Simone Magee v Joy Angela Willmott
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 29 May 2020 |
| Neutral Citation | [2020] EWHC 1378 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: M20Q213 |
| Date | 29 May 2020 |
[2020] EWHC 1378 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY (sitting at Liverpool)
Mrs Justice Yip
Case No: M20Q213
Mr Michael Smith (instructed by Browne Jacobson LLP) for the Appellant
Ms Helen Rutherford (instructed by Linder Myers Solicitors) for the Respondent
Hearing dates: 1 May 2020
Approved Judgment
This is an appeal from a decision of Mr Recorder Riza QC handed down in the County Court at Reading on 29 November 2019. The Recorder granted the Respondent (the claimant in the action) relief from sanctions, permitting her to rely on expert evidence obtained after the date for exchange of such evidence, in circumstances where this had caused the trial date to be lost. The Recorder also refused a cross-application by the Appellant (the second defendant in the action) to strike the claim out. The Appellant contends that the Recorder erred in his approach to the application under CPR 3.9 and that relief should not have been granted. The Appellant further contends that the Recorder was wrong not to strike the claim out.
I am grateful to both Counsel for their extremely well focused and sensible submissions, both in writing and orally. I also commend the very efficient way in which they both conducted the remote hearing.
Venue for the appeal
The appeal was issued in Manchester for the convenience of Counsel. The court accepted jurisdiction and permission was granted by Turner J. I note that CPR PD52B sets out the appeal centre in which an appeal from the County Court must be brought. This appeal should have been brought in Oxford. As it happens, the appeal proceeded remotely given the current circumstances and it perhaps made little practical difference. However, the rules allocate work to appeal centres in a way that provides a sensible distribution of the workload and assists the administration of appeals. For the future, it should be noted that is not open to parties to elect to issue in a different appeal centre. Doing so, runs the risk that the appeal will not be accepted.
Background to the applications and the evidence before the court
The claim out of which this appeal arises is a claim for clinical negligence, relating to an alleged delay in diagnosing bowel cancer, originally pursued against two general practitioners and a hospital trust. The Appellant, one of the two GPs, was the second defendant. The claim against her partner, the first defendant, had been discontinued. The claim against the Appellant related to two consultations in August 2012 and one in April 2013. Proceedings were issued in April 2016. Liability was, and remains, firmly denied. In November 2018, directions had been given leading to a trial of liability and causation in a window between July and September 2019. Those directions provided for the exchange of expert evidence and for joint meetings between the parties' respective experts.
On 18 June 2019, the Respondent, discontinued her claim against the third defendant by serving a notice of discontinuance. This was subject to an application to set aside and to have the claim struck out instead, which was dealt with at the same time as the applications with which this appeal is concerned. The application was refused but with a wasted costs order against the claimant's solicitors. That forms no part of this appeal and I need say no more about it. The proceedings having been discontinued against both the first and third defendants, the claim was then proceeding against the Appellant alone.
After more than one extension to the court timetable, expert evidence was exchanged on 15 July 2019. Joint statements were due by 2 August 2019 and meetings had been diarised before the reports were exchanged. The trial was listed to begin on 16 September 2019.
Upon reviewing the Respondent's expert evidence, the Appellant's solicitor, Ms Jackson, noted that it did not appear to support many of the pleaded allegations of breach of duty and that no oncology causation evidence had been served. The Respondent concedes that her claim against the Appellant would fail if she is only able to rely on the expert evidence served on 15 July 2019.
Ms Jackson communicated her view that the evidence served did not support the pleaded case to the Respondent's solicitor, Mr Anwar, by telephone on 25 July 2019. She followed this with a letter dated 29 July 2019, in which she set out a detailed analysis of the gaps in the evidence, cross-referring to the pleadings. She concluded that it was evident that the claim could not succeed and suggested that it was inappropriate that it had been maintained for over three years without supportive expert evidence. Ms Jackson invited the Respondent to discontinue the claim, intimating that otherwise an application to strike out and for wasted costs would be made.
On 30 July 2019, Ms Jackson contacted Mr Anwar by telephone enquiring about Respondent's response to the letter emailed the previous day. She was concerned about the urgent need for the expert meetings to take place if the claim was to go to trial. Mr Anwar told her that he had made an error with the expert reports and that not all the evidence in the Respondent's possession had been served. He said that the additional evidence was not in a form that was suitable for service. The intention was to finalise the evidence for service, for it to be reviewed in conference with Counsel later in the week and for agendas for the expert meetings to be considered thereafter. The solicitors agreed that the booked experts' meetings could not go ahead given the Respondent's position.
The matter was listed for a pre-trial review on 8 August 2019. On 6 August 2019, the Respondent issued an application seeking permission to rely on further expert evidence and for an extension of time for the experts' joint meetings to take place. The Respondent sought to introduce three new reports from 1) Dr Hard, General Practitioner, dated 3 August 2019 2) Dr Smallwood, consultant surgeon dated 2 August 2019 and 3) from Professor Stebbing, Professor of Cancer & Oncologist dated 1 August 2019.
The application was expressed as an application for permission to rely on updated medical evidence. It was supported by a statement from Mr Anwar dated 6 August 2019. He said that he took over conduct of the matter in March 2019 and noted that the experts had been asked to finalise and “amalgamate” their evidence ready for disclosure towards the end of 2018, following a conference with Counsel. He said that he believed that had been done and asked all the experts for their finalised medical evidence. He believed that Dr Hard and Professor Stebbing had sent final reports which amalgamated their original reports and later supplementary evidence. Mr Anwar said he did not check them properly before service. He said that after discussing the expert evidence with Ms Jackson, he realised that “the reports served were clearly not intended to have been disclosed in the format they were in.” He asked the experts to rectify the matter, that is “to urgently update their final reports amalgamating and incorporating their previous supplementary reports and letters into one final version, which should have been done previously as per our instructions.”
Mr Anwar continued his statement by confirming that the finalised reports were “based only on material which was available to them previously plus the Second Defendant's letter of 29.07.19 which pointed out the outstanding evidence” and said that he asked the experts to amalgamate all their previous evidence into one final report ready for disclosure.
He blamed the error on the number of alterations that had been made to the court timetable coupled with the file having been handled by several different fee earners. He asserted that the expert evidence and opinion had not materially changed, rather it had only been “completed and made ready for trial”.
The Appellant had limited time to consider and respond to the application. On the day of the pre-trial review, the Appellant made a formal application to strike out the claim under CPR 3.4, supported by a detailed statement from Ms Jackson. Ms Jackson provided an accurate chronology and a careful analysis of Mr Anwar's statement. She noted that he had not disclosed the supplementary reports which were said to have been amalgamated into the reports served two days earlier. In an appropriate and responsible way, she raised concerns about the explanation provided by Mr Anwar, pointing out that it was hard to see how he could have mistakenly believed that the reports he served were ‘amalgamated’ reports. Ms Jackson noted that there was no explanation as to how and when the experts had changed their opinions, as they appeared to have done.
It was unrealistic to think that a contested application to admit further expert evidence could be dealt with within the 30 minutes allowed for the pre-trial review. The Appellant invited the court to list both applications together before the end of August. Alternatively, if that was not possible, the Appellant suggested that the applications could be determined on the first day of trial, still leaving sufficient time to conclude the trial within its estimate, given the narrowing of the issues and the discontinuance of the claim against two of the three defendants since it had been listed. The Respondent opposed that approach and the District Judge...
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