Calden v Dr Nunn & Partners

This is an appeal by the defendants against an order made by Judge Grenfell sitting as a High Court judge at a pre-trial review at Leeds on 20 ^th January 2003 when he directed that the issues of breach of duty and causation in this clinical negligence case should be listed for trial during a trial window from 5 ^th to 23 ^rd May 2003 and refused the defendants’ application to rely on the histopathology evidence of Professor Stamp. The defendants maintain that the judge ought not to have fixed the trial window before considering whether to permit the defendants to rely on Professor Stamp’s evidence, and that his refusal to allow this evidence to be admitted was clearly wrong. The judge himself granted permission to appeal against that part of his order:

The claimant John Calden is the administrator of the estate of his wife Amanda who died of cancer at the age of 29 on 22 ^nd December 1997. This High Court action was brought in the Kingston-upon-Hull District Registry. By his Particulars of Claim dated 17 ^th August 2000 the claimant asserts that Dr Fraser, his wife’s GP, negligently failed to refer her for “prompt specialist opinion” when he examined her on 25 ^th January 1996. At that time she was complaining of 2-3 weeks of discomfort in the upper outer quadrant of her right breast.

It appears that Dr Fraser found lumpiness in her breast, but no discrete lump, and he advised her to return in two weeks if her condition did not improve. She did not return within that period, and although she was to visit her GP’s surgery seven times between March and October 1996 she made no further complaint about her right breast. On 13 ^th October 1996 another GP in the same practice examined her, detected stringiness or lumpiness in her breast, and referred her to hospital. She was seen there in an outpatient clinic on 5 ^th November 1996 by a breast surgeon who noted an indiscrete area of lumpiness in one sector of her breast (which felt entirely benign), with a diffuse area of extreme lumpiness with a definitive line associated with glandular tissue. In January 1997 Mrs Calden underwent first an ultrasound scan and then a biopsy. The latter revealed a grade 3 invasive carcinoma.

On 19 ^th February 1997 a wide local excision of the affected area with axillary sampling was undertaken. A histopathology report disclosed residual high grade cancer in the walls of the biopsy cavity on all sides. All 12 lymph nodes were found to contain metastatic carcinoma. Unhappily, Mrs Calden’s cancer was a particularly aggressive form of the disease. In spite of treatment by chemotherapy and radiotherapy (and further surgery on 25 ^th March 1997) her condition deteriorated and she died on 22 ^nd December, leaving her husband with three young children to care for.

A defence was filed on 10 ^th October 2000, and a district judge allocated the action to the multi-track the following month. At the first case management conference on 9 ^th February 2001 a deputy district judge made a consent order, setting a timetable for the proceedings leading up to a trial window of 5 ^th -26 ^th November 2001. In particular each side was permitted to instruct an expert on general practice and an expert on clinical oncology, and the usual direction was made to the effect that the experts should endeavour to limit the issues. A schedule of agreed and non-agreed issues was to be filed by 5 ^th July 2001. There was to be a further case management conference on 21st September. Even at this early stage the claimant’s solicitors had suggested, on the advice of their own experts, that expert histopathology evidence would be desirable, but the defendants’ solicitors did not agree, and no order was sought at this stage.

Following the exchange of the experts’ reports, the claimant’s solicitors suggested on 31 ^st May and 20 ^th June 2001 (on the advice of their oncology expert) that it would be appropriate to agree to the joint instruction of a histopathology expert in order to assist the court to determine the probable size of the tumour in January 1996, and that an order to this effect should be sought. On 13 ^th July the defendants’ solicitors responded to the effect that their oncology expert did not believe that this would contribute anything to the case. They suggested that the point might be reconsidered following the projected meeting of the experts.

It appears that the meeting of the GP experts was fixed to take place (on the telephone) on 5 ^th September 2001, and that it had been agreed that the meeting of the “causation experts” (on oncology) should be put off until after the GP experts had had their discussion. In this way their conclusions could be fed into the causation experts’ meeting. On 3 ^rd September, however, the defendants’ solicitors notified the claimant’s solicitors that they had now instructed a consultant breast surgeon, and that for this reason they had postponed the projected discussion between the GP experts which was due to take place two days later. The claimant’s solicitors not unnaturally protested about this conduct by return of post, particularly as it was likely to mean that the trial window of 5 ^th -26 ^th November could not be met. In the event the GP experts had their discussion on 17 ^th September.

On 21 ^st September Deputy District Judge Simpson made an order permitting the defendants to rely on the evidence of Professor Mansel (a breast surgeon) and the claimant to rely on the evidence of Professor Wright (a histopathologist). It appears that the defendant’s solicitor argued that Professor Mansel’s evidence was needed because of the unusual nature of the tumour, and that it would be of far greater help to the court in understanding the nature of the tumour and how it might assist in determining the issues of breach of duty of care and causation than the evidence of a consultant histopathologist.

The deputy district judge ordered that the issues of breach of duty and causation should be tried first, with the trial to take place in Leeds. He did not, however, vacate the existing trial window or direct a new trial window. He merely set out a new timetable, to be completed by 22 ^nd March 2002, and directed that the case be listed for a further case management conference on the first available date after 1 ^st April 2002. No further case management conference was ever sought or fixed, and the court file was retained in the Kingston-upon-Hull District Registry until an order was made on 9 ^th August 2002 directing the transfer of the action to the Leeds District Registry. On 9 ^th December the file arrived at Leeds, and on 20 ^th December Judge Grenfell of his own motion directed a pre-trial review on the basis that the matter appeared to have been ready for trial for some time. He said that he initially had in mind a trial window for February, but on the same day that his directions were given internally to the court a new application was received from the defendants’ solicitors. By this application the defendants sought permission to adduce expert evidence from a consultant histopathologist, Professor Stamp.

The background to this application is that the four causation experts (the two oncologists, Professor Wright and Professor Mansel) had met on 9 ^th July 2002 (over four months after the latest date allowed for in the court order the previous September) and reached a significant measure of agreement. Counsel was unable to explain to us why the new date set by the court for a memorandum of agreed and non-agreed issues (22 ^nd March) had been ignored. In this joint report, basing themselves on Professor Wright’s histological review, the four experts accepted that Mrs Calden’s tumour had measured 2.8 cm in size (including the involved surgical margins) in January 1997. They then calculated backwards, basing themselves on the best paper available to them for tumour growth estimates on patients under the age of 50, and agreed that on the balance of probabilities the tumour size would have been 0.98 cm both on 25 ^th January 1996 (when she saw Dr Fraser) and on 8 ^th February (when she would have been seen at hospital if she had been referred urgently by Dr Fraser). Although they reached agreement on some other issues (based on Professor Wright’s histological evidence) there were certain issues on which there was a significant measure of disagreement.

On 2 ^nd August 2002 Professor Mansel reported to the defendants’ solicitors that he had been disappointed with the outcome of the experts’ meeting in the sense that it negated the causation argument. He said that because they had no independent pathological opinion on the slides, they had had to accept Professor Wright’s review of them. It appeared that the original pathology reports had overstated the extent of the residual cancer in the margin biopsies because the tumour was only present at one edge and not throughout the specimens. As a result the final size of the tumour was much smaller than the original pathology suggested. The whole problem would have been avoided if the whole tumour had been removed initially.

Although we have received no evidence on the point (other than the contents of Professor Mansel’s letter) Mr Evans, for the defendants, has explained to us, as best he understood it, the nature of the problem his clients’ two experts had encountered at that meeting. The hospital histology report dated 21 ^st February 1997 had shown that there had been an examination of the superior, inferior, medial and lateral aspects of the tumour bed biopsy. The pathologist said that histology in each case confirmed that there was residual invasive carcinoma adjacent to the wall of the previous biopsy. In his report Professor Wright said he had examined these sections and estimated by direct measurement on the sections that in the superior, inferior and medial margins the tumour extended to a maximum depth of 5 mm in each. Although he could see malignant cells in the case of the lateral margin, there was too much inflammation for him to be sure of any measurement. These findings led him to be reasonably confident that the tumour measured 2.8 cm in diameter at the time of the excision in January 1997.

It was this written finding by Professor Wright on which the experts based their conclusions in their joint report. Mr Evans says, however, that at the meeting his two experts had argued, on the basis of their clinical experience, that the tumour would have extended more widely at that time, but that during the meeting Professor Wright resiled on what he said in his report and now said that only one margin was affected. This matter has never been put to Professor Wright, and we do not know how he would have responded to it. At all events this is the explanation we were given of that part of Professor Mansel’s letter.

We were told of another difficulty at the meeting to which Professor Mansel did not allude. In his report Professor Wright had calculated the likely extent of the tumour in January 1996 by reference to a formula in which the tumour size, its lymph node status and the tumour grade are added up. It was common ground that this was a Grade III tumour and Professor Wright had made his calculations as to its likely size. He relied on statistical material for his conclusion that lymph node metastases were not present in early 1996, so that the lymph node status in the formula received the lowest available number.

The disagreement between the experts on this point is evident from their joint statement. The defendants’ experts accepted what the statistics said, but their view was that this was in fact a very aggressive tumour with rapid metastatic potential, and that lymph node involvement was likely to have occurred earlier than statistically indicated. Professor Wright stuck by the statistics. He seems to have been influenced by observations on the tumour behaviour after diagnosis (in 1997) when through clonal evolution the tumour would have been very much different to that a year earlier. Mr Evans maintains that his reference to clonal evolution in 1997 took the other two experts by surprise, and that they felt as a disadvantage because they had not examined the slides.

On 21 ^st August 2002 the defendants’ solicitors told the claimants’ solicitors that their experts had been at a disadvantage at the meeting because they had not been able to review the blocks and slides. They thought they should have the opportunity of reviewing them and asked if the pathological specimens could be forwarded to them as soon as possible for this purpose.

It appears that on the same day, without telling the claimant’s solicitors that they were proposing to instruct another expert, the defendants’ solicitors sent a letter of instructions to Professor Stamp, who is a consultant histopathologist based at the Hammersmith Hospital. In due course Professor Stamp was sent a copy of a letter dated 19 ^th September 2002 from the defendants’ solicitors to their oncology expert, together with the histological sections which had now been received from the claimant’s solicitors.

I am bound to say that the defendants’ solicitor seems to have been very far from open to the other side. She has not explained in any statement why she behaved as she did, and she did not come to London for the hearing in this court, so that it was impossible for her to instruct counsel when all three members of the court were expressing concern about her conduct. I can only conclude that she decided not to tell the claimant’s solicitors about her intention to instruct a new expert because she rightly anticipated the explosion this would have provoked. What is less understandable is how as an experienced litigation solicitor she could have considered it proper to tell them that she wished the experts who had attended the meeting to have the chance to review the blocks and slides when her true intention was to send them for examination by a new expert in histopathology.

However that may be, Professor Stamp delivered a provisional report to the defendants’ solicitors in December 2002. A copy of his report was served on the claimant’s solicitors on the evening of Friday 10 ^th January 2003 just before the pre-trial review by Judge Grenfell on Monday 13 ^th January. Professor Stamp had reached conclusions which were significantly different from those reached by Professor Wright, but the claimant’s solicitors were given no chance of receiving Professor Wright’s comments on Professor Stamp’s report before the hearing before Judge Grenfell.

Professor Stamp was confident that in January 1997 the tumour would have considerably exceeded 40 mm and would probably have been nearer 60-70 mm, formed from numerous foci of invasive carcinoma together forming an ill-defined aggregate mass. This figure is to be compared with the figure of 1.8 cm mentioned in the original pathology report, and the figure of 2.8 cm suggested by Professor Wright (and adopted by the experts at their joint meeting). Because the exact dimensions of the tumour were difficult to define, it was very difficult to make “volume doubling time estimations”, but he believed that in January 1996 it would have measured at least 3 cm (as opposed to Professor Wright’s 0.98 cm). He also differed from Professor Wright in that he categorised the cancer as a rare and highly aggressive carcinoma which had adverse implications for prognosis from its inception. Because the tumour was multifocal and diffuse, Professor Stamp said that it would have been extremely difficult to detect it clinically, by feel or by ultrasound. For the same reasons it was more accurate to define it in terms of “extent” as opposed to size.

It was obvious to Judge Grenfell that if this action had been accorded a measure of effective case management, and if the parties (and particularly the defendants) had been willing to obey such case management directions as were in fact made, it could have come to trial in an orderly manner very much earlier. As it was, this heavy clinical negligence action, with an estimated hearing time of four days, was still without a fresh trial window five years after Mrs Calden’s death and nearly two years after the initial case management conference. He was critical of the fact that the February 2001 case management conference appeared to have been dealt with by a deputy district judge purely as a consent order without either party appearing before him. He expressed astonishment at what took place next. He said:

He then set out the history of the matter and observed, correctly, that the defendants had been seriously inconsistent in their attitude towards histopathology evidence. He described how the liability experts had eventually met in July 2002, a year later than the court had originally ordered. He also described how what had seemed to be a harmless enough request for the histopathology slides was made to the claimant’s solicitors when they were not aware that the purpose behind the request was that the defendants’ solicitors should instruct a histopathology expert of their own. He said that in theory within the time between 20 ^th January 2002 (the date of his judgment) and the trial date the claimant’s solicitors could seek Professor Wright’s views on Professor Stamp’s report, but this would mean that the liability experts would have to meet again and to start almost from scratch. He was aware that Professor Stamp had reached conclusions significantly different from those expressed by Professor Wright.

Counsel for the defendants had argued, as he has before us, that to deny the defendants the opportunity to rely on Professor Stamp’s evidence would risk a serious injustice being done. Counsel for the claimant riposted with equal force that it would be unjust to his client to permit this application at such a late stage, so shortly before trial, in particular because to do so would mean re-opening the unequivocal experts’ agreement and almost certainly involve a postponement of the trial for some time.

The judge said that if this application had been made in, say, early 2002, the court would have looked favourably on an argument that the defendants’ experts had changed their mind and now thought it necessary for there to be a separately instructed histopathologist. This possibility had been raised by them in July 2001 (see para 6 above) at a time when it was clearly envisaged that the experts’ meeting would take place within at least a short period of 5 ^th July 2001, the outside date set by the court. In the event the meeting took place a year later when the experts reached their agreement. Professor Mansel’s letter the following month (see para 11 above) and the defendants’ solicitors’ requests for the slides that followed it, suggested that their experts might wish to revisit their agreement. Nothing further, however, was heard from the defendants’ solicitors until they made their application to rely on Professor Stamp’s report. The judge commented:

He said that the instruction of a histopathology expert without informing the claimant’s solicitors ran counter to CPR 1.3. The defendants’ solicitors had embarked on a course which was bound to lead to delay and could result in a serious postponement of an already unnecessarily delayed claim. In the light of the clear and unambiguous experts’ agreement their action could not be said to have assisted the court to deal with the case expeditiously and fairly. It also had the potential to create uncertainty as to when the trial could take place.

Once it was realised that their own histopathology evidence might well be needed, their clear duty was to seek the court’s permission to rely on such evidence, or at the very least to tell the claimant’s solicitors what they were doing, so that those solicitors could have brought the matter before the court. At the very least a fair timetable could then have been put on the production of this further evidence which did not put the kind of pressure it was likely now to put on the claimant and his advisers.

It was not as if any new evidence had emerged, nor as if the defendants’ own experts had expressed themselves to their opposite numbers as in any way disadvantaged. Indeed, the matter went further. Professor Wright had actually taken part in the meeting and was there to provide expert histopathology assistance. In the judge’s view, the proposed new evidence had to be seen in the context that it represented the opinion of another histopathologist without any serious criticism of Professor Wright’s methodology.

The judge said that this situation was markedly different to a situation where the parties had sensibly agreed in the first instance to go down the line of instructing a single joint expert and where subsequently one party could show a genuine reason for relying on its own expert. In this case at two distinct stages the defendants had positively argued against the need for histopathology expert evidence; in the first place against the need for any such evidence at all, and in the second against the need for such an expert of their own.

He was very sharply critical of the conduct of the defendants’ solicitors. He said:

Having described the problem in this way he turned to consider the way he should exercise his discretion on the defendants’ applications. He said that if he were to accede to it, he would be failing to heed his duty to ensure that the parties were dealt with on an even footing. Counsel for the defendants had sought to invoke this part of the overriding objective to achieve equality of histopathology evidence, but the defendants’ approach had run counter to both the spirit and the letter of the Civil Procedure Rules. The defendants’ advisers had been able to devote a substantial period of time to the preparation and finalising of their proposed histopathology evidence, and if he granted their application the effect would be to put the claimant under undue pressure to deal with Professor Stamp’s conclusions. He would not be dealing with the parties on an equal footing unless he were to postpone the date of the trial, and this he refused to do. He had already set the trial window in May 2003, after an earlier trial window had been vacated, and it was intolerable that the claimant should have to wait any longer for the issue of liability to be determined.

He continued:

The rules governing expert evidence are set out in CPR Part 35. The following rules in that Part are of particular relevance in the context of the present case:

In Daniels v Walker [2000] 1 WLR 1382 this court was concerned with a dispute in connection with expert evidence in the context of a very large personal injuries claim. It was not in dispute that the claimant would need some form of care for the rest of his life, and Lord Woolf MR said at p 1383G that there could be hundreds of thousands of pounds involved in the issue as to care. The parties agreed that a named occupational therapist should prepare a report as a single joint expert, and the issue with which this court was concerned on that occasion turned on the question as to what should happen if one of the parties was unhappy with that report once it had been delivered. That was a different situation, but in the course of his judgment Lord Woolf said at p 1387D:

I can dispose of one of the issues on this appeal quite quickly. The judge was absolutely correct to start by fixing a trial window. Far too much time had been wasted since the original timetable was set in February 2001, and he was right to pin the blame on the defendants’ side. After all this avoidable delay, Mrs Calden’s husband was entitled to have his claim tried reasonably soon.

Mr Evans submits that because Professor Stamp’s evidence was so important, it was clearly wrong for the judge to have denied his clients the opportunity of relying on it. It was important on the question of breach of duty, because if, as he suggested, the tumour was diffuse and multi-focal, it would have been difficult to detect, and this evidence would fit with the clinical findings of Dr Fraser and others of “lumpiness” in the breast (rather than a discrete lump). As to causation, it would suggest a very poor prognosis from the outset because of the extensive multiple foci of disease in the breast at the biopsy margins.

Mr Evans has argued that unless Professor Stamp’s evidence is admitted, it will not be possible to have a fair trial as to the issues in this case. Quite apart from its intrinsic importance, the defendants’ experts cannot now, having read his report, stand truthfully by their joint statement. In its absence the court would have no realistic alternative but to accept Professor Wright’s evidence, notwithstanding that there is a genuine doubt about whether he was correct.

In any event, it is said, the three months’ space before the trial window would allow ample time for the parties to absorb Professor Stamp’s evidence and re-cast the joint statement, and the defendants have already undertaken to pay for this. The defendants complain that the case was “lost” in the system between Hull and Leeds, and they could not be blamed for this.

Mr Evans submits that the judge’s order ignored the reality of the expert position. The defendants’ experts were in an impossible situation. They could not now truthfully stand by their joint statement. Nor could they give evidence at the trial contrary to the histopathological evidence they have seen from Professor Stamp, which supports the clinical assessments of the tumour which they had originally made in their reports. We were told, indeed, that they were currently preparing supplemental reports to this end.

In any event, as a matter of practicality, we were told that Professor Stamp would be able to meet Professor Wright given one week’s notice. Thereafter it would be necessary for the other experts to meet again to recast their views on causation, but this should be readily achievable, at the defendants’ expense, within two moths at the very most.

Mr Sheridan, for the claimant, submitted in his skeleton argument that the judge was right, for the reasons he gave. He had well in mind the principles underpinning the overriding objective in CPR Part 1. He clearly had in mind the significance of Professor Stamp’s evidence, but he decided that the other factors on which he relied were of greater weight in the exercise of his discretion. He was entitled to take into account the defendants’ general approach to the litigation. It would send quite the wrong signal to other parties in similar circumstances if they felt that they could go ahead with a joint meeting of experts and then attempt to re-open issues determined by the joint report when it went against them by later obtaining a report suitable to their case and then trying to force the court’s hand by commissioning this new report and producing it without first seeking permission to rely on another expert.

The first issue we need to consider is whether the judge was correct to place an emphasis on the sanctity of the trial window he had set. In my judgment he was. He was under a duty to ensure that the case was dealt with expeditiously and fairly (see CPR 1.2 and 1.1(2)(d)). It had already been delayed for far too long by reason of the defendants’ serious breaches of their obligation to help the court to further the overriding objective (see CPR 1.3), and if the defendants complained that they were being treated to some extent unfairly, they had only themselves to blame. A central philosophy of the Civil Procedure Rules is that cases must be managed towards the trial window or the trial date. It is significant that in the rule relating to relief from sanctions, the question whether the trial date or the likely trial date can still be met if relief is granted is one of the express considerations the court is enjoined to consider (see CPR 3.9(1)(g)). Compare, too, the Practice Direction to CPR Part 52, at para 4.5(2).

Secondly, an important part of Judge Grenfell’s reasoning was based on his firm conclusion that he did not believe the trial window could be maintained if he acceded to the application. Mr Evans has painted a picture in which despite all the delays that occurred in the past because it was difficult to fix meetings involving busy consultants, these delays would somehow or other vanish if Professor Stamp’s evidence was admitted. Professor Stamp could discuss the case with Professor Wright within a week, the five causation experts could meet within two months and so on. This may be a reflection of how litigation of this kind was conducted in the pre-CPR days when matters were habitually delayed until far too late, and then the parties’ experts had to be put to inconvenience to meet the dictates of a fast approaching trial. No doubt this is one of the reasons why it is now not always easy to attract experts of appropriate distinction to take part in this type of work. But in my judgment this experienced judge was entitled to look at modern day realities, and if his view was that the admission of Professor Stamp’s evidence would mean that the trial window would again be lost it would be quite wrong for judges in this court to say that he was wrong to hold that view.

Finally, we have to consider whether the effect of the judge’s order was so evidently unfair to the defendants that we should set it aside even if this means losing he trial window. The judge reminded himself, correctly, that Professor Wright would know he owed a duty first and foremost to the court. One only has to look at the history of his academic and professional career to see that he is a histopathologist of great distinction. The judge’s order permits the defendants to raise written questions of him on his report, and no doubt they will put to him all the points Professor Stamp has raised and he will have the opportunity of re-examining the blocks and slides before answering these questions.

At the trial he can be cross-examined, supposing that he has not modified his views in the meantime, and no doubt arrangements can be made for the evidence from the blocks and slides to be presented in a way that the judge can follow what he is saying. The defendants’ existing experts are not conclusively bound by their agreement (see CPR 35.12(5)), and since it was manifestly based on Professor Wright’s review, the judge would be able to modify his views about its value once he had reached his final conclusion on Professor Wright’s evidence.

The defendants’ experts, for their part, will be able to explain why they still maintain the views they held before the joint meeting. All that would be missing would be Professor Stamp himself. In view of the way the defendants’ solicitor conducted herself on 21 ^st August 2002, I consider that it would be a greater unfairness to the claimant if the trial window were to be lost than it would be to the defendants if they were to lose the benefit of Professor Stamp’s evidence at the trial.

For these reasons I would dismiss this appeal.

I must not leave the appeal without making it clear that I accept unreservedly the submission made by Mr Sheridan to the effect that this court would be sending out quite the wrong signal if it were to overrule Judge Grenfell on the facts of this case. There were a number of aspects of it which bore all the signs of sloppy pre-CPR practice creeping back. The authority of the designated civil judge in raising local standards and correcting sloppy practice is a very important feature of the new CPR dispensation, and this court should not lightly override it.