PERMISSION GIVEN FOR “UPDATING” WITNESS STATEMENTS: PARTIES NEED TO CONSIDER DIRECTIONS FOR UP-TO-DATE FACTUAL EVIDENCE
The judgment of Mr Justice Ritchie in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB) is an example of how consideration needs to be given to “updated” witness statements in a case where there situation is…
CLINICAL NEGLIGENCE, CONTRIBUTORY NEGLIGENCE AND PART 36: A USEFUL NOTE OF JUDGMENT
I am grateful to solicitor Bethan Parry from Browne Jacobson for sending me a note of the decision of HHJ Khan in Rix -v- Wall, the details of which are set out below. The note is interesting in that it…
YOU’VE INSTRUCTED THE WRONG EXPERT: AND THIS HAS MAJOR CONSEQUENCES
We are returning to the judgment of Mr Justice Ritchie in GKE v Gunning [2023] EWHC 332 (KB). This time to look at the judge’s observations on the claimant’s expert on liability. The judge observed that the claimant had instructed the…
SETTING ASIDE A DEFAULT JUDGMENT: HAVE COGENT EVIDENCE (AND A DRAFT DEFENCE) TO HAND: DEFENDANT’S DELAY ALONE WOULD HAVE LED TO APPLICATION BEING REFUSED IN A CLINICAL NEGLIGENCE CASE
I am grateful to Barrister Leslie Keegan for their note of the judgment of Master Cook in Buckingham -v- Elneil (15th July 2022)*. The Master refused the defendant’s application to set aside a default judgment. The defendant did not have…
PROVING THINGS 233: ASSESSING EVIDENCE AFTER 14 YEARS: THE CRUEL CONCEPT OF CAUSATION IN MEDICAL NEGLIGENCE
This blog has looked many times at issues relating to witness evidence and the judicial approach when hearing evidence of matters that happened a considerable time before trial. The difficulties are made clear in the judgment of HHJ Emma Kelly…
RELIEF FROM SANCTIONS: NOT ALL BAD REASONS FOR DEFAULT ARE EQUALLY BAD: A PARTY CANNOT ASSERT PREJUDICE BY BEING SILENT
In EXN v East Lancashire Hospitals NHS Trust & Anor [2022] EWHC 872 (QB) Mr Justice Turner allowed an appeal where a District Judge had refused to grant relief from sanctions. The judgment is particularly interesting in that it notes…
DEFENDANTS HAVE TO PAY COSTS OF ATE PREMIUM: DEEMED ORDER FOR COSTS FOLLOWING ACCEPTANCE OF PART 36 OFFER INCLUDES THE COSTS THE ATE PREMIUM
In Dance v East Kent University Hospitals NHS Foundation Trust & Ors [2022] EWHC B9 (Costs) Costs Judge Leonard considered two ingenious arguments where the defendants attempted to avoid paying the claimant’s ATE premium. This involved consideration of the deemed…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: WEBINAR 22nd MARCH 2022
Over the past few months this blog has covered several cases where clinical negligence cases have been determined, ultimately, on the accuracy of witness recollection. For example the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS…
WITNESS EVIDENCE IN CLINICAL NEGLIGENCE CASES: CRUCIAL FACTUAL FINDINGS MADE IN FAVOUR OF THE DEFENDANT
It is surprising how many clinical negligence cases rest, ultimately, on findings of fact as to what was said. An example can be seen in the judgment of Mr Justice Ritchie in Watson v Lancashire Teaching Hospitals NHS Foundation Trust…
WITNESS EVIDENCE, MEMORY AND CLINICAL NEGLIGENCE CASES: A DETAILED CONSIDERATION OF THE PRINCIPLES
We looked yesterday at the judgment of HHJ Tindal in Freeman -v- Pennine Acute Hospitals NHS Trust, a copy of which is available here. Freeman v Pennine NHS Judgment 03.12.21(without password) (1) The major part of that judgment contains a detailed…
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: THE COURT CONSIDERS WHAT WAS SAID – 17 YEARS AFTER THE EVENT
In HTR v Nottingham University Hospitals NHS Trust [2021] EWHC 3228 (QB) Mr Justice Cotter considered the issue of the reliability of witness evidence when the events being considered occurred 17 years previously. It is an example of the kind…
SURVEILLANCE EVIDENCE IN PERSONAL INJURY CASES: WEBINAR 4th NOVEMBER 2021
On the 4th November I am giving a webinar on surveillance evidence. Booking details are available here. This webinar deals with practice and procedure in relation to the production of surveillance evidence in personal injury cases and looks at: The…
LIMITATION, THE DATE OF KNOWLEDGE AND THE SECTION 33 DISCRETION: THE SINS OF THE LAWYER CANNOT NECESSARILY BE PASSED ONTO THE CLIENT
The judgment of Richard Hermer QC, sitting as a High Court Judge, in Wilkins v University Hospital North Midlands NHS Trust [2021] EWHC 2164 (QB) deals with several important elements of limitation in the context of clinical negligence. Firstly the…
DEFENDANT NOT LIABLE TO PAY THE COSTS OF DISPUTES OVER WHO SHOULD BE CLAIMANT’S LITIGATION FRIEND
In HR v Aneurin Bevan University Local Health Board [2021] EWHC 2195 (Admin) Mrs Justice Foster rejected an argument that the defendant should be liable to pay the costs incurred when there was a dispute in relation to the identity…
PROVING THINGS 213: CLINICAL NEGLIGENCE, WITNESS EVIDENCE AND MEDICAL NOTES
In Sheard -v- Cao Tri Do [2021] EWHC 2166 (QB) HHJ Robinson, sitting as a Judge of the High Court, had to consider competing witness evidence in the context of a medical negligence action. It is an example of the…
DIRECT AND VICARIOUS LIABILITY FOR SELF-EMPLOYED MEDICAL PRACTITIONERS WORKING WITHIN A PRACTICE: CLAIMANT SUCCESSFUL IN HER ARGUMENTS
I am grateful to Heather Owen from the Dental Law Partnership for sending me a copy of the decision of HHJ Harrison in Breakingbury -v- Croad (Cardiff County Court 19th April 2021), a copy of which is available here …
APPEALS, ISSUES OF FACT AND SAILING IN DIFFERENT OCEANS IN THE COURT OF APPEAL: CLINICAL NEGLIGENCE DECISION TODAY
In Hewes v West Hertfordshire Acute Hospitals NHS Trust & Ors [2020] EWCA Civ 1523 the Court of Appeal reiterated the difficulties faced by an appellant attempting to argue that the judge had erred in relation to findings of the…
COSTS ORDERED AGAINST ONE DEFENDANT WHEN CLAIMANT HAD SETTLED AGAINST ANOTHER: A DEFENDANT’S UNSUCCESSFUL APPEAL
In Oberholster v Optical Express Ltd & Anor [2020] EWHC 2635 (QB) Mr Justice Freedman dismissed a defendant’s appeal against a costs order against it. The case deals with the problematic issue of costs if a claimant settles the claim…
COVID-19 Clinical Negligence Protocol 2020
A Protocol has been introduced between SCIL, NHS Resolution and AVMA, which deals with the conduct of personal injury litigation. Details can be found here. SUMMARY The press release has a useful summary “The protocol is wide-ranging, covering: moratoriums…
THE 8TH EDITION OF THE ‘OGDEN TABLES’ AND THEIR PRACTICAL IMPACT: WEBINAR 31st JULY 2020
I am presenting a webinar on the 31st July 2020 dealing with the new Actuarial Tables. THE CONTENT The government’s new ‘Actuarial Tables’ were published on 17th July 2020. The webinar takes us through the significant changes introduced…
THE MULTIPLIERS THEY ARE A CHANGING: 8th EDITION OF THE “OGDEN TABLES”
The 17th July saw the publication of the latest (the 8th) edition of the Government Actuary’s Department “Actuarial Tables” “With explanatory notes for use in Personal Injury and Fatal Accident Cases”. This may be particularly frustrating for those who were…
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…
DEDUCTIONS FROM DAMAGES AND MITIGATION OF LOSS IN PERSONAL INJURY CASES: WEBINAR 11th AUGUST 2020 (& THEN AVAILABLE ON DEMAND)
On the 11th August 2020 I am presenting a webinar “Deductions from Damages and Mitigation of Loss”. THE WEBINAR This webinar looks at those matters that could reduce the damages a claimant receives in a personal injury case, looking…
CLINICAL NEGLIGENCE TRIAL HELD REMOTELY: AND IT WORKED WELL…
I have highlighted some cases where remote hearings have had difficulties. In Jones v Ministry of Defence [2020] EWHC 1603 (QB) the judgment indicates that the remote hearing in a clinical negligence case worked well. THE CASE The case was…
CONTRIBUTORY NEGLIGENCE IN PERSONAL INJURY AND CLINICAL NEGLIGENCE CASE: WEBINAR 7th JULY 2020
On the 7th July 2020 I am presenting a webinar on contributory negligence in personal injury actions and clinical negligence cases. CONTRIBUTORY NEGLIGENCE Contributory negligence is a common feature of personal injury litigation and (sometimes) in clinical negligence cases….
INDEMNITY COSTS ORDERED WHERE DEFENDANT ASKED FOR JSM BUT MADE NO OFFER: “A WASTE OF TIME AND MONEY”
On the Kings Chambers website there is a report, and transcript, of the decision in EAXB v. University Hospitals of Leicester NHS Trust: 4-8th November 2019 and 6th January 2020. The report is of a case where the claimant was successful…
APPLICATION FOR PRE-ACTION DISCLOSURE: COURT’S DISCRETION EXERCISED AGAINST THE APPLICANT
In Hussain v Medical Defence Union & Anor [2020] EWHC 157 (QB) Clive Sheldon QC (sitting as a High Court judge) refused an application for pre-action disclosure. This judgment makes it clear that pre-action disclosure is, ultimately, a matter of…
PROVING THINGS 172: SPECULATION BY THE DEFENDANT IS NOT EVIDENCE: A CLINICAL NEGLIGENCE CASE
The judgment of Mr Justice Turner in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) is another illustration of a party asserting something but having no evidence to support it. This time it was a defendant whose…
GIVING EVIDENCE OF MATTERS THAT HAPPENED 17 YEARS EARLIER: AN EXAMPLE IN THE CONTEXT OF CLINICAL NEGLIGENCE
This blog has looked at the issues relating to memory and witness evidence many times. Particularly the problems of people giving evidence many years after the event. An example of these difficulties can be seen in the judgment of Mrs…
WITNESS EVIDENCE AND CLINICAL NEGLIGENCE: TO WHAT EXTENT IS “HYPOTHETICAL” EVIDENCE FROM DOCTORS ADMISSIBLE?
The judgment of Mrs Justice Lambert in AB v East Lancashire Hospitals NHS Trust [2019] EWHC 3542 (QB), provides an important lessons for those who draft witness statements, particularly on behalf of defendants in clinical negligence cases. The question is…
BOOK REVIEW: CLINICAL NEGLIGENCE MADE CLEAR: NIGEL POOLE QC
Nigel Poole QC has a book published this month “Clinical Negligence Made Clear A Guide for Patients and Professionals”. I have had access to the printed and the digital copy, and I’ve had fun… “If you can’t explain it simply, you…
PROVING THINGS 165: CLAIMANT IN CLINICAL NEGLIGENCE CASE PROVES NEGLIGENCE BUT FAILS TO ESTABLISH CAUSATION
In Bell v Bedford Hospital NHS Trust [2019] EWHC 2704 (QB) the claimant established clinical negligence but failed to prove causation. THE CASE The claimant suffered a major stroke that left her with significant permanent disabilities. She claimed that…
AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?
The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence. However the claimant’s problems came largely from reliance on an…
THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY
Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case. However, as we have seen so often on this…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENT EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”
One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty. The claimant gave a misleading account of medical treatment. He was found to…
CLINICAL NEGLIGENCE AND WITNESS EVIDENCE: INFORMED CONSENT NOT GIVEN: HIGH COURT JUDGMENT TODAY
There are many posts on this blog about how, ultimately, many clinical negligence cases turn on the issue of what was said. Liability often depends on which account of a conversation the trial judge prefers. This can be seen in stark…
PROVING THINGS 80: PROVING A SUBROGATED CLAIM: HEALTH INSURANCE COSTS NOT RECOVERED IN FULL
It is not uncommon for an insurer to seek to add a claim for outlay to a claim. This is particularly the case in relation to health insurers who seek to recover outlay in a claim for damages for personal…
PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS…
CLINICAL NEGLIGENCE: RECOVERABILITY OF PREMIUMS & PROPORTIONALITY: COURT OF APPEAL DECISION TODAY
In Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941 the Court of Appeal considered the position in relation to the payment of insurance premiums in clinical negligence cases. The Court decided that it is appropriate…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
A CLINICAL NEGLIGENCE LAWYERS SURVIVAL GUIDE: MANCHESTER 5th DECEMBER 2017: “SCHADENFREUDE FOR CLINICAL NEGLIGENCE LAWYERS”
Along with Stephen Grime QC I am talking on the afternoon of the 5th December 2017 in Manchester. “A Clinical Negligence Lawyers Survival Guide” looks at avoiding substantive and procedure problems during the course of a clinical negligence action. Included…
CLINICAL NEGLIGENCE AND INSURANCE COSTS: POLICY OF £10,000 WAS BOTH REASONABLE AND PROPORTIONAL: HIGH COURT DECISION
In Mitchell v Gilling-Smith [2017] EWHC B18 (Costs) Master Leonard held that a £10,000 premium incurred in a clinical negligence case was reasonable and proportional. It also highlights the importance of a paying party bringing actual evidence to court if they…
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