CLAIMANT NOT ALLOWED TO AMEND CLAIM, OR INTRODUCE NEW EXPERT, WHERE APPLICATION TO ADJOURN BECAUSE OF COVID ALLOWED

In Ludlow -v- Buckinghamshire Healthcare NHS Trust & BMI Healthcare Ltd [2020] EWHC 1720 (QB) Mr Justice Jay allowed an application for an adjournment on the grounds that a trial could not take place remotely.  However, he refused the claimant’s application to amend the Particulars of Claim and to rely on a new expert.  The claimant was not allowed to take advantage of the fact that an adjournment was being granted.   The issue in relation to the new expert (to replace one who had unfortunately died) was decided on the basis of the Denton criteria.

 

THE CASE: THE APPLICATION FOR AN ADJOURNMENT

The hearing was heard on 6th May 2020. A seven day clinical negligence trial was listed to start on the 11th May. On the 30th April the claimant filed an application to adjourn the trial. The parties were in agreement that the trial could not proceed.  The application was heard on the 6th May 2020.

” The grounds of the application are that justice would not best be served by any form of remote hearing, and a trial at this juncture would place an unnecessary strain on NHS clinicians and resources. The first defendant’s position in a nutshell is that it reluctantly considered view of all three parties. I would place greater emphasis on the fact that a trial at this point would test an already overly-stressed NHS. I will come back to the question of when the trial might be relisted.”

THE CLAIMANT’S APPLICATION TO AMEND

The claimant used the opportunity to apply for permission to amend the Particulars of Claim. This was refused by the judge.

“In my judgment, the application to amend is extremely late; no good reason has been advanced for the delay; and the claimant is not entitled to benefit from the adjournment of the trial next week for reasons unconnected with the application.”

THE EXPERT EVIDENCE

A further issue arose because the occupational therapy instructed by the claimant had died. The claimant was seeking to rely on a report from a newly instructed expert.  This involved a reduction in the sums claimed.  The application was refused by the judge.

41 I move on to consider the position in relation to the expert evidence, and here we are concerned with a report in the discipline of nursing and Occupational Therapy. The position here is that the claimant’s original expert was Miss Anne Harris, who prepared a report I believe in 2017 following a visit to, and possible examination of, the claimant in that year. It was always the claimant’s intention to obtain further evidence from Miss Harris before trial so that she might be in a position to update the court on these matters. But sadly, Miss Harris passed away in December 2019.”
42 The sequence of events thereafter is set out in the witness statement of Miss Leach, the claimant’s solicitor, which was filed only this morning. Put broadly, Miss Leach returned from Australia on I believe 12 January this year, and there was some understandable delay whilst she caught up with her emails on all her various cases. It was after a period of time, she describes it in terms of a number of weeks, that she was made aware that Miss Harris had passed away. She then made enquiry of the firm who employed or engaged Miss Harris, as to whether another expert could be instructed in the circumstances, and there was a delay in relation to that.
43 Miss Amy Wentworth-Edwards was identifie  as a possible expert in March, and she had a conversation with the claimant in early April of this year; she was not able to see her in the light of the circumstances of the current pandemic. Her report was available I think in a draft or advance draft on 7 April, which was one day before a joint settlement meeting on 8 April. However, it was not finalised until later in the month, and it was not finally disclosed to the defendants until 29 April.
44 In the meantime, on 19 February, a schedule was served on behalf of the claimant, and a Civil Evidence Act notice in relation to Anne Harris’s evidence. So, as far as the defendants were concerned, the claimant was continuing to rely on her evidence, and was not minded to instruct anyone else. Indeed, the first inkling that the defendants had that there was someone else did not come until 29 April. In my view there was every opportunity for the claimant’s solicitors to update the defendants of the position, whether at the joint settlement meeting or by correspondence of the position, so that they could take appropriate steps to address the new position.
45 So, the position is that, looking at the overall circumstances of the case, on the one hand the claimant has an expert who has died but who has at the very least seen the claimant, admittedly some time ago now. On the other hand, she has a living expert, who has not seen
the claimant.
46 I am also asked too to bear in mind, and this was a point which was pressed by Mr Cox, the original court order was for sequential exchange of quantum evidence and, in the circumstances which have attained, the sequence of events has been reversed by what the claimant seeks to do.
47 I agree with Mr Cox that the Denton criteria have got to be applied to this application to adduce the evidence of Miss Amy Wentworth-Edwards, presumably in substitution for the evidence of the deceased Anne Harris. In my judgment, the breach is serious; there really is no good reason for it; and in all the circumstances of the case, although the claimant does suffer some forensic disadvantage in that she does not have, as it were, a live expert to support her claim on quantum, and it is a significant claim in relation to OT and nursing, she is not as prejudiced as she might have been in the circumstances I have outlined.
48 I have pointed out the difficulties which exist in relation to Miss Wentworth-Edwards’s evidence, and I cannot proceed on the basis that given the delay which is likely to accrue now, what the claimant would seek to do is utilise the intervening period for her advantage, and seek to instruct Miss Wentworth-Edwards to carry out an examination of the claimant at her home, or at the very least to speak to her face to face.
49 But applying all the Denton criteria in these circumstances, I am driven to the conclusion that I must refuse the application that the claimant advances, to rely on the evidence of Miss Amy Wentworth-Edwards. She can continue to rely on the evidence of Anne Harris, pursuant to the Civil Evidence Act notice, and she can continue to rely on her existing schedule. The fact that it claims slightly more than would have been claimed under her proposed substitute schedule is to my mind neither here nor there.