Fresh evidence on appeal? Practice Points from Weller v Royal Cornwall Hospitals NHS Trust [2021] EWHC 2332 (QB)

September 28, 2021

Christian Taylor

1. In the very recent decision of Martin Spencer J in Weller v Royal Cornwall Hospitals NHS Trust [2021] EWHC 2332 (QB), the Defendant successfully appealed a case management decision refusing it permission to rely upon the evidence of a Neuropsychologist in relation to the cause of the Claimant’s cognitive deficits.

2. At the first instance hearing:

i. The Claimant’s solicitor had obtained a letter from the instructed Neurologist attesting to why further evidence from a Neuropsychologist was not required.

ii. The Defendant’s solicitor had spoken to her instructed Neurologist who had told the solicitor that a Neuropsychologist was required. No letter had been obtained from the expert Neurologist to that effect.

3. The Deputy Master refused the Defendant permission finding that there was no reasonable requirement for neuropsychology evidence.

4. In the Appeal the Defendant adduced fresh evidence, in the form of two letters, one from the Neurologist, Professor Wills, and one from the proposed Neuropsychologist, Dr Baker, to the effect that neuropsychological evidence would delineate which cognitive deficits were attributable to the original stroke and which were due to the vascular dementia or a depressive illness.

5. The judge found that this evidence was adduced “at the fifty-ninth minute of the eleventh hour” of the appeal.

6. The judge found that:

i. “where experts as reputable and with such expertise as Professor Wills and Dr Baker tell the court that a neuropsychological opinion is required in order for the court properly to assess causation in this case, a court would with some reluctance reject such evidence as a case management decision.” [para 22] emphasis added.

The judge continued:

ii. “Clearly I am now in a much better position to assess the need for that evidence than Deputy Master Fine was, and I have no doubt that the decision she made was correct at that time, on the basis of the information which she had. However, having now seen the letters from Professor Wills and Dr Baker, and understanding better from Miss Jones the context in which the neuropsychological evidence is required, I consider that the defendant should be afforded the facility to adduce such evidence.” [para 22] Emphasis added.

7. He consequently overturned the first instance decision, albeit ordering costs against the Defendant, notwithstanding its success in its appeal.

8. PRACTICE POINTS:

i. Any party applying for permission to appeal to overturn a case management decision made within the judge’s discretion must cross a high threshold (Royal & Sun Alliance Insurance Plc v T&N Limited [2002] EWCA Civ 1964.]

ii. The general rule on appeals is that pursuant to CPR 51.21(2)(b) the appeal court will not receive “evidence which was not before the lower court”, unless it orders otherwise.

• This is a case where the High Court ordered otherwise in admitting the “fresh evidence” of two letters, one from Professor Wills, Neurologist and one from Dr Baker, Neuropsychologist.
• The fresh evidence was adduced by the Defendant very late in the appeal. It was not put before the judge at first instance, albeit the substance of the evidence (in the form of a communication between the Defendant’s solicitor and expert) was available and attested to by the Defendant’s solicitor at the time of the first hearing.
• The traditional test for an appeal court admitting fresh evidence on appeal was set out by the Court of Appeal in the case of Ladd v Marshall [1954] WLR 1489, CA. Three special conditions had to be satisfied, the first of which was that “the evidence could not have been obtained with reasonable diligence for use at the trial”. Equating the concept of trial, with that of the first instance case management hearing, it seems plain that this first condition was not satisfied given that the substance of what became the fresh evidence, was relayed by the Defendant’s solicitor, at least in part, to Deputy Master Fine.
• Although not expressly stated in his judgment, it would appear that Martin Spencer J was giving effect to the overriding objective of “doing justice”, in allowing in the fresh evidence at all, and particularly given it was served so late in the appeal process, perhaps having in mind the guidance of Richards LJ in Sharab v Al-Said [2009] EWCA Civ 353 at at [52]:
  “The court must of course seek to give effect to the overriding objective of doing justice, but in that respect the pre-CPR cases, including Ladd v Marshall, remain of relevance and indeed of powerful persuasive authority”.
• It seems that this decision is an example of a High Court Judge accepting fresh evidence in an appeal in order to do justice between the parties and further the overriding objective even in circumstances where one of the 3 conditions in Ladd v Marshall are not satisfied. In this context it is probably important to note that the Claimant’s claim is pleaded in excess of £1million.

iii. A solicitor merely telling the Court what an expert had said to her was not putting the evidence before the Court in the “proper way” [para 14]. Similarly barristers whose instructions include a note of a conversation that the solicitor has had with the expert find themselves in a similar predicament. There needs to be direct evidence from the expert themselves either in the form of a letter, or a recommendation in a report that has been disclosed. Had the Defendant got their house in proper order for the first instance hearing, it seems likely that permission for neuropsychological evidence would have been granted and the Defendant would have avoided the need to spend [waste] thousands of pounds [of taxpayers’ money] pursuing the appeal.

iv. The test under CPR 35.1 that the evidence must be reasonably required was satisfied notwithstanding the judge expressing the view that further neuropsychological tests “will not in the end [provide] a lot of assistance” to the examining neuropsychologist given the progress of the Claimant’s dementia and his likely inability to complete the tests. The judge clearly felt and expressed the view that the opinion of “eminent” medical experts in determining, as a medical issue, what sort of evidence was required, was critical and in fact probably decisive in the present case, to determining the legal issue pursuant to CPR 35.1 of which reports were reasonably required.

v. The Judge’s concluding remarks included the view that because it was a substantial claim for damages the defendant should be entitled to defend itself “to the best of its ability” and if it considered it needed neuropsychological evidence “then I do not consider it right for the court to refuse that facility where eminent experts are explaining to the court how and why such evidence will assist the court.”

• It is to be hoped that every judge at CCMC when considering which disciplines of experts are reasonably required, will consider the rights of each party to advance their respective claims to the “best of their ability”, particularly bearing in mind that in a clinical negligence context, the Claimants are almost always entirely innocent victims whose lives have been significantly adversely affected. On a practical level, they have also paid inordinate issue fees for the privilege of starting a claim and having a judge hear and manage their claim.
• The ideal is that by the time of the CCMC, the Claimant has already obtained and served reports from experts in all disciplines the Claimant requires, leaving only some further updating reports to be obtained at the conclusion of future treatment. For that to be achieved an active pre-issue case plan needs to have been formulated and implemented.
• At the CCMC, particularly in cases where there is a known disagreement between the parties as to which disciplines of experts are required, a letter from the experts who have already been instructed, explaining the rationale for another discipline of expertise, is likely to be highly persuasive. It seems likely that Claimants who will already know which experts they have instructed, and will have already received reports from them will be in a more favourable position in this regard than Defendants who have very often not yet identified their medical experts.