DEFENDANT’S APPLICATION TO VACATE TRIAL DATE, AND FOR A FOUR YEAR STAY, REFUSED: JUSTICE IS ACHIEVED BY THE TRIAL DATE BEING MET

In Benford (A Child) v East And North Hertfordshire NHS Trust (Rev1) [2022] EWHC 3263 (KB) Mr Justice Ritchie refused the defendant’s application for an adjournment of a trial date. The defendant argued that medical uncertainty meant that it was not possible to come to clear conclusions. The judge held that the trial should proceed.

Making awards for damages for future loss is an exercise based upon a comparison between an estimate of what the “but for” position would have been and what the “future actual” position will be. Both of those are crystal balls through which the judge has to look with the guidance of experts. Certainty is admiral but is often not achievable. Uncertainty is ever present in such assessments. The Courts are used to assessing probabilities.”

THE CASE

The claimant brings an action for damages for clinical negligence having suffered serious injuries during childbirth.  Liability is admitted. The trial date is set for May 2023.  The defendant, in an application dated 22nd October 2022, applied for an order that the trial date be vacated, that the claim be stayed for four years and the the court then make an order for a further CCMC.

THE JUDGMENT ON THE DEFENDANT’S APPLICATION

The defendant’s argument was that there was such uncertainty in relation to prognosis that it was not practicable for the trial to go ahead.  The judge considered the legal principles as applied to the facts of this case. He held that the trial should proceed.

 

Applying the law to the facts
  1. Taking each of the relevant factors in turn.
  1. The overriding objective of achieving justice between the parties in my judgment is achieved by a trial taking place in May 2023. The burden of proof is on the Claimant in relation to general damages, past loss and expense and future loss and expense. If on the balance of probabilities, as a result of the expert evidence, the Claimant cannot prove any particular future head of loss or part thereof, due to uncertainty, that head of loss or part thereof will not be awarded. If it can be proven with some uncertainty over the future details that can be dealt with by discounting or step changes in the award. Therefore the uncertainties in the evidence called by the Claimant are probably a disadvantage to the Claimant or at least mainly to the Claimant. In relation to expert evidence called by the Defendant the Court has seen none of it. If, as is asserted in letters, some of which have no part 35 statements attached to them, the Defendant’s experts truly cannot provide a prognosis in the way that the Claimant’s experts have in the key relevant fields, then they will need to express the appropriate range of views and those views may be accepted by the trial judge.  But I do not see how that is a substantial disadvantage to the Defendant.  Making awards for damages for future loss is an exercise based upon a comparison between an estimate of what the “but for” position would have been and what the “future actual” position will be. Both of those are crystal balls through which the judge has to look with the guidance of experts. Certainty is admiral but is often not achievable. Uncertainty is ever present in such assessments. The Courts are used to assessing probabilities.
  1. As to the prejudice that is asserted by the Defendant if the trial goes ahead. The way that the Defendant put this in submissions was that it will be either the same or similar uncertainty or prejudice for both the Claimant and the Defendant. Whatever evidence is eventually served by the Defendant the uncertainties on key matters that remain after the relevant expert prognoses in relation to epilepsy, behaviour, development and swallowing (the assessment on hearing is already complete) are unlikely to lead to any greater prejudice on behalf of the Defendant than on behalf of the Claimant. What is really being said is the estimate of the likely future loss will be more speculative if carried out in May 2023 than it would be if carried out four years later.  However all future loss is speculative and the Defendant’s own experts write that assessment at the age of 10 is no guarantee of certainty. Indeed some of them suggest assessment at the ages of 13 or 15. Comparison with the case of Cook v Cook is instructive but not determinative in my judgment.  In that case the applicant argued that assessment at the age of 10 was going to be too speculative.
  1. Whether the Claimant will suffer prejudice: It is clear to me from the witness statement from the litigation friend that the litigation process is creating stress and anxiety for the family. She considers she is living in a “goldfish bowl” being assessed by experts month after month. Factually she is correct. There are 12 experts on each side, therefore 24 experts who have assessed the Claimant in the last year. If the trial is adjourned at least 24 further assessments are likely and perhaps more if events change and any expert wishes to have another assessment. These appear to me to be relevant factors. The more so in the light of the agreement between the parties to hold the trial in 2023, such agreement having been made in September 2021. Since that time the Claimant’s mother has been working towards the case being over by mid next year. Much work has been done. Witness statements have prepared.  Expert assessments and reports have been completed and served.
  1. The need for finality in litigation. The litigation friend seeks finality so that she can get back to caring for the Claimant and her other children and get on with her family life. She also seeks certainty of result rather than living with uncertainty.  I have set out above reference to the principle of finality which is well acknowledged in previous case law. The need for finality in litigation weighs toward the trial date not being adjourned once it has been set by the Court.
  1. The need for justice to be done without unreasonable delay. It is apparent from the submissions made by senior counsel in this case that, as a result of the duty of candour and more modern practises in the NHS in the last 10 years or so, cases involving severe brain injury are brought to the attention of parents earlier. Not least as a result of serious incident reports carried out internally by NHS Trusts. This has led to cases being issued earlier and settled earlier and trials on quantum of seriously brain injured children are being heard at a younger age. This does create a practical difficulty which is properly highlighted by the expert evidence put before this court. However, in my judgment I should take into account the need for justice to be done without unreasonable delay on behalf of insurance companies, the NHS Legal Authority, the tax payer and on behalf of Claimants. 
  1. When looking at the conduct of the parties and in particular whether the Defendant has complied with the Court’s directions I take into account that the parties, by consent, agreed in September 2021 that the trial would take place in early 2023 and they also agreed a set of directions for exchange of documents, lay witness evidence and 12 expert reports on either side. That was the time to negotiate the proper date for trial dependent on the age of the Claimant and the medical evidence, such as it was, of her condition.  The experienced personal injury lawyers instructed in this case will have handled such claims before. A year after that consent order the Defendant has raised this application to vacate the trial, in effect seeking to break their own agreement. The application was put on the basis that it could not be made until after the Claimant’s experts’ reports were served and read. However the directions made in September 2021 were for the Defendant’s evidence to be served in July 2022. For the evidence to be served on time the experts would have had to carry out assessments of the Claimant between the date of the directions order and June 2022 at the latest.  I work on the basis that those assessments should have been carried out either in late 2021 or early to mid 2022 with draft reports produced by June 2022 which were only awaiting site of the Claimant’s reports for completion. The fact that the Claimant’s reports were delayed until July 2022 would only delay the finalisation of the Defendant’s expert’s reports. I do not see why that would delay the experts in providing their draft report.  In any event Dr Kumar saw the Claimant long before the directions were made by consent.   I do not accept the explanation given as the cause of the delay in making the application. It seems to me that the application to adjourn the trial, if it was based solely on the Defendant’s experts’ reports, could have been made months earlier and in any event should have been raised in September 2021. Whilst this is not a deciding factor it is a relevant factor. As for the Claimant’s conduct, she is not in breach of any of the directions and whilst her expert evidence has been provided a little later than first ordered, it was so provided with consent orders made by the Court.
  1. As to the choices made by the parties on the date of trial, I have set out above that the parties agreed to the trial in 2023 one year and two months ago. When parties make serious choices like this in very high value brain injury litigation it seems to me that the general rule should be that they should stick to their choices.
  1. As to the reasonable and fair allocation of the Court’s resources, putting the trial back will increase the use of the Court’s resources in this action, including at least one case management conference and perhaps other applications in relation to interim payments. Whilst this is not the heaviest factor in a very high value claim it is a factor.
  1. Finally I take into account the wishes of the parents who carry the burden of caring for the Claimant and running the litigation and being present at each assessment by experts. It seems to me that this is not only a relevant factor but a factor of some weight. Parents of seriously brain injured children who bring claims for which liability is admitted have, to some extent, control over the progress of the claim. Some wish for the claims to be delayed until the result is more likely to be more certain. Some wait to issue when the child is 18 or nearly 21. Others, like these parents, wish for the claim to be over early. It seems to me that that personal choice over when to issue and when to go to trial is of importance.  When a trial date has been agreed between the parties, as it was in this case, should be respected and adhered to.
  1. In addition I take into account that severe brain injury cases for children have been assessed for 6 year olds many times before, for instance in Whiten v St George’s [2011] EWHC 2066, Swift J did so.
Conclusions
  1. I consider that after balancing all of the factors set out above the trial date should stand and so I dismiss the Defendant’s application.  I do not consider that the balance of prejudice favours the Defendant. Nor do I consider that the trial will result in unfairness for the asserted reasons. 
  1. As to alternatives to adjournment, I consider that a tight new set of directions should be agreed to facilitate the evidence and the trial in May 2023 and to encourage ADR.  I will extend the time for service of the Defendant’s expert reports and the counter schedule to 14 January 2023.
  1. As for the directions thereafter I invite the parties to agree them and submit them to my clerk in writing by 4pm on Tuesday 19th December.  In default two sets of suggested directions should be put before me via my clerk by 4pm on Tuesday 20th December 2022 if the parties so choose or I will hear submissions on the directions on Wednesday 21st December in the morning at 10.30 am listed for 1 hour.
  1. The Defendant shall draw up the order relating solely to the application and submit it to the court by 10 am on Tuesday 20th December 2022 in Word format.
  1. The costs of the application shall be paid by the Defendant on the standard basis to be summarily assessed (by me) on written submission on the costs schedules to be submitted by 4pm on 20 December 2022, if not agreed.