[2011] EWHC 3980 (QB) TEDR Volume 17 Issue 2

The Facts

The Applicant (the NHS Trust) applied for Summary Judgement on certain outstanding issues in a clinical negligence claim brought by the Respondent (Mr Wright).

The Respondent had had severe acute pancreatitis. The Respondent had an operation as a result which was called a “pancreatic necrosectomy” which meant that a surgical incision was left intentionally open when the surgery was concluded. In due course an attempt was made to fit a new laparotomy bag to the wound in place of the bag that had been fitted some days following the surgery. However, the original bag proved to be difficult to remove and between a relatively small (but clearly visible) amount of the original bag was left behind unremoved. Around a fortnight later the remaining piece of the original bag was eventually removed.

The presence of the remainder of the original bag had caused a sinus wound discharge. The NHS Trust admitted breach of its duty of care to the Respondent in this regard, and also that its conduct had been the cause of a sinus wound discharge. A Consent Order was agreed and judgement entered in relation to that particular issue and it was provided that damages were to be assessed.

The Respondent, however, had raised additional and serious allegations, which included that the surgery had been undertaken without his consent; had been unnecessary; and was surgery which was “barbaric” and “experimental”. All of those assertions were denied by the NHS Trust.

The Respondent had wanted to rely on a report of a specialist consultant surgeon in circumstances where that surgeon had withdrawn from acting for the Respondent, and had made it clear that he was not willing to give expert evidence on his behalf.

The position arose that the Respondent had been debarred from relying on all expert evidence because he had not been able to obtain a new expert by the date ordered by the Master who dealt with the timetable for the conduct of the case.

The Respondent had failed to make any application to vary or set aside the Master’s decision to make a debarring order within the time limit set by the Master (or even outside that time limit). The Respondent applied to the High Court judge for an adjournment to allow for the appointment of a replacement expert witness. The Respondent provided a letter from a prospective expert witness who stated he had seen the Respondent and was willing to act as his expert witness.

The Issues

First, should an adjournment should be granted to allow a fresh expert’s report to be prepared? and secondly, did the Respondent’s case stand a real prospect of success at trial?

The Decision

The High Court judge held that the new expert’s letter did not give his opinion (even provisionally) on the Respondent’s case and did not deal with the new expert’s availability to give evidence at trial. The Court considered that the Respondent’s proposal was simply “too little, too late”.

An application by the Respondent to challenge the Master’s decision not to allow him to rely on the original expert’s report had been dismissed and there had been no application within the time limit laid down by the Master to vary or set-aside that order.

It was decided to be much too late to make such an application in circumstances where the trial was to take place imminently (being in three days time).

The only potentially available evidence to support the allegations of clinical negligence was in the original expert’s report. The High Court judge then assumed for present purposes that that report would be admitted at trial and posed the question of whether that report, if put in evidence before the court, would mean that there was a real prospect of success on the outstanding issues.

The judge decided that even if the original expert’s report were to be placed before a trial judge, the Respondent’s case had no real prospect of success.

The Court took into account the fact that the original expert witness would not be giving evidence on oath in court, and so he would not be tested by cross-examination in the witness box and hence his evidence would not be as strong as evidence tested under cross examination.

The Court considered the Overriding Objective set out in the Civil Procedure Rules that it was to deal with cases justly, fairly and expeditiously having regard to the availability of court resources and whilst it expressed certain regret at its decision in the light of the Respondent’s personal plight, it found that there was no real prospect of success on the outstanding issues for determination and so gave summary judgement to the NHS Trust.

Comment

One might perhaps have expected some latitude of an adjournment to allow the new expert urgently to provide the details which the court commented that had not been provided in his letter – i.e. (a) as to his opinion on the merits of the case (even on a preliminary basis to be expanded in a later detailed report) and (b) to give his dates of availability. However it seems that the trial judge had formed a very pessimistic view on prospects of success, was mindful of the imminent trial date and evidently wished to put the Respondent’s case out of its misery.