Naylor v Preston Area Health Authority

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE GLIDEWELL,SIR FREDERICK LAWTON
Judgment Date08 April 1987
Judgment citation (vLex)[1987] EWCA Civ J0408-1
Docket Number87/0298
CourtCourt of Appeal (Civil Division)
Date08 April 1987
David Stuart Naylor(administrator of the Estate of Wendy Naylor Deceased)
(Plaintiff) Appellant
and
Preston Area Health Authority
(Defendant) Respondent
Lilian Christina May Foster (married Woman)
(Plaintiff) Appellant
and
Merton And Sutton Health Authority
(Defendant) Respondent
Julia Elizabeth Thomas (female) (by her next Friend the Official Solicitor)
(Plaintiff) Appellant
and
North West Surrey Health Authority
(Defendant) Respondent
1. Claudius Ikumelo (administrator of the Estate of Female Baby Ikumelo Deceased)
2. Oladunni Ikumelo (married Woman By Her Husband and Next Friend Claudius Ikumelo)
(Plaintiffs) Appellants
and
Newham Health Authority
(Defendant) Respondent

[1987] EWCA Civ J0408-1

Before:

The Master of the Rolls (Sir John Donaldson)

Lord Justice Glidewell and

Sir Frederick Lawton (not Present)

87/0298

1985 N. No.659

1985 F. 1371

1984 T.No. 157

1986 I. No. 2219

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice.

On Appeal From the High Court of Justice

Queen's Bench Division

Preston District Registry

(Mr. Justice Sheldon)

On Appeal From The High Court Of Justice

Queen's Bench Division

(Mr. Justice Tudor Evans)

On Appeal From The High Court Of Justice

Queen's Bench Division

(Mr. Justice Tudor Evans)

MR. C. LIMB (instructed by Messrs. J.S. Siezants & Co. of Chorley) appeared on behalf of the Appellant (Naylor).

MR. DAVID LATHAM, Q.C. and MR. K. ARMITAGE (instructed by E.G. Jones, Esq.) appeared on behalf of the Respondent (Preston Area Health Authority).

MR. PETER LATHAM (instructed by Messrs. Fisher Meredith & Partners) appeared on behalf of the Appellant (Foster).

MR. DAVID LATHAM, Q.C. and MR. R. FRANCIS (instructed by Messrs. Capstick Hamer & Co.) appeared on behalf of the Respondent (Merton & Sutton Health Authority).

MR. ANTHONY MACHIN, Q.C. and MR. M. POWERS (instructed by Messrs. Compton Carr) appeared on behalf of the Appellant (Thomas).

MR. DAVID LATHAM, Q.C. and MR. R. FRANCIS (instructed by Messrs. Beachcrofts) appeared on behalf of the Respondent (North West Surrey Health Authority).

MR. ANTHONY MACHIN, Q.C. and MR. R. FRANCIS (instructed by Messrs. Compton Carr) appeared on behalf of the Appellants (Ikumelo).

MR. P. HAVERS (instructed by Messrs. Beachcrofts) appeared on behalf of the Respondent (Newham Health Authority).

THE MASTER OF THE ROLLS
1

These four interlocutory appeals all arise in the context of actions claiming damages for medical negligence. The principal issue in each is whether the learned judge (Mr. Justice Sheldon in the case of Naylor and Mr. Justice Tudor Evans in the other cases) was right in refusing to order advance mutual disclosure under R.S.C. Order 38 rule 38 of the substance of any expert evidence which is to be adduced at the trial. In the cases of Naylor and Foster there are subsidiary issues concerning the advance mutual disclosure of medical and scientific literature upon which the expert witnesses intend to rely. An order was refused in the case of Naylor and was limited to published material in the case of Foster. Both these appellants seek orders relating to both published and unpublished material, but now concede that such an order should not extend to individual case notes or histories, since this might breach the right to confidentiality of third parties. Finally, the appellant in Foster appeals against the refusal by Mr. Justice Tudor Evans to order the defendants to plead any affirmative case upon which they intended to rely at the trial, under sanction of being debarred from doing so.

2

The appeals are said to be of general importance, since all or most of these issues arise in every medical negligence action. In addition there is the further complication that the Lord Chancellor's Department has invited comments upon a proposal to amend the relevant parts of Order 38, such comments to be submitted on or before the 31st March, 1987. The proposal, if accepted, might make it easier for the plaintiffs to obtain the orders which they seek and the fact that they have so far failed on the basis of the existing rules would be no bar to further applications under any amended rules. Inquiries revealed that the present intention was that the Rule Committee should reach a decision by early May 1987. In these circumstances, we enquired whether there was any point in pursuing these appeals, but all concerned wished to do so. The reasons do not matter, since the parties, having obtained leave to appeal from the courts below, are entitled to decisions on their appeals. However, it would appear that the plaintiffs hope to avoid the need for a further application and the defendants hope that our judgments may lead the Rule Committee to reject the proposed amendments or at least to modify them.

3

Order 38 rule 36 (1) provides that, except with the leave of the court or where all parties agree, no expert evidence may be adduced at the trial or hearing of any cause or matter, unless the party seeking to adduce the evidence has complied with automatic directions under Order 25 rule 8 (1) (which at present has no application to medical negligence cases) or has applied to the court to determine whether a direction should be given pursuant to rule 37, 38 or 41 (whichever is appropriate) and has complied with any directions given on the application. Rule 37 has no application in medical negligence cases and rule 41, which relates to the admission of expert evidence in the form of a statement when the maker is not to be called as a witness, has no materiality in these appeals. This leaves only rule 38 as being directly applicable, but, in order to see the scheme of the rules, it is necessary to look at both rules 37 and 38:

"37(1) This rule applies to any action for personal injuries, except—

  • (a) any Admiralty action; and

  • (b) any action where the pleadings contain an allegation of a negligent act or omission in the course of medical treatment.

(2) Where an application is made under rule 36 (1) in respect of oral expert evidence, then, unless the Court considers that there is sufficient reason for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify.

(3) Where the expert evidence relates to medical matters the Court may, if it thinks fit, treat the following circumstances as sufficient reason for not giving a direction under paragraph (2) namely that the expert evidence may contain an expression of opinion—

  • (i) as to the manner in which the personal injuries were sustained; or

  • (ii) as to the genuineness of the symptoms of which complaint is made.

(4) Where the expert evidence does not relate to medical matters, the Court may, if it thinks fit, treat as a sufficient reason for not giving a direction under paragraph (2) any. of the circumstances set out in subparagraphs (a) or (b) of rule 38(2).

38(1) Where an application is made under rule 36(1) in respect of oral expert evidence to which rule 37 does not apply, the Court may, if satisfied that it is desirable to do so, direct that the substance of any expert evidence which is to be adduced by any party be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify.

(2) In deciding whether to give a direction under paragraph (1) the Court shall have regard to all the circumstances and may, to such extent as it thinks fit, treat any of the following circumstances as affording a sufficient reason for not giving such a direction:—

  • (a) that the expert evidence is or will be based to any material extent upon a version of the facts in dispute between the parties; or

  • (b) that the expert evidence is or will be based to any material extent upon facts which are neither—

    • (i) ascertainable by the expert by the exercise of his own powers or observation, nor

    • (ii) within his general professional knowledge and experience.

(3) In any cause or matter the Court may, if it thinks fit, direct that there be a meeting 'without prejudice' of such experts within such periods before or after the disclosure of their reports as the Court may specify, for the purpose of identifying those parts of their evidence which are in issue. Where such a meeting takes place the experts may prepare a joint statement indicating those parts of their evidence on which they are, and those on which they are not, in agreement."

4

Manifestly rule 38 confers a wide discretion upon the court. However, both learned judges regarded the decision of this court in Rahman v. Kirklees Area Health Authority [1980] 1 W.L.R. 1244 as establishing guidelines on the exercise of that discretion which, in the words of Mr. Justice Tudor Evans were "as close to being binding on me as they could be, short of being an actually binding decision", notwithstanding that it was concerned with an earlier [1974] version of rules 37 and 38. In that version rule 38 was in the same terms as in the present rule, but rule 37 read:

"(1) Where in an action for personal injuries, an application is made under rule 36(1) in respect of oral expert evidence relating to medical matters, then, unless the Court considers that there is sufficient reason for not doing so, it shall direct that the substance of the evidence be disclosed in the form of a written report or reports to such other parties and within such period as the Court may specify.

(2) The Court may, if it thinks fit, treat any of the following circumstances as a sufficient reason for not giving a direction under paragraph (1):—

  • (a) that the pleadings contain an allegation of a negligent act or omission in the course of medical...

To continue reading

Request your trial
30 cases
  • Clough v Tameside & Glossop Health Authority
    • United Kingdom
    • Queen's Bench Division
    • Invalid date
    ...Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68. Naylor v Preston Area Health Authority [1987] 2 All ER 353, [1987] 1 WLR 958, Waugh v British Railways Board [1980] AC 521, [1979] 2 All ER 1169, [1979] 3 WLR 150, HL. Youell v Bland Welch & Co Ltd (No......
  • Dea Ai Eng v Dr Wong Seak Shoon
    • Malaysia
    • High Court (Malaysia)
    • 1 January 2007
  • KR and Others v Bryn Alyn Community (Holdings) Ltd ((in Liquidation)) and another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 February 2003
    ... ... South Manchester Health Authority [1995] 1 W.L.R. 1543 , at 1522B-G ... 27 ... ...
  • Walkin v South Manchester Health Authority
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 27 July 1995
    ...of the attempt to sterilise Mrs. Walkin was not itself a personal injury. It did her no harm; it left her as before. Cf Naylor -v- Preston Area Health Authority (1987) 2 All ER 353—a vasectomy case—, per Sir John Donaldson MR at 363. However, it seems to me that the unwanted conception, wh......
  • Request a trial to view additional results
4 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Civil Litigation
    • 16 June 2010
    ...CarswellOnt 8283, [2006] O.J. No. 5125 (S.C.J.) ........................................ 250 Naylor v. Preston Area Health Authority, [1987] 1 W.L.R. 958 (C.A.) .............. 169 Nelson Burns & Co. v. Gratham Industries Ltd. (1987), 25 O.A.C. 89, 23 C.P.C. (2d) 279, [1987] O.J. No. 1100 (C......
  • Betrayal of Trust in Medical Manslaughter
    • United Kingdom
    • Journal of Criminal Law, The No. 83-6, December 2019
    • 1 December 2019
    ...Bottomley (ed), Feminist Perspectives on the Foundational Subjects ofLaw (Routledge Cavendish, London 1996) 82.32. Naylor v Preston AHA [1987] 1WLR 958.33. See Lord Millett, ‘Equity’s Place in the Law of Commerce’ (1998) 114 LQR 214–22.34. S Ost, ‘Breaching the Sexual Boundaries in the Doct......
  • The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: A Litany of Fundamental Flaws?
    • United Kingdom
    • The Modern Law Review No. 80-2, March 2017
    • 1 March 2017
    ...Public Inquiry Volume 3at http://www.midstaffspublicinquiry.com/report, [22.159] 1490.51 ibid.52 [1985] 2 All ER 385, 389 (CA).53 [1987] 2 All ER 353, 360.54 See Powell vBoldadz [1998] Lloyds Rep Med 116.304 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.(2017......
  • Discovery
    • Canada
    • Irwin Books Civil Litigation
    • 16 June 2010
    ...or to inspect property. Each of these forms of discovery will now be considered. 5 Naylor v. Preston Area Health Authority , [1987] 1 W.L.R. 958 (C.A.). Ci vil litigation 17 0 C. dIsCovERy oF doCumEnTs Every party in an action has a right to gain access to the documents that are relevant to......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT