United States Government v Montgomery (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,MR JUSTICE CHARLES |
| Judgment Date | 24 March 2003 |
| Neutral Citation | [2002] EWCA Civ 392 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2001/1724 |
| Date | 24 March 2003 |
[2002] EWCA Civ 392
IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PRESTON DISTRICT REGISTRY
(Mr Justice Mitting)
Lord Justice Simon Brown
Vice President of the Court of Appeal, Civil Division
Mr Justice Charles
B3/2001/1724
MR M TURNER QC (instructed by Forbes, Marsden House, 28–32 Wellington Street (St John's), Blackburn) appeared on behalf of the Appellant
MR J LEIGHTON WILLIAMS and MR J BELL (instructed by Irwin Mitchell, 21 Queen Street, Leeds) appeared on behalf of the Respondent`
Monday 11 March 2002
The claimant respondent is now 36. On 11 November 1996, when she was 31, she suffered a severe brain injury in a road accident. Liability is admitted. Quantum is in issue: the claimant needs round-the-clock nursing care and the claim is huge; just how huge will depend not least upon the claimant's life expectancy.
Experts were instructed. The claimant's expert was Dr Walton, a consultant physician in rehabilitation medicine. The defendant's was Dr Burt, a consultant neurologist and a consultant in spinal injuries. The respective estimates of life expectancy changed, but eventually came to rest at 60 on the part of Dr Burt and 70 on the part of Dr Walton.
On 22 December 2000 the claimant obtained a report from Mr Gardner, a consultant surgeon in spinal injuries at Stoke Mandeville Hospital. His view is that the claimant will live until the age of 75 or 76, or indeed maybe longer. The claimant thereupon applied for permission to rely on this evidence too. On 17 February 2001, shortly before that application was heard, Mr Gardner produced an expanded version of his December report which reviewed a number of studies relating to the life expectancy of patients with spinal injuries.
The application came before District Judge Ashton on 27 February 2001. He was managing the case and had already in December held a case management conference which he had then adjourned. He refused the application to admit Mr Gardner's evidence, but he gave permission to appeal in these terms:
"This raises an unexplored point of great importance in the present case (and potentially in others) on the late introduction of supplemental expert evidence pursuant to the Civil Procedure Rules 1998."
It is perhaps an interesting comment that Mr Turner QC for the appellant defendant suggests that it did no such thing.
The appeal came before Mitting J on 19 July 2001 and he allowed it. He permitted Mr Gardner to give evidence at the quantum trial and he also gave permission for the defendant, if he wishes, to instruct a further expert in life expectancy.
The essential basis of Mitting J's judgment was that the district judge misunderstood Mr Gardner's evidence and in particular failed to recognise that it "introduced, for the first time, an element into the assessment of life expectancy which had not previously been there", that element being
"statistical evidence, drawn mainly from spinal injuries cases, which would suggest what the life expectancy of someone who whom a good standard of care was available, might be."
That misunderstanding by the district judge entitled Mitting J to exercise his own discretion. Posing the question:
"Can the issue of life expectancy, (an issue of very great importance in the case) justly be resolved without evidence of the type which can be given by [Mr] Gardner?"
the judge said that the answer "had to be 'No'."
Disappointed by that result, the defendant in turn sought permission to appeal; permission, that is, to bring a second-tier appeal. By section 55 of the Access to Justice Act 1999 it is, of course, provided that such an appeal may not be brought unless it raises an important point of principle or practice or there is some other compelling reason for the Court of Appeal to hear it.
That application initially came before Mantell LJ on the papers, when it was refused in these terms:
"Unlike a refusal to allow the introduction of evidence this is not a decision which can lead to injustice and I fail to see that the proposed appeal raises any important point of principle or practice or that it contains some other compelling reason for the Court of Appeal to hear it."
On the renewed application, made orally before Latham LJ on 9 November 2001, permission to appeal was granted. The reason it was granted (and it is plain that it was the only reason) was because Latham LJ was given to understand that Mr Gardner's report, or at any rate his expanded report of 17 February 2001, had not been before District Judge Ashton and that this fact had not been appreciated by Mitting J, who was thus in error in concluding that the district judge had made a mistaken assessment of Mr Gardner's potential evidence.
In short, the position overall is that Mitting J thought that the district judge had misunderstood the position; Latham LJ thought that Mitting J had misunderstood the position; and now the claimant suggests that Latham LJ misunderstood the position—although it is not, I think, suggested that any misunderstanding respectively by Mitting J or Latham LJ was through any fault on their part. The claimant, besides resisting this appeal, has applied to set it aside on the ground that both of Mr Gardner's reports were in fact before the district judge. It has seemed to the court sensible to regard that application as subsumed within the appeal itself: we could detect no useful purpose in treating it as a discrete matter.
The appeal has generated a considerable mass of paper and I could easily give a long judgment in the matter. That, however, is not my intention. Rather I propose to deal with it really quite shortly, since I have reached the clearest conclusion that it never began to qualify as a permissible second-tier appeal.
Let me first consider what was the factual position before the district judge. The accounts as to this differ. The claimant's evidence suggests that not only was Mr Gardner's second report of 17 February 2001 before the district judge but that he read it. The district judge himself, however, in a written note dated 11 February 2002 (prepared for this court and the parties in response to a letter asking for his recollections) says that the report of 17 February 2001 was offered to him during the hearing but that:
"I declined to look at it because I felt that it was too late in the day to introduce a further supportive report to counter the effect of the report of another expert previously relied upon …. the report in question was made available for the first time part way through the hearing but not looked at or relied upon by me."
Certainly that recollection accords more closely with the reason given by the district judge for granting permission to appeal in the first place.
For my part, I think it matters nothing whether the district judge chose to read the report or chose not to. The undoubted fact is that the report was put before him and it was that report which the claimant was seeking permission to adduce in evidence. The district judge accordingly either misunderstood what he read or, because of not reading it, misunderstood what actually it contained. One way or the other, therefore, it seems to me that Mitting J was right to say that the district judge had "misunderstood the nature of the evidence to be given by [Mr] Gardner."
If that is the position, then two things inescapably follow. First, that Latham LJ's grant of permission was made upon a false basis. Let me quote just one or two short passages from his judgment:
"[District Judge Ashton] did not have an opportunity to see or read the report from [Mr] Gardner, although it was, as I understand it, in existence at that time …. Before me, Mr Turner has submitted that the approach of the judge was at least arguably flawed because he had not appreciated that the report was not before District Judge Ashton …. As we now know, the report was not before the district judge, and the district judge could not therefore be said to have made any mistaken assessment of the report. It follows that consideration needs to be given to the extent to which that vitiates the decision of Mitting J, bearing in mind that he was dealing with the matter on the basis of fresh material without there...
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