CORONAVIRUS LAW: COVID IS NOT GOING TO BE USED AS A REASON TO ALLOW A LATE AMENDMENT TO A DEFENCE

In the judgment today in Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB) Mrs Justice Lambert considered an argument that the Coronavirus epidemic could play a part in the defendant’s application to amend its defence.

THE CASE

The claimant brings an action for clinical negligence.  The defendant admitted some negligence but denies causation. At a CCMC the claimant elected to proceed to a liability only trial on the basis of the defendant’s admitted breaches.   The trial is listed in mid July.

THE PROPOSED AMENDMENT

On the 14th April 2020 the defendant stated it wanted to amend its defence. This was not accepted by the claimant and the defendant made an application to amend on the 5th May 2020.

THE JUDGE’S REJECTION OF THE DEFENDANT’S APPLICATION

The judge set out the principles governing amendment in some detail, in particular those that related to “very late” applications.  Coronavirus was mentioned as a factor by the defendant.

1. I have no doubt that if I were to allow the amendment then fairness to the Claimant would require me to vacate the trial (which was fixed as long ago as 3 October 2019) in order that the allegations of breach of duty which the Claimant elected not to pursue following discussion at the August 2019 case management conference could be resurrected and pursued. Directing the spotlight upon the cancellation of the appointment of 19 June 2012, raises acutely the issue of whether it was a breach of duty to fail to inform the Claimant’s mother that the scan was time sensitive and, if so, what action the Claimant’s mother would have taken in the light of that information. This may require a supplemental statement from the Claimant’s mother which on its own would not threaten the trial date. However, more importantly, if these allegations of breach were to be pursued, then expert evidence from a paediatrician/neonatologist to address the standard of the care provided by Dr Sigdel would be required. Such evidence is not currently available and it would be unrealistic to suggest that such evidence could be obtained, put in a form suitable for disclosure and exchanged before trial.

2. Ms Wolstenholme makes two further linked submissions, both of which I can deal with swiftly. Her first point is that the trial may be vacated in any event due to the pandemic so there would be no injustice to my granting the amendment and breaking the trial fixture. However, if in due course, either or both parties were to seek an adjournment, then an application to vacate the trial should be made in the usual way, supported by evidence. Neither she, nor I, can pre-judge the outcome of that application. All that I can say is that it does not follow inevitably that such an application will succeed. It will depend upon the impact of the pandemic upon the availability of witnesses and/or whether the Court accepts that justice could not be done via a remote hearing. Her second point is that if the trial had to be vacated then any adjournment need only be short. However, whilst from the parties’ perspective it may be that the additional evidence can be obtained reasonably quickly (I do not know) and the pleadings regularised, it would be naïve to think that the Court would be able to accommodate the adjourned trial shortly thereafter. Even in normal conditions the listing may be some months after the trial is ready and the effect of the pandemic is that there is bound to be some backlog. What is clear is that the need to re-list this trial will take court time away from other business.

3. It follows that this application must be categorised as a “very late application.” As such, the balance is loaded heavily against the grant of permission, even before I turn to consider the issue of the explanation for the timing of the application.

The judge then went on to consider the reasons put forward for the late application. She did not permit the defendant’s application.