DEFENDANT REFUSED PERMISSION TO ADDUCE FURTHER EVIDENCE: LATE EVIDENCE IS ALWAYS A PROBLEM
I am grateful to barrister Michelle Fanneran for sending me a copy of the decision of His Honour Judge Cotter QC in the case of Moore -v- Plymouth Hospitals Trust (11th May 2016). This involves consideration of relief from sanctions following an attempt by the defendant to file a supplementary witness statement. Although a case about relief relief from sanctions it is also a timeous reminder of the need for a defence to plead the case fully and to make an application for relief from sanctions promptly.
“… this application if granted would in part condone the continuance of the old lax culture of non‑compliance and delay, as typified by the approach between February and April when no urgency was exhibited, and, indeed, the deliberate step was taken of not even telling the claimant that Mr Fekry had said something which was going to dramatically alter matters. The submission that there is no real mischief here because the evidence would have emerged somewhat like the proverbial rabbit out of the hat at trial is also in line with what I view as a somewhat complacent approach to litigation. Such approach is entirely contrary to the weight of recent jurisprudence. Litigation is to be conducted fairly and efficiently and court orders are designed to ensure that that is so. It is right and proper that 3.9 reminds a judge at this stage of the importance of compliance with orders. “
- An application by the defendant to adduce a further statement from a witness less than three weeks before trial was refused.
- There was no good reason for the issues raised in the new statement not to have been raised earlier.
- The matters raised in the statement had not been pleaded in the defence, despite specific allegations in the particulars of claim.
- There had been unjustifiable delay in making the application.
- The new matters raised caused considerable prejudice to the claimant.
The claimant brought an action for clinical negligence following surgery. The sole allegation of negligence that remained related to allegations of negligent surgery. A central theme of the claimant’s allegations was the negligent use of the retractors.
“It was and is a specific allegation within the pleaded case that the retractors were used for an excessive period of time without any steps being taken to eliminate the consequential tension upon the nerve”
This allegation had also been set out in a case summary in 2014. However there was no specific response to this in the Defence.
In March 2015 an order was made that witness statements be served by the 10th April 2015. This was extended to the 26th June 2015.
- The defendant served a statement from the surgeon who had operated. The statement was of some length. However no reference was made to retractor use or to releasing the pressure during the course of this prolonged operation.
The judge observed
“It is somewhat strange, to say the least, that there was no specific mention of the use of retractors in the statement”
- Liability reports were exchanged on the 2nd October 2015. The claimant’s report referred to the likelihood of damage being caused by retraction.
- The treating surgeon, in a note set out a detailed response.
- The defendant had a conference with leading counsel on the 11th February 2016..
- There was to be a joint expert’s meeting on the the 28th April 2016, shortly before the meeting the defendant made an application for relief from sanctions and for permission to rely on an additional statement from the operating surgeon.
- The trial was listed (on liability only) as a 3/4 day trial on the 6th June 2016 (17 days after the date of the hearing).
THE NEW WITNESS STATEMENT
The judge considered the content and impact of the further witness statement that the defendant sought permission to adduce.
“It is necessary to consider briefly the content of Mr Fekry’s witness statement. Its states out as follows.
‘Having read Mr Brindle’s report, I can see he has taken the lack of reference of steps to protect the femoral nerve in my previous statement and my operation notes as meaning I did not take any steps to protect the femoral nerve. This is not correct. I thought it would help the court to set out what my standard practice is to protect the nerve. I can confirm that I am always extremely careful when placing the anterior retractor over the front of the acetabulum as this is such an important part of surgical technique but I always release the retractor whenever I am not actively working upon the acetabulum. This is something I always practice as part of my basic surgical technique and this is what I did during the claimant’s surgery. These are such basic surgical steps I always undertake I did not consider it necessary to mention in my previous statement, as I assumed it would be understood that they were done’.
He then refers to the surgical incision. He did not return to its length but states that he had a clear view of the acetabulum and did not agree that it required to be extended. He then says he would like to take the opportunity to point out the length of the procedure was actually two and a half hours, and not three and a half as suggested by Mr Brindle. I pause to observe, he does not point out or in any way deal with the fact that it is admitted in the defence that the operation took three and a half hours. He continues in relation to retraction setting out that:
‘The acetabulum was exposed twice during the procedure …….. anterior retraction was required to facilitate the exposure of the acetabulum but I did not sustain this for the entire period of exposure. I applied the precautions I have set out before regarding retractor placement having gentle retraction and releasing retraction intermittently’.
He finally says that anterior retraction would have been brief because he always relaxes the retractor when not working directly on the acetabulum, and furthermore, anterior retraction is not necessary or possible for the majority of the time.
So Mr Fekry advances for the first time a detailed response on the central allegation; retractor use. “
THE ATTEMPT TO ADDUCE NEW EVIDENCE
The judge considered that this was an attempt by the defendant to introduce a totally new element to the case.
The reality, as is quite clear from the submissions before me, is that the heart of the application is the attempt at this late stage to introduce evidence as to the use of retractors and specifically of release during the course of the operation.
Mr Tassart says that this adds a new and fundamentally important dimension to the case. It seems to me, taking matters in the round that he is right. Mr Tassart also sets out that, if allowed in, the statement would have a number of repercussions. It would have to be considered by the legal advisors, there may well need to be a further report from Mr Brindle, who will have to consider these new matters, there should be amended defence and potentially a reply, that there would have to be a revision to the agenda for the joint meeting, and the claimant and the ATE insurer must be advised of the developments. He then says that the parties would need to take stock and consider matters and advise and prepare for trial. It is the Claimant’s submission that at this late stage just before the trial date this application effectively amounts to an ambush.
APPLICATION OF THE DENTON PRINCIPLES
The significance of the breach
It was conceded that this was a significant breach.
Was there a good explanation for the breach?
The judge roundly rejected the defendant’s contention that there was a good reason for the breach.
36. The second stage is whether there was a good explanation for the failure to serve the statement in time. In the application, the defendant says that there was and relies upon the reasons set out for the need for the further statement. However this argument is simply not sustainable. As I have indicated, it seems to me that the reality is that this is not an attempt to deal with three matters referred to, rather is an attempt, plain and simple, to introduce new evidence on a central issue. The issue of the length of the incision was already set out in the first witness statement. There may well be a problem if Mr Fekry is wrong in what he says ; however his evidence as to the length of the incision and what he was able to do with it is properly set out in that first witness statement. As to the length of the operation, this was admitted in defence but Mr Atkins has already relied upon the relevant note, which was not compiled by Mr Fekry.
The purpose of a witness statement
The judge also considered an argument that the evidence would “come out” in the evidence from the surgeon.
“First, it is said that these matters would have come out in oral examination as Mr Fekry’s surgical practice is the key issue in the case, and it was inevitable that it would have been explored in detail at trial. The first and obvious observation is that this ignores the proper purpose of a witness statement a fortiori in a case such as this where the claimant can have no direct knowledge of what occurred in the absence of it being set out in disclosed documents, specifically the operative records, the defence, which I pause to observe is fully pleaded, or the witness statements.”
The claimant’s objections were not perverse
“The next point made is that the claimant’s objection is perverse because the use of the retractors has ‘emerged’ as the principal issue. However this ignores the fact that it has always been a central allegation in the claimant’s case. It may be that the other allegations have fallen away, but that does not mean that this allegation has suddenly itself gained the importance it otherwise did not have.
Thirdly, there is the explanation put forward that Mr Fekry simply took it for granted that no surgeon would contemplate leaving retractors in place throughout. Mr Fekry was a surgeon being criticised for his use of the tool in question and there was a specific allegation that he had used it for too long. He was professionally advised by solicitors who are nationally renowned in the field of clinical negligence. I have very considerable difficulty in accepting his explanation and indeed have no additional or further explanation as to why the omission was not picked up and he was not asked to further comment.”
The reality: this should have been done at the outset .
“The reality is it is quite clear that the issue of the use of retractors could and should have been dealt with in the first witness statement and none of the points raised give any good reason for the failure to do so. So the Defendant does not succeed at the second stage.”
ALL THE CIRCUMSTANCES OF THE CASE
“That therefore leaves the third ground, and consideration of all the circumstances. In dealing with an application such as this justly, all relevant factors must be considered. Of course, such factors and the weight to be attached to them varies considerably from case to case and within the assessment process the court must keep focused on the effect of a breach and pay specific attention to the factors expressly set out in the rule. Those factors are the need for litigation to be conducted efficiently at proportionate cost, and secondly the need to ensure compliance with rules, practice directions, and orders.
So I start with considering the effects of the breach? I turn first to the impending trial date.
The loss of the trial date would be a huge blow to the claimant. Further I have no doubt as the Designated Civil Judge for the region overseeing the listing of multi-track and High Court Cases, and indeed trying them myself on this region, that there would be very considerable delay caused by re-listing it due to judicial availability amounting to several months. That is before one takes into account the almost invariable problems with the availability of experts, that so frequently makes listing clinical negligence cases so problematic. Further, Ms Harrison raises the possibility that Mr Fekry may be too ill or worse, such that he cannot attend any resumed hearing, amounting to possible prejudice to the defendant if the trial is adjourned; so it is clear that the loss of the trial date would potentially have a devastating impact on the timely progression of this claim.
The application contains the assertion, and indeed it was Ms Harrison’s submission, that the trial date can still be met. It is now 11 May and the trial commences on 6 June. It is not as much as four weeks away, as Ms Hemming rather misleadingly states in the witness statement because that would take it to the third day of the trial. More accurately, as I said at the outset of this judgment, there are only 17 working days before the start of the trial. The orthopaedic experts are yet to speak and prepare a joint statement. It is a tight enough timescale without any significant developments. The application states that the trial date can be kept as the witness statement does not seek to bring in new facts or issues but simply clarifies the evidence already provided and responds to the new suggestion as regards the length of the incision. In my view that submission is simply untenable.
In my experience, the effect of a trial date is always a highly material factor in applications such as this and the decision of Chartwell Estate Agents v Fergies Properties (1) and Hyam Lehrer (2)  EWCA Civ 506 began the first signs of a softening of the post Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 hard line adopted by so many courts .The factor that the trial date could be kept was seen as very important by Globe J, the judge at first instance in that case. Indeed post Denton, the issue of the trial date is often at the heart of the factors at the third stage of consideration, particularly if the application is made later in the life of the action and as the trial date approaches.
When challenged Ms Harrison expanded upon the reasons why she submits the trial date can be met and in my judgment, it is necessary to consider and explore what is really meant by the defendant’s assertion that the trial date can be kept. In my judgment it is not as simple, as just answering a binary question. My practical experience in the field of personal injury and clinical negligence over 30 years supports the claimant’s submission based on Mr Tassart’s witness statement that it would require the claimant and her legal advisors to take a number of important steps in a very short period of time.
Firstly, they would have to consider the new statement and the extent to which it can be challenged or clarification sought specifically in relation to the specific periods in which retraction was released. Mr Fekry still does not give particular or specific detail, simply referring to intermittent release. The alleged extent /times could be very important Ms Fanneran says that this would have inevitably led to a Part 18 request if the witness statement had been served as it should have been a year ago with this detail in but very careful consideration would now have to be given in the short time available as to whether it was possible or necessary to seek to get further information clarification. I pause to observe that she stated that if it had been served on time, back in June 2015, without the new information being the subject to the suggestion of prompting or only being set out in response to a report, and after proper exploration and consideration including with expert input was accepted by the claimant’s side as proper, then it is even possible it would have affected the claimant’s merits. However that is not now the position and what is faced is an entirely different one. The arrival of the statement is viewed with considerable suspicion as set out by Mr Tassart in his witness statement.
So the statement raises further questions that are unanswered, specifically as to the extent to which there was release. I do not accept the submission made by Ms Harrison that allowing the statement in would still allow the claimant to proceed in the case as before. Rather I accept that there would have been detailed and proper exploration of this issue and that cannot now be easily done. In reality what would need to take place in the short time available is that conference would have to take place with leading counsel to consider what could be done with the witness statement in its current form.
Another necessary step would be that Mr Bridle should be asked to comment by way of additional report. Of course, experts’ availability to do so at short notice is always an issue, busy as such experts frequently are. The need for further comment would potentially restrict the timeframe for the joint meeting. It may be that the agenda needs to be further addressed. Mr Harrison says that it does not but Ms Fanneran says that it does; such is the nature of many prolonged discussions about agendas. In any event there would then have to be preparation of the joint statement preparation, it would have to be digested and then further instructions taken and a consultation. The availability of legal advisors may well impede the easy arrangement of a consultation given busy professional lives.
Further the Claimant’s insurer will have to be notified. The insurer may respond and there may be ongoing discussions as to the contents of that response. In light of the insurers position the claimants may need to take stock.
All the matters now need to be completed between now and 6 June, and solely because of the late stage of the defendant’s application.
In my judgement, looking at the totality of these matters, and in light of a realistic view as to the likely availability of experts and counsel and the time it takes for these steps to be properly completed, the trial date is in peril. Any problem with any specific step may mean that the Claimant cannot achieve what needs to be done. I do not put it higher than that. However, even if it is kept, it cannot be kept without putting the claimant at a significant disadvantage due to the need to complete these steps and causing real prejudice to the proper presentation of their case.
Ms Harrison focused on the effects of not allowing relief. She argued that the claimant’s stance in seeking, in effect, to gag Mr Fekry, would make the trial impossible or at least artificial and that it is a highly important factor that Mr Fekry is going to give evidence in any event. She submits that Mr Fekry’s technique as he now wishes to set out would have come out at trial as this is exactly the sort of detail that emerges at trial.
However, Ms Fanneran says in response that this was by no means a certainty. Faced with this a glaring lacuna in the evidence, would Dr Powers Q.C. , leading counsel for the claimant have cross-examined this matter in, or would, bearing in mind his very considerable experience in this field, he have left very well alone? It seems to me there is a very strong likelihood that he would have done exactly that. So I favour Ms Fanneran’s response to this point; that this is by no means a matter that would certainly have come out during Mr Fekry’s oral evidence.
I make three further points. I do not agree as a generality that this is a sort of mere extra detail that often emerges at trial. This is a central allegation of breach of duty, properly pleaded and simply not addressed in the defence or the witness statement. There is a clear and obvious tension between Mr Harrison’s submission on the one hand this is the sort of detail that just emerges, almost as extra colour in the picture, and on the other hand her argument that Mr Fekry is being gagged from dealing with what is described in her skeleton argument as the key allegation. In my view this is a key allegation not extra detail.
The second point is in relation to Ms Harrison’s submission that the new evidence can be challenged in the usual way. In my judgment this ignores the significant difference between what would otherwise be afforded by a year to prepare, with the benefit of clarification of the content and expert consideration as opposed to assessing it potentially with no clarification and in a rush.
The third point relates to Ms Harrison’s submission that everyone would simply have dealt with the evidence as it emerged for the first time at trial. This seems to me to assume what needs to be established, i.e. that the trial judge would simply have allowed the matter to be advanced for the first time and expected the Claimant simply to have dealt with it with no more. For my part, I think that this would have been very unlikely, representing as it would have, an ambush of the first order. In the round, Ms Harrison’s submission on this point seems to amount this; because this evidence would have come to light during the oral testimony of Mr Fekry, in effect, trial by ambush, the application being a lesser ambush should succeed. I simply do not accept this. It may, and I can put it no higher than “may”, given limits on extra questions in chief and that it may not have been an area covered by cross-examination, have come to light during the trial, but even if it did so, the trial judge may well have refused to allow it in, particularly having regard to the fact that the matter was not pleaded.
Another point made by Ms Harrison is that Professor Atkins is inescapably fixed with knowledge of the technique set out in paragraph 11 of Ms Hemming’s witness statement. This rather misses the point that Professor Atkins is an expert whose sole duty is to assist the court within the realm of his expertise. It is not his role before the court to comment upon issues of fact. I accept that he has seen and heard matters other than matters properly in evidence before the court but, because he is not a fact-finder, it is not necessary that he has to deal with whether he accepts those matters or not when giving his expert evidence. He opines on the basis of the evidence before the court. Further, experts can, of course, deal with hypothetical positions. So I do not see that this is an insurmountable problem.
As for the fact that Mr Fekry will be giving oral evidence, I bear in mind that this is something which will undoubtedly have to be considered very carefully by all those involved in the trial process and poses some degree of difficulty. However it can and must be managed. Were the position to be otherwise, the applicant for relief from sanctions in a position such as this, and by that I mean seeking to add very significant fresh additional arguments from a witness is due to give other evidence, would always hold the trump card and relief axiomatically follow. That cannot be right.
Overall, the effects of the breach, in my judgement, would be at the very least to seriously undermine the proper preparation of a trial to the likely prejudice of the claimant. If, as it seems to me must be in some doubt, the trial date can be kept, the claimant faces having to do too much in too short a time.
I now turn to another relevant factor to be weighed into the balance; delay. Delay in the making of this application has unarguably caused avoidable impact on the progression of the claim.
As I have said, the use of retractors should have been dealt with in the first witness statement served now approaching 11 months ago. However, there has been further delay and such delay has been significant.
On 2 October 2015, liability reports were exchanged and Mr Bridle’s opinion was known to the Defendant. It is said that that provoked the instruction of leading counsel. 2 October is now over seven months ago. The report having been received, it was not sent on to Mr Fekry for at least two months. I take that from paragraph nine of Ms Hemming’s statement. There is no explanation for the delay.
I should also add that I do not accept on the limited evidence before me that 12 February 2016 was the earliest opportunity for a consultation with leading counsel. In the absence of detail, it seems to me it was clearly an excessive period, bearing in mind the approaching trial date.
In any event, and my view, most importantly, once it was appreciated there was a lacuna in the defendant’s case, and additional matters needed to be before the court an immediate application should have been made in February of this year, to rectify the position. That was nearly three months ago. I do not accept in the face of a June trial date that it takes from 12 February to 25 April to produce a further witness statement, particularly having regard to the fact that Mr Fekry had already set out the relevant details in a letter. I say this bearing in mind that Mr Fekry is now resident in Egypt. I simply do not understand in this context what is meant by the ‘inevitable time taken by lawyers’ being the significant factor in this. Given the urgency it was simply not properly addressed. Mr Fekry’s ill health has been mentioned as a factor but with no real detail and, significantly, it is not a matter raised by Mr Fekry himself.
It is, in my view, to say the least remarkable and regrettable that, whilst a new statement was being prepared, not only was the application not made, but the possibility was not even raised by anyone on behalf of the defendant, including during the doubtless exchanges of correspondence on issues between the solicitors and indeed the discussions between counsel in relation to the agenda for experts. The explanation for this is that it was deliberate; it is stated
‘We did not want to delay matters if it was not going to be possible to finalise a statement’.
This is, in my judgement, quite unacceptable as a litigation tactic. It was very far from the cards on the table approach to litigation the court is entitled to expect from litigators experienced in this field. It risked prejudicing the litigation and wasting costs and was a risk taken because it was no doubt appreciated that when put on notice of any potential further evidence, the claimant may well have made a pre‑emptory application.
That delay in making the application is a relevant circumstance has been recognised by Jackson LJ in the recent case of Oak Cash and Carry Limited v British Gas Trading Limited  EWCA Civ 153. Here, the delay is inexcusable and in part a deliberate choice. In my judgment the deliberate choice to delay making an application is likely to always weigh heavily against the grant of relief.
I now turn to the specific factors set out in 3.9. Orders to date in this matter have sought to map out the progression of this complex and high value case. As a generality the more complex and demanding the case, the greater the need to follow those orders to avoid the case being derailed with significant cost consequences. The orders gave adequate timeframes. The parties extended them. They did so no doubt because it still left enough time for the matter to be properly progressed. Experts have been rescheduled. However the result is that time, even in the absence of this application, was tight. As I have already set out if the application is to be allowed, there would be, if not an ambush, a very significant undermining of the trial preparation, because time is so short.
A last minute scramble is exactly what the detailed, the careful orders of the court were designed to avoid. CPR 3.9 underlines the importance of complying with orders and, in my judgement, this application if granted would in part condone the continuance of the old lax culture of non‑compliance and delay, as typified by the approach between February and April when no urgency was exhibited, and, indeed, the deliberate step was taken of not even telling the claimant that Mr Fekry had said something which was going to dramatically alter matters. The submission that there is no real mischief here because the evidence would have emerged somewhat like the proverbial rabbit out of the hat at trial is also in line with what I view as a somewhat complacent approach to litigation. Such approach is entirely contrary to the weight of recent jurisprudence. Litigation is to be conducted fairly and efficiently and court orders are designed to ensure that that is so. It is right and proper that 3.9 reminds a judge at this stage of the importance of compliance with orders.
Of lesser significance in this case but still a factor, is that there would also be additional and unavoidable costs, if the application be granted, caused by the need to respond to the statement.
As can be seen the specific factor set out in CPR 3.9 weigh against the grant of relief.
I have, of course, considered the overarching assessment of the matters set out at paragraph 13 of Ms Hemming’s witness statement and considered proportionality. If I refuse the application, the case will proceed to a trial on partial evidence. Further, this is a case of high value and of particular importance to the defendants and to Mr Fekry. However, such matters have to be balanced against the fact that the fault for the trial being as it is or will be lies squarely and solely with the defendant. There has been a failure to properly address the requirements of proper litigation practice, to comply with orders and to properly progress the case. There has been delay, in part deliberately, and there would be a very significant impact upon the claimant’s trial preparation should she be forced into cramming a great deal work involving an expert and Counsel into a very short period of time. This on the basis that the trial date can be kept; which is something about which there must be doubt. In my judgment the weight of these considerations favour refusing the application. I should add note that as a starting point proportionality is, as set out at paragraph 40 in the Court of Appeal judgment in Durant v Financial Services Authority  EWCA Civ 746, to be seen in light of the fact that the order of the District Judge should be considered to have contained a proportionate sanction. It was there to be seen and not appealed.
Having carefully considered all of the factors, and for the reasons that I have set out as I have dealt with each one of them in turn, they weigh individually against, and cumulatively very heavily against, the grant of relief. I well recognise the consequences of relief but, in my view, it is a proportionate sanction.
I refuse the application.”
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