Gail Marie Duce (Claimant/Appellant) v Worcestershire Acute Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Black,Lord Justice Fulford |
| Judgment Date | 12 March 2014 |
| Neutral Citation | [2014] EWCA Civ 249 |
| Docket Number | Case No: B3/2013/0038 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2014 |
[2014] EWCA Civ 249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WORCESTER COUNTY COURT
His Honour Judge Pearce-Higgins QC
Claim No: 11Q15454
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lady Justice Black
and
Lord Justice Fulford
Case No: B3/2013/0038
Benjamin Browne QC (instructed by Prescotts Solicitors) for the Appellant
Philip Havers QC and Richard Mumford (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing date : 12 February 2014
The appellant, Mrs Duce, is the claimant in proceedings against the respondent, Worcestershire Acute Hospitals NHS Trust. I will refer to the parties respectively as "the claimant" and "the defendant". In March 2008 the claimant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy at Worcester Royal Hospital. Her case is that she suffered neuropathic post-operative pain as a result of the surgery and she claims damages for negligence in failing to warn her of the risk of developing such pain.
The procedural history reveals a muddle. The claim was struck out by District Judge MacKenzie as having no real prospect of success, in circumstances where that issue should not have been before the court at all. Thereafter the question whether there was a real prospect of success became the focus of attention on an application to reinstate the claim. The application was dismissed by District Judge Khan. An appeal, with a linked application to amend the particulars of claim, was dismissed by His Honour Judge Pearce-Higgins QC. A second appeal is now brought to this court against the judge's order, on limited grounds for which permission was granted by Gloster LJ.
The procedural history
The claim form was issued on 21 March 2011. It was served with the particulars of claim on 18 July 2011. The particulars of claim set out details of the pain allegedly suffered by the claimant as a result of the surgery, together with her understanding that it constituted neuropathic chronic post-surgical pain ("CPSP"). There was alleged to have been a negligent failure to warn the claimant prior to surgery of the risk of CPSP, and it was alleged that she would not have consented to the surgery if she had been properly informed of that risk.
Paragraph 4.3 of Practice Direction 16 supplementing the Civil Procedure Rules ("CPR PD 16") provides:
"Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim."
It is common ground that the medical practitioner's report so required is a "condition and prognosis" report about the alleged injuries, not the expert medical evidence relied on in support of allegations of breach of duty and causation.
The required report of a medical practitioner was not attached to or served with the particulars of claim. On 11 October 2011 the defendant applied for an order that the claimant serve a report within 7 days or be debarred from relying on such evidence. The terms of the application make clear that what was sought was a condition and prognosis report.
On 13 December 2011 DJ MacKenzie made an order that included the following:
"5. On the Defendant's application dated 11.10.11 it is ordered that the claimant must file and serve the medical evidence on which she proposes to rely within 14 days of service of this order. Unless she does so she will be debarred from relying on such evidence in the absence of any further order of this court.
6. In the absence of any such medical evidence it is difficult to see how the claim can succeed and if no such evidence is filed the court may consider striking out the claim on request."
One sees in that order the beginnings of the subsequent muddle. On its face, paragraph 5 of the order was not limited to service of a condition and prognosis report as required by CPR PD 16 paragraph 4.3 but appeared to direct the claimant to serve all the medical evidence on which she proposed to rely, including evidence relating to breach of duty and causation. Whilst the former would have been an entirely appropriate order, there was no justification for the latter. Further, paragraph 6 of the order blurred the distinction, considered below, between the conditions for a strike-out and the conditions for summary judgment. It may also be noted that it envisaged action "on request" rather than on the court's own initiative.
On 21 December 2011 the claimant sent to the court a report by Dr Charles A Gauci, a consultant in chronic pain management, going to the issue of breach of duty. Dr Gauci had not at that stage seen the claimant herself but he considered the general risk of developing CPSP and the specific risk factors present in the claimant's case, based on her clinical notes. He expressed the opinion that all patients, especially those who display the claimant's risk factors, should be advised about the risk of developing CPSP. There were three main problems about his report: (1) it was not a condition and prognosis report and did not therefore cure the failure to comply with CPR PD 16 paragraph 4.3; (2) it did not include the expert's declarations required by CPR PD 35 paragraphs 3.2 and 3.3; and (3) Dr Gauci was a pain specialist whereas, as was subsequently identified, expert evidence on the question whether there was a duty to warn should have come more appropriately from a gynaecologist.
To add to the problems, owing to an administrative error Dr Gauci's report did not get through to DJ MacKenzie by the time when he made a further order, on 6 January 2012, in the following terms:
"(1) Subsequent to the order of 13 th December 2011 it is noted that there is still no medical evidence and the claimant's AQ [allocation questionnaire] simply says they will want expert evidence but gives no indication as to who has or will be used. Under those circumstances and bearing in mind the nature of the claim THIS CLAIM IS STRUCK OUT as having no real prospect of success.
…
(3) Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed …."
Contrary to the indication given in the order of 13 December 2011, that strike-out order was made on the court's own initiative, not at the request of the defendant.
On receipt of the order the claimant drew attention to the fact that Dr Gauci's report had been sent to the court, and a further copy was provided. This resulted in the District Judge reconsidering his order of 6 January but with the same result. His order of 17 January 2012 provided:
"The order dated 6 January 2012 striking out these proceedings shall stand for the following reasons:
1. Although there is now a medical report it is not CPR compliant.
2. There remains no real prospect of success."
CPR 3.4 (2) provides that the court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing the claim, (b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the court proceedings, or (c) that there has been a failure to comply with a rule, practice direction or court order. The power to strike out under that provision is to be distinguished from the power under CPR 24.2 to give summary judgment against a claimant if the court considers that the claimant has no real prospect of succeeding on the claim. In striking out the claim and confirming the strike-out, the District Judge appears to have confused the two provisions. Despite the reference to the medical report not being CPR compliant, the ground of the strike-out was not that the claimant had failed to comply with a rule, practice direction or court order but that the claim had no real prospect of success, which is the test under CPR 24.2 not under CPR 3.4(2). If the District Judge took the view that the claim could not succeed without the medical evidence which the claimant was now debarred from relying on, he was wrong to proceed on that basis in circumstances where the only medical evidence that the claimant was or should have been required to produce at that stage was the condition and prognosis report required by CPR PD 16.
None of this, however, was raised on behalf of the claimant when an application was made on 19 January 2012 to reinstate the claim. The application to reinstate (which appears to have been an application pursuant to CPR 3.3(5) to set aside the District Judge's orders on the basis that they had been made without hearing representations from the claimant) was supported by a witness statement of the claimant's solicitor, Mr Richard Prescott. He set out the steps he had taken to try to obtain expert evidence, from which it was apparent that the first supportive report received had been that of Dr Gauci in December 2011, many months after service of the claim form and the particulars of claim. Mr Prescott apologised for the non-compliance of Dr Gauci's report with CPR PD 35 and said that steps were being taken to remedy that error: Dr Gauci's report was in fact re-served on 13 February 2012 in a form compliant with CPR PD 35 (though, as already stated, it went to the issue of breach of duty and was not a condition and prognosis report of the kind required by CPR PD 16 paragraph...
To continue reading
Request your trial