In Hall v Derby Teaching Hospitals NHS Foundation Trust, Master Thornett considered the claimant’s application for permission to rely upon additional neurosurgical evidence and for directions in consequence, including an increase to the claimant’s previously budgeted costs.
Unusually and at considerably more expense, the application ended up being heard over two hearings on 18 October and 15 November 2018 and, even more unusual, was followed by a reserved judgment.
Case background
The claim arises from negligent performance of keyhole removal of the claimant’s gall bladder in July 2013, which later required open surgery. The defendant admitted that had the keyhole surgery been performed to an acceptable standard, the open surgery could have been avoided.
As a result, the claimant was left with residual symptoms including right foot weakness, and instability and spinal lesions that her neurologist felt unable to comment about. The claimant suggested that an expert neurosurgical opinion would confirm if these symptoms were connected at all to the initial keyhole surgery.
All at the same time, the claimant issued her application for permission to rely upon neurosurgical evidence and went ahead with instructing a neurosurgeon notwithstanding she didn’t have permission to do so. The neurosurgeon’s report (unhelpfully for the applicant) left out particular diagnoses and did not link the residual symptoms with the initial keyhole procedure. Once the neurosurgical report had been obtained, it was sent to the applicant’s existing experts.
Before the hearing of her application, the claimant did not communicate with her opponent about why she now needed to rely on such neurosurgical evidence.
The judgment
Significantly right at the beginning of his judgment, the master gave guidance with regard to expert evidence and CPR 35 applications.
Firstly, he emphasised that the applying party should correctly identify any revised decision or relief pursued by the time of the hearing, rather than as sought when the application was drafted. Any change of position/development in the application between issue and the hearing must be made clear to the respondent as soon as possible before the hearing and to the court at the start of the application. The applicant failed to do this and hence why the application then had to be heard over two hearings about which the master was critical.
Secondly, the master made clear that parties should not assume that judges have an “encyclopaedic knowledge of hearing bundles by some form of osmosis because materials appear in the hearing bundle as delivered”. In effect, he highlighted that court time and resources were at a premium. This was relevant particularly as the applicant’s position had changed since her application was issued. Such time and resources could have been saved if only the applicant had made known her change in position much sooner.
Lastly, parties should provide concise case summaries or skeleton arguments setting out the most relevant information regarding the application as it stands at the date of the hearing so that applications can be dealt with efficiently and swiftly and not, as happened in this case, require another hearing date.
The master adjourned the hearing on 18 October 2018 because the applicant simply hadn’t canvassed with the respondent her new requirement to rely on neurosurgical evidence, albeit it was her existing neurologist who recommended neurosurgical input. The master took the view that it was only fair that the respondent have time to consider its position. An informed decision by the court could only be about whether permission for the neurosurgical evidence was required once the respondent had been afforded such time.
It only transpired at the hearing on 15 November 2018 that the applicant had (without any permission to do so or without knowing her opponent’s view) already disclosed the neurosurgeon’s report to her existing experts. The master had read the existing experts’ reports and found that the existing experts had not been helped at all by the neurosurgical evidence.
The application also set out the applicant’s neurologist’s wish to have expert neurosurgical evidence available. The master was mindful about keeping costs down by having fewer experts, weighed against the positive likelihood of narrowing the issues in dispute by allowing new expert evidence, all with reference to the overriding objective. The master made the point that, as there were no neurosurgical elements in this case, the neurologist’s preference to obtain an opinion from a neurosurgeon was, in effect, contrary to the overriding objective.
The applicant’s application for permission to use neurosurgical expert evidence was not allowed and moreover, at her own cost, any references to the neurosurgeon’s report had to be taken out from the applicant’s current experts’ reports. It obviously followed that the applicant was ordered to pay her opponent’s costs of the application.
Practical implications for practitioners
This case brings about a number of implications for practitioners:
- Carefully scrutinise whether further expert evidence is actually necessary or just wanted by a party/existing expert. Applicants will be on a much safer footing if further expert evidence is definitely needed, particularly if it crucially narrows the issues in dispute. This will assure the court that the ever-important principle of proportionality and the overriding objective are both being observed.
- Don’t assume a judge knows your case/application inside out. With little to no reading time afforded to judges for applications, a case summary/skeleton that is as short as necessary and which highlights the relevant documents and any changes in position/evidence can surely only help to assist the judge.
- Any party choosing to implement steps in advance of obtaining the court’s permission definitely runs the risk that its later application could be dismissed with costs consequences. So do wait until permission has been granted.
- Finally, if the basis/nature of an application alters at all following its issue, an applicant must place the opponents and court on notice so that some protection is afforded to the applicant from wasted costs and valuable court time and resources are saved.
