars of Claim does not plead a cause of action against the Second Defendant. It follows that the Second Defendant's application must be allowed if I dismiss the Claimant's amendment application, to which I now turn.
By that application, the Claimant seeks permission: (1) to re-amend the Claim Form so as to add a claim for damages for "battery (in damages/or in restitution)"; and (2) to amend the Particulars of Claim in a number of respects. The proposed amendments are not limited in their effect to the Second Defendant. I would not, in any event, be prepared to grant permission for amendments which purported to apply to the claims against the other Defendants. The Claimant has sought permission to appeal against my decision of 20 January 2017, so there is at least the possibility that the Court of Appeal may allow her claims against one or more of the First, Third or Fourth Defendants to proceed. It would not be right to permit the amendment of those claims at this stage.
It is worth looking at the original Particulars of Claim before turning to the proposed amendments. There is little mention of the Second Defendant in the Particulars of Claim. Most of the Particulars of Claim concern either CoreValve, i.e. the First Defendant, or Medtronic, i.e. the First, Third, Fourth and Fifth Defendants. The Second Defendant is only expressly referred to once in the Particulars of Claim, in paragraph 6, which states as follows:
"The Second Defendant was the proctor on behalf of CoreValve who was the lead operator responsible for the procedure under which the Deceased received the Valve."
However, the Second Defendant is not named in: paragraph 42, where it is alleged that CoreValve and Medtronic were in breach of the Consumer Protection Act 1987; paragraph 43, where it is alleged that CoreValve was negligent; paragraphs 53 to 55, where it is alleged that CoreValve and Medtronic were unjustly enriched; or paragraph 58, where it is alleged that CoreValve and Medtronic acted in such a way as to entitle the Claimant to aggravated and/or exemplary damages.
In short, therefore, the existing Particulars of Claim does not identify any cause of action against the Second Defendant. I turn now to the proposed amendments.
First, it is proposed to insert in paragraph 4 a sentence which says some more about who the Second Defendant is, as follows:
"The Second Defendant is an interventional cardiologist who, at all material times, was based in Toulouse, France and worked as Director of the Clinique Pasteur and who had assisted Jacques Seguin and thereafter CoreValve in the development of the Valve and acted as proctor on behalf of CoreValve."
Secondly, it is proposed to add in paragraph 4 the following sentence:
"The Second Defendant is sued as agent for CoreValve and Medtronic."
If the Second Defendant is sued as agent for the other Defendants, then: (a) it is difficult to see how there can be any cause of action against him personally; and (b) it is also difficult to see how any claim against him could survive the dismissal of the claims against his alleged principals.
Thirdly, it is proposed to amend paragraph 6 of the Particulars of Claim so as to allege that the First Defendant was not merely the lead operator, but the lead and primary operator.
Fourthly, it is proposed to amend paragraph 10 so as to allege that the late Mr Ewan was given certain advice by Dr Kovac. It will be recalled that the Claimant has already sued Dr Kovac and her claim against him has been satisfied.
Fifthly, it is proposed to amend paragraphs 11 and 13 to expand the pleaded case on the issue as to which Valve was used in the operation. These proposed amendments do not refer expressly to the Second Defendant.
Sixthly, it is proposed to amend paragraph 16 to allege that the Second Defendant was the proctor for the trials and investigations being carried out by Dr. Kovac and his team.
Seventhly, it is proposed to make various amendments to paragraphs 16, 23, 25, 26, 32, 46 and 50. These amendments make no reference to the Second Defendant, but appear to be intended to support the case as to the Second Defendant's state of knowledge.
Eighthly, it is proposed to amend paragraph 42 so as to state as follows:
"CoreValve failed to comply with the Directive and the Regulations and announced in May 2007, within weeks of regulatory approval for the 5 years clinical investigation, that its devices had been CE Marked and which they intended to be relied on and put into circulation devices which they, together with the Second Defendant, knew were unsafe and untested and which thereafter caused the death of the Deceased."
Ninthly, it is proposed to amend paragraphs 43 and 45 to allege that the First Defendant acted with knowing dishonesty, as follows:
"43. Further or in the alternative, CoreValve was [" negligent" is deleted] knowingly dishonest in:-
(1) representing and supplying the valve as CE Marked when the same was dangerous per se, and its safety and performance not having been established, and/or likely to cause injury;
(2) failing to disclose to the deceased the known dangers of injury to him from the insertion of the valve;
(3) failing to warn the Deceased of the risks associated with the insertion of the Valve;
(4) failing to warn the Deceased that the valve was in its experimental stage in being used upon him."
"45. In the event, on 27 April 2007 a Declaration of Conformity for the 2 valves was signed notwithstanding that CoreValve knew one of which was not ever approved for clinical investigation and that the clinical investigation of its devices was in its infancy and proceeded to launch the devices on the market."
Tenthly, it is proposed to insert a reference to the Second Defendant into paragraph 51, so that it reads:
"Responsibility for the acceptance of a patient lay also with CoreValve and the Second Defendant: the documents evidence that they had all patient imaging and medical records, including for the Deceased sent to them for approval of rejection."
Eleventhly, it is proposed to insert the following allegation at the end of paragraph 52:
"In the premises, the Claimant contends that the...
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Excalibur & Keswick Groundworks Ltd v Michael McDonald
...more, would not justify setting aside a Notice of Discontinuance.” 13 The Judge considered the authorities of Shaw v Medtronic & Others [2017] EWHC 1397 and Mabb v English [2018] 1 Costs LR 1, decisions respectively of Lavender J and May J. The Judge at [32] recognised that in Shaw the prin......
- Gabriele Shaw (suing as the personal representative of the estate of William Ewan (Deceased)) v Medtronic Corevalve LLC (a company incorporated in the USA) and Others