EXPERT EVIDENCE: THE DANGERS OF JUMPING THE GUN: JUDGES DO NOT PASSIVELY ACQUIRE AN ENCYCLOPEDIC KNOWLEDGE OF THE CONTENTS OF BUNDLES BY OSMOSIS

There is so much for litigators to learn from the judgment of Master Thornett in Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB) that I considered a series of blog posts.  There are a number of central points: (1) The need for clarity in making an application; (2) The  need for succinct case summaries and skeletons; (3) the danger of instructing an expert, and asking other experts to comment on that evidence, prior to obtaining permission from the court.   The fourth point lies in the  misplaced assumption that a judge will automatically (and perhaps magically) acquire a detailed knowledge of a case just because a bundle has been delivered.

“Litigant’s should not assume that judges passively acquire an encyclopaedic knowledge of hearing bundles by some form of osmosis because materials appear in the hearing bundle as delivered”

THE CASE

The claimant brought an action to rely on neurosurgical evidence in a personal in a clinical negligence case, and also to revise the costs budget.

THE APPLICATION: PROCEDURAL ISSUES

The Master commented on the fact that there had been two hearings of the claimant’s application.
The need for two hearings and a reserved judgment in such an Application  is unusual. Typically, Applications are heard and decided at the same hearing and very often in the context of a Case Management Conference dealing with a variety of directions. Such an exercise occurs on virtually a daily basis within the Masters’ corridor.
Unfortunately, this case did not proceed in this way. The experience from it illustrates the importance of the following points to the party applying.
  1. 1     Correctly identifying any revised decision or relief they pursue by the time of the hearing rather than as sought when the Application was drafted. Any change of position or development in the Application in the period between issue and the hearing needs to be made very clear both to the Respondent as soon as possible preceding the hearing and to the court at the very commencement of the Application.
  2. 2     Drawing to the court’s attention to the relevant evidence relied upon. Litigant’s should not assume that judges passively acquire an encyclopaedic knowledge of hearing bundles by some form of osmosis because materials appear in the hearing bundle as delivered. Particularly in the Masters’ List, there is no allocated reading time for applications unless, by way of prior agreement and direction by the Master, reading time has been incorporated into the Master’s diary. This observation is relevant to any hearing but even more so one where a party’s position or evidence has changed since the date when the Application was drafted. Plainly, a busy judge is entitled first and foremost to look to the Application for an introduction to the case and then to the Applicant’s advocate at the hearing for guidance and assistance.
  3. 3     Providing succinct Case Summaries or skeleton arguments as set out the most relevant information as focuses upon the Application as it stands at the date of the hearing. Tracts of information repeating the pleadings or narrating factual or technical issues in the case by way of general introduction are rarely helpful. Conversely, a review of the parties’ most up to date respective arguments in respect of the hearing in question and an introduction to what documents, if time permits, are the more essential to read in advance of the hearing is very helpful.

THE DANGERS OF TAKING STEPS IN ADVANCE OF PERMISSION

  1. This case also illustrates how a party that seeks to implement steps in advance of obtaining permission from the court clearly takes a risk that they may not be successful on their application. The greater a party’s presumptive preparation, therefore, the more complex, time consuming and expensive it may ultimately prove for that party subsequently to reverse matters. Given such risk, at least to canvass the proposed course of action to an opponent would seem good practice, whether or not it is realistically anticipated there might be agreement. On any view, it is utterly crucial to be entirely clear and transparent to the court from the outset of the hearing as to what steps have been taken on a presumptive basis.

THE PROCEDURAL HISTORY: THE FIRST HEARING

  1. The date for that extension (as at 4 July 2018) was proposed to be 17 September 2018. The fact the first hearing of this application on 18 October 2018 was after this date is not of itself remarkable, in that hearings are sometimes unavoidably listed on a date after the sequence of directions proposed in the Order. For reasons that follow, in this case the date in fact had a far greater significance and consequence.
  2. The hearing of Claimant’s application was listed on 18 October 2018 for 30 minutes at 12.30pm. The hearing in fact lasted for over an hour and I sat into lunchtime. Save for the Schedule of Loss dated 14.09.18, the hearing bundle did not include the pleadings. It included the Application, two witness statements of the Claimant’s solicitor Mr Read in support, five medical reports from experts for whom the Claimant had permission and had by then been disclosed, the two reports of Professor Marks, the Claimant’s 24.03.18 witness statement and materials in support of proposed adjustments to previous budgets. It did not include the Defendant’s witness statement from Ms Fagin and so the Defendant was obliged to provide that to the court separately.
  3. At the commencement of the hearing, upon invitation by Mr Haines, Counsel for the Claimant, I indicated that I had read the Application, the supporting witness statements of Ms Read, the witness statement from the Defendant’s Solicitor Ms Fagin in reply and the two reports of Professor Marks as relevant to the Application. I made expressly clear that I had not otherwise read the bundle in detail. I made clear that that I did not have an “encyclopaedic knowledge” of the case in response to Mr Haines opening the Application with remarks that assumed I had a close knowledge of all of the evidence the Claimant relied upon.
  4. Early into the hearing, I invited Mr Haines to explain what purpose could now be identified for having permission to rely upon Professor Marks. I questioned whether matters had not moved on from the position contemplated at the time the Application was first drafted and so had not the purpose as originally intended fallen away. Drawing upon the stance taken in Ms Read’s second statement, Mr Haines sought to illustrate that because the proposed evidence excluded certain diagnoses, the evidence of Professor Marks would enable the existing experts to focus further from the viewpoint of their own particular disciplines. I put to Mr Haines that this was a different sort of application to that predicated by Ms Reed in her first statement and asked whether this revised approach, that is one that conceded the Claimant no longer sought to rely upon neurosurgical evidence to prove symptoms referable to the negligent surgery but instead to exclude them, had been clearly stated and the revised intention explored with the Defendant before proceeding to this as an opposed hearing. I was not taken to any correspondence by Mr Haines in this regard.
  5. Having heard from the Defendant, who maintained its position that there simply was no place or call for neurosurgical evidence, I remained unconvinced that formal permission for Professor Marks was required and so there was no justification in revising the parties’ budgets. I suggested that it might be more proportionate in costs and progressive efficient to put to the Defendant in correspondence whether it agreed with the propositions as to exclusion as the Claimant was by now able to set out in principle. Until the Defendant’s position was known, again in principle, it was premature to decide whether Part 35 permission to rely upon neurosurgical evidence was required even if now for a different reason to that originally contemplated. Professor Mark’s reports could therefore still be a discussion point between lawyers without having first to formally grant the Claimant permission to rely upon Professor Marks under Part 35.
  6. Mr Haines described it as potentially “disastrous” to have a report “doing the rounds” but for which permission had not been given. Nonetheless, in response to my observation that the distillation of the proposed new evidence was entirely capable of encapsulation by those representing the Claimant and considered by those representing the Defendant, Mr Haines accepted this could be attempted. I expressed the view that it was not implicit that such exercise unavoidably had to involve consultation with either side’s experts, despite Mr Haines maintaining that he needed the written response of his experts. It was, in my view, no different to many cases where those representing can discuss the application or not of proposed expert evidence ; as happens in many cases without there being a report as already prepared to rely upon.
  7. The hearing therefore adjourned on the understanding there would be a process of discussion and proposition between the parties to see if a cheaper and more concise application of this newly emerged evidence, if any, could be achieved rather than following the Claimant’s proposals for formal Part 35 permission with its consequential costs implications.

THE SECOND HEARING

At the second hearing it became clear that the claimant had not waited for permission to be granted. The expert report had been disclosed to the claimant’s experts and they had commente don it.

    1. From this, I am quite clear that at no stage during the first hearing did the Claimant through her counsel Mr Haines ever make clear that she had, in fact, already put Professor Mark’s reports to her existing experts. Therefore, this was no longer an application for permission to rely upon reports that, if so permitted, would then inform the existing experts. Quite to the contrary, the Claimant had already done this and the true application was to seek retrospective permission for the Claimant having done so. To adopt Mr Haines’ expression, Professor Marks’ reports had in fact already “done the rounds“.
    2. The second hearing on 15 November 2018 was listed for 90 minutes. Despite this longer time estimate, it similarly was not opened or pursued by the Claimant on, as I find should be so described, the correct basis.
The Claimant had in the interim period served upon the Defendant a sequence of written propositions essentially drawing upon Ms Read’s summary of Professor Mark’s reports as appear in her second statement. In response, the Defendant had either agreed with obviously uncontentious points [for example “There are no radiological findings that explain the Claimant’s right sided leg symptoms” or “The Claimant should give credit within her Schedule of Loss for any loss of earnings or care and assistance requirement caused by (future surgical removal of the tumour)”] or otherwise replied that the Claimant’s propositions were not unreasonable but ultimately speculative. This was the Defendant’s response to the Claimant’s “credit point” about the Claimant potentially needing future surgery to the nerve sheath and to what extent it might reduce the Claimant’s future loss claim.
Of perhaps more direct relevance to the existing medical disciplines, the proposition that constitutional degenerative back pain had been exacerbated by sequalae from the breach of duty (namely weight gain and loss of abdominal strength), the Defendant had replied that it had yet to receive its Pain Management evidence. Similarly, to the proposition that the right leg symptoms “are likely to be related to her chronic abdominal pain compounded by psychiatric issues” the Defendant replied it was unable to either agree or disagree because it had yet to receive either Pain Management or Psychiatric evidence.
None of these replies in my view supports an argument of there still being a need to introduce Professor Mark’s evidence, even if so as to establish exclusion and to assist the existing disciplines.
  1. Again without reference to what the Claimant’s permitted medical experts were known already to have said in response to Professor Mark’s reports, at the second hearing Mr Haines again sought to take me through the background how the neurosurgical reports had first been requested by Dr Gardner-Thorpe and the extent to which Professor Marks now enabled certain points to be excluded (the right leg symptoms) but supported a case that some of her symptoms could be the consequence of the surgery (e.g. aggravation of constitutional symptoms owing to increased weight). Mr Haines described the Defendant’s responses to the propositions as equivocal and so, in essentially still requiring the Claimant to prove matters, justified the Claimant still pursuing her application to rely upon Professor Marks.
  2. The feature of the Claimant having already put Professor Mark’s reports to her experts in fact only emerged during the submissions from Miss Elliott, Counsel for the Defendant, who made the point that even when Professor Mark’s reports had been put to the Claimant’s experts, it can be seen that it had achieved very little in response.
  3. I gave Mr Haines what, by then, was the remaining 10-15 minutes of the hearing to specifically address what the Claimant’s experts had had to say. In short, to develop the substance of what I am quite satisfied should have been the focus of the application from the very commencement of the first hearing.
  4. Although noting what Mr Haines had to say in concluding the application, I have felt obliged to read through these reports independently owing to the short amount of hearing time Mr Haines had caused to be left.

THE CLAIMANT HAD ALREADY DISCLOSED THE MEDICAL REPORT TO ITS OWN EXPERTS AND OBTAINED COMMENTS UPON IT

The Master commented.

  1. The process by which the Claimant has achieved comment from her existing medical experts can be seen to be somewhat erratic and inconsistent at least in terms of final presentation. Be that as it may, on the basis that the exercise having been chosen and implemented unilaterally by the Claimant and then served upon the Defendant as if perfecting a previous direction of the court, I take the view I am entitled to proceed to consider these reports directly and assess the benefit of what response it has produced. This is distinctly different from more abstract or hypothetical approach the Claimant adopted, for whatever reason, for most of the two hearings.

THE RESULT

The  claimant’s application was dismissed. The Master found that there was no place for permitting the expert evidence sought by the claimant.

” it follows from this decision that :
1     The references to Professor Marks reports must be excised from the Claimant’s current experts reports and those reports re-served, at the expense of the Claimant;
2     Extensions of time are appropriate to enable the Defendant to comply with the previous directions Order;
3     Any broader or more fundamental consequential directions to facilitate those previously ordered could arise and need to be considered;
4     The Claimant should pay the costs of and occasioned by her application as extends to two hearings, the second of which was quite unnecessary.”