Chambers v Buckinghamshire Healthcare NHS Trust: A detailed examination as to why the defendant could not adduce its expert evidence

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CHAMBERS –V- BUCKINGHAMSHIRE HEALTHCARE NHS TRUST [2013] EWHC (QB) (Master Cook ) (18/12/13) Chambers -v- Buckinghamshire Healthcare NHS Trust-1

This case  highlights the fact that defendants are far from immune from the problems caused by Mitchell.

THE FACTS

Chambers was a clinical negligence claim. On the 31st May 2013 Master Cook made a comprehensive order for directions. This included the following directions for the provision of expert evidence:

  • The parties had permission to rely on evidence in the field of accident and emergency, microbiology, orthopaedic surgery and audiology. Those reports were to be simultaneously exchanged by 9th August 2013.
  • Each party had permission to rely upon the evidence of an expert in the fields of care, prosthetics and psychiatry. The claimant’s reports were to be served on the 19th July 2013. The defendant’s reports were to be served by the 25th October 2013.
  • The defendant had to serve a counter schedule by the 25th October 2013.
  • Liability experts were to have discussions by the 27th September 2013 and the condition and prognosis experts were to have discussions by the 6th December 2013.

The defendant was unable to comply with the order for exchanging expert evidence and applied, twice, to vary the order. The deadline was extended to the 21st October 2013 yet the defendant did not serve its evidence as required.

ISSUES BEFORE THE MASTER  

The claimant sought an order debarring the defendant relying upon an expert’s report served late, any further expert evidence and their counter schedule of loss. The defendant applied for a variation of the order of the 31st May 2013.

THE DEFENDANT’S ARGUMENTS

The defendant acknowledged that they had been in breach of the court order and gave the following reasons:

·         That the defendant had been given an incomplete set of the claimant’s GP records, which was partly responsible for the inability of the defendant to comply with the order.

·         After receiving further medical records the defendant had to amend the defence. This meant that one of the expert reports had to be amended prior to service.

·         The National Health Service Litigation Authority also gave instructions to the Defendant’s solicitors that they were not to serve one of the expert reports without the amended defence.

However Master Cook held that it was “no excuse for a failure to comply with an order of the court to say that my client gave me instructions to ignore the court order.”

 THE CLAIMANT’S ARGUMENTS

The Claimant’s argument was simple. This was a paradigm case for the court to apply the stricter approach that the Jackson rule changes to the Civil Procedure Rules have brought about.

THE CONSIDERATION OF MITCHELL

In reaching his decision Master Cook outlined the robust approach that the Court of Appeal had advocated in Mitchell.

20. The Court of Appeal in the case of Mitchell gave guidance as to how the new approach should be applied in practice. I bear in mind that the Court of Appeal’s observations in the case of Mitchell were made in relation to an automatic sanction and an application that had been made for relief from sanctions. However, it is clear to me and from the case law that the considerations applicable under CPR 3.9 are equally applicable to circumstances where, an application is being made to extend time for compliance with a deadline contained in a court order. There is ample authority to underline the fact that that is in effect and by any other name an application for relief from sanction and the court should consider the matter in accordance with criteria set out in CPR 3.9.

 

21. The practical guidance given by the Court of Appeal requires the court to consider firstly whether or not the failure to comply with the relevant rule or practice direction or court order can be properly regarded as trivial. In this case it is conceded by Mr Barnes that the failure to comply cannot be regarded as trivial. “41. If the non-compliance cannot be characterised as trivial, the burden then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.”

 

22. In this regard the Court of Appeal made reference to a series of cases, beginning with the case of Hashtroodi v Hancock [2004] EWCA Civ 652, which were decided in relation to the period of validity of a claim form under CPR 7.6. I remind myself that in this case we are concerned with an application for relief from sanction which was made one month after the relevant deadline had expired.

 APPLYING THIS TO THE CURRENT CASE

The Master then went on to consider the effect of Mitchell on the current case:

 23. In the circumstances, it is submitted on behalf of the claimant that there is no good reason given by the defendant for failing to comply with the order, or alternatively no good reason for making the application over a month after the deadline for service of the evidence expired.

 

24. On behalf of the defendant, Mr Barnes makes essentially five points. Firstly he points to the fulsome apology made by Ms Bennett at paragraph 48 of her witness statement. He submits that it is not every case where the solicitor owns up to the mistake and apologises. It seems to me the fact an apology may have been made is not a matter to which I can attribute great weight. To do otherwise would be to excuse that which the Civil Procedure Rule changes were brought into change.

 

25. Secondly he submitted that it was the difficulty with regard to the accident and emergency records which resulted in the deadline for the exchange of expert evidence in this case being put back and was the reason for the late service of the evidence and that there is consequently a good explanation for the delay, in the sense that this is not a case of a solicitor simply doing nothing or overlooking a deadline but it is an example of a later development in the course of litigation which could not necessarily have been foreseen at the time the original deadline was set.

 

 

UNFORESEEN ISSUES WITH EXPERTS

 

The Master also considered the common problems associated with instructing experts:

26. It seems to me that this submission has to be seen in context. I accept that the difficulties with an expert may in some circumstances result in unforeseen issues occurring and may result in procedural timetables being delayed. This may be due to either late engagement between the expert and solicitors or busy experts not being able to meet the deadlines that have been imposed upon them. However, it seems to me that the context here includes the fact that in clinical negligence cases the experts are provided at the outset with a copy of the procedural directions. The purpose of this is to enable the experts to understand the time table for the progress of the case, to appreciate their own position within the procedural timetable and, above all, to make sure that those matters which are outside the control of solicitors, for example the delivery of the reports and the conduct of the joint meetings, take place on time and in accordance with the court’s orders. Secondly, it seems to me that I have to have regard to the fact that there were a series of orders here. The defendant’s solicitors, if there was a problem, were alerted to the nature and extent of the problem at the outset when they realised that they might be unable to comply with the initial directions order made by me. This resulted in two further applications being made for extensions of time, so the issues relating to the time for compliance with the directions, on any view, must or should have been at the forefront of the defendant’s solicitor’s mind. More so once instructions had been obtained from the NHS Litigation Authority not to serve the expert evidence without it being accompanied by an amended defence.

 

THE DEFENDANT’S FURTHER ARGUMENTS

 

He then gave consideration to the other issues raised by the defendant.

 

 

27. Thirdly it is submitted by Mr Barnes that there is no prejudice or jeopardy to the claimant in the late service of the defendant’s evidence or in permitting late service of the defendant’s evidence. He points to the fact that the procedural timetable still has enough room to enable the consequences of the late service to be addressed. In particular for the defendant to deal with the matters set out in the expert evidence and for the experts to have their joint meetings in time to enable the trial to take place. The enforcement of a sanction, of course, is something that may not necessarily prejudice the claimant and indeed may amount to a windfall for the claimant, but it is nonetheless a matter which seems to me to form part of my overall considerations. It seems to me that the procedural time table was as set out in my original order and it must be bourne in mind that the time for exchange of experts has been pushed back without a corresponding shift in the proposed trial date or time for conducting ADR. The procedural time table following exchange of expert evidence is designed to enable settlement meetings or ADR to take place and the possibility of effective part 36 offers to be made before trial. In the circumstances there may well be prejudice to a claimant if this period is unnecessarily foreshortened.

 

28. Fourthly it is submitted by Mr Barnes that if the defendant were to be deprived of the opportunity to rely upon the expert evidence in support of its case on causation, the result would be disproportionate. He submits it is a reasonably short-term failure, the expert evidence has now been served, but failure to admit it will have dramatic consequences. Again this seems to me to be a fact of life in the post-Jackson world. Failure to comply with rules, practice directions and orders can attract draconian consequences. That is the raison d’être for the get-tough approach. Lord Justice Jackson’s view endorsed by the Court Appeal is that the legal profession, when faced with such consequences, will mend its ways, with the result that delay and non-compliance with orders rules and practice directions will become a thing of the past.

 

29. As part of the last submission Mr Barnes went on to suggest that a distinction could be drawn on the facts of this case between a situation where a claimant felt it necessary, because of the conduct of the claim on the other side, to come to court and obtain an unless order with a clearly specified sanction. He submitted that that was not the case here and that the defendant had not been in breach of an “unless order” or a “final order”. I have to say I was not impressed with that submission, where a deadline for doing a particular act has already been extended three times that fact alone is an important and relevant consideration for the court, although I recognise the impact of an unless order may well be more readily appreciable by a party having to comply with it, and a party who does not comply with an unless order may have less room for complaint in the event that there is a failure to comply.

 

30. Lastly Mr Barnes submits that it is relevant to have regard to the conduct of the litigation generally. He points to the difficulties at the outset which were created by the claimant’s late notification of the claim, the manner in which the pre-action protocol was complied with, the fact that there was no schedule of loss at an early stage and that it was only in July 2012 that the majority of the claimant’s evidence in support of the claim was served. He also underlines the ongoing difficulties referred to by Ms Bennett in her witness statement relating to the GP records. In the circumstances, he asks me to stand back and to remind myself that although the climate has changed, the overriding objective still requires the court to deal with cases justly. It would be unjust, submits Mr Barnes, given the underlying reason for the defendant’s failure to comply, to make an order which would effectively deprive it of the wherewithal to defend the valuable claim that the claimant puts forward. In essence he submits that proportionality remains at the heart of the court’s consideration.

THE MASTER’S CONCLUSION

31.  Over all I consider this application to be finely balanced. It seems to me that the delay which has occurred here is something that should and could have been foreseen by the defendant’s solicitor. The fact that there was a deadline for service of the expert evidence was clearly overlooked or ignored. On the other hand, it seems to me that the difficulty relating to the late development and obtaining of the full set of GP records is something that was also foreseen and was ongoing from a relatively early stage and was the prime reason for the previous requests for extensions of time. Were that the only factor and had the application been made in time, it seems to me that the defendant may have provided the sort of good reason for the court to exercise its discretion in the defendant’s favour. However, when I add to that that this application was made more than a month after the expiry of the deadline, and in absence of any good explanation for the added delay, it seems to me that the consequence must be that the defendant fails to clear the burden placed upon it to show good reason for its failure.

 

32. The two issues combine. Firstly, this was an ongoing and foreseeable problem. Secondly, it should have been the case that an application was been made in advance of the expiry of the deadline. That is so because of the nature of the problem. Thereafter the failure to take any step to rectify the problem for over one month seems to me to be wholly without explanation and to be contrary to the requirement that any application for relief should be made promptly. That remains part of the amended CPR 3.9.

 

33. I realise that the effect of my decision may well be to tie the defendant’s hands or prevent it from deploying its expert evidence to challenge the claimant’s claim, and I realise that in a valuable claim such a result may appear to an observer to be unjust. But unless the court is robust in relation to its process, the culture of delay and non-compliance with orders that was identified by Rupert Jackson and which the Court of Appeal have sought to address in the case of Mitchell will continue.

 

34. This is not a case where the defendant can say that the case of Mitchell has come as a surprise. The changes to the Civil Procedure Rules came into effect on 1 April 2013. They were widely heralded in the legal press and in the work carried out by Sir Rupert in the preparation of both his interim and final report. They were the subject of numerous implementation lectures. In the circumstances it seems to me that the legal profession should by now, and certainly by the stage that this application should have been made , have been fully aware of the need to act promptly and to supply full reasons for any failure to comply with an order in circumstances where an application for relief was afoot.

 

35. In case it has not been made clearly apparent, it seems to me that the explanation given by Ms Bennett for the delay in her witness statement is far from convincing or comprehensive, particularly in relation to the timing of the instruction of the experts and in relation to her appreciation of the time at which a difficulty was beginning to arise. I stress that difficulties in relation to expert evidence can come about for a variety of reasons. It can come about because the solicitor has taken their eye off the ball or it can come about because the solicitor has been diligent and the expert has taken his eye off the ball. It can come about because both have been diligent but unforeseen events have caused delay. The permutations are almost endless, but unless a full and proper account is given of the difficulties the court is hampered in its understanding of what may or may not be said to amount to a reasonable explanation for the failure to both achieve the deadline and to make any application in time.

 

36. For these reasons the claimant’s application succeeds and the defendant’s application is dismissed.

SUMMARY

  • It provides further confirmation that the Mitchell principles apply to all parties.
  • Problems with instructing experts will not constitute a good reason and result in relief from sanctions.
  •  DO NOT IGNORE COURT ORDERS. This cannot be stressed enough. If you cannot comply, apply for an extension of time before the deadline.