Allen v Burne

This is an application for permission to appeal, with the appeal to follow if permission is given. It has been directed to be heard by Wilson LJ and myself because the issue arises from our earlier decision, sitting with Ward LJ, to allow the defendant’s appeal against the decision in the claimant’s favour on liability, given by HHJ Charles Harris QC.

I am not going to set out the procedural history in any detail. It is a matter of record and is well known to the parties. The claim is a personal injury claim against a general practitioner for failure to diagnose a life-threatening condition in the claimant, now a teenager. On a trial of liability only, as I have said, the judge found for the claimant but he did so because he was unprepared to accept the view of both experts that it was inappropriate to ask the mother what were in effect leading questions. Had the defendant done so, it was the judge’s conclusion that he would have elicited the critical symptoms and damage would have been avoided. We overset this judgment not because it was not open to the judge to differ from the experts, at least on this issue, but because the judge had done it without its being openly canvassed either by counsel for the claimant, who quite understandably considered himself constrained by his expert evidence, or by counsel for the defendant, who did not have adequate notice that this course was in the judge’s mind.

I said (the judgment is reported at [2006] EWCA Civ 24) at paragraph 30:

“It offends one sense of justice to be obliged to accept the unacceptable. I can entirely understand why Judge Harris thought it unacceptable that the culture of general medical practice should be so suspicious of self-serving reportage that it encouraged doctors to ask nothing specific even where the caller was the mother of a child whom the doctor knew to have a shunt in place and the child might have symptoms caused by a blockage. But if this was his initial response, as it evidently was, it was incumbent on him to do one or both of two things: to ask the claimant’s counsel whether, should his findings reach this point, he was invited to consider whether the expert evidence in support of the doctor made sense; and, if counsel said yes, to ensure that the doctor’s side had a proper opportunity to respond. From what we are told by both leading counsel, this is not what occurred. In fairness to the judge it should be said that he did, over four pages of transcript, canvass with counsel for Dr Byrne the difference between what seemed to him the commonsense approach to questioning Miss Pember and what the experts had considered acceptable. But the possibility in law of his discounting their view was not raised.’

Ward LJ at paragraph 63 said:

“Reading the judgment as a whole it seems to me to be apparent that if the judge had followed the views given by the experts, then he would have acquitted the defendant of professional negligence. He baulked at this, as it seems to me from reading the transcript as a whole, because he was much influenced by the fact that the boy had twice been referred to the hospital because of complications in connection with the shunt.”

A little later:

“Now I confess I have a great deal of sympathy with the judge in that view. Like Rix LJ [who gave leave] I at first felt that, ‘the judge’s judgment and reasoning reads persuasively.” I am not, however, I am convinced that we are entitled to rely on what seems common sense to judges and consequently dismiss the views of the experts as illogical. At least we should not do so unless the Bolitho point has been properly taken in the court below and the experts given an opportunity to explain and justify their practice.”

Wilson LJ (who will speak for himself, of course, but who I believe had somewhat wider reservations about the judgment) agreed that the claim must be remitted for what he described as a de novo hearing, what Ward LJ described as a full rehearing and what I called a retrial. We were not invited to make more specific provision for what was to happen on the retrial. Instead we all expressed the strong view that the claim ought to be concluded by alternative dispute resolution. We expressly left all further directions to the court below. In retrospect it may be that we should have anticipated what has now happened. Instead of going directly to alternative dispute resolution the parties have agreed that the retrial should be enlarged to include damages, which in this case are a major and far from simple aspect of the case, and ever since our judgment in January 2006 have been preparing for a full retrial.

One aspect of this preparation has been an application by the claimant’s lawyers to replace their general practice expert, Dr Isaac, with a fresh expert, who is known to be Dr John Grenville and whose report has been prepared and made available in these proceedings. The reason is readily understandable. Dr Isaac did not support the appropriateness, even in the circumstances of this case, of asking what a lawyer would call leading questions about the boy’s condition when the doctor was consulted on the telephone by the mother. But Master Yoxall, upheld on appeal by HHJ Mackie QC, refused to allow Dr Isaac to be replaced by Dr Grenville. Both the master and the judge gave judgments which, if this is simply a case management issue, cannot be faulted and which Mr McDermott QC for the claimant has not suggested can be faulted. They could not therefore justify a second appeal. The judgments recognised in particular that the decision of this court had been premised on the legal possibility that, given proper procedures, the judge could have found for the claimant notwithstanding the tenor of the expert evidence that had been called before him.

But Mr McDermott contends that this is not simply case management. He submits that the refusal invades a fundamental principle of litigation, the right to a fair trial: more specifically, the right of a party to present its case as it deems most advantageous. If he is right about this then I am prepared entirely to accept that the issue is not one of simple case management and that it touches upon a matter of principle and of practice sufficient, at least on the face of it, to warrant a second appeal.

Which is it? In spite of the ambiguous form of order drawn up by Master Yoxall, to which some discussion has been devoted both by Mr McDermott QC and by Mr Grace QC for the defendant, the judgment given by Master Yoxall makes it pellucidly clear that he was not allowing any further or fresh GP or expert evidence to be called. There is however, as I will mention later, much that this does not exclude. Even so Mr McDermott submits that there will be a resultant inequality of arms, which is fundamentally contrary to principle.

I am not persuaded by Mr McDermott’s arguments, seductively though they are put. There is nothing that this court, any more than the judges below, can do about the escalation of the case and the failure to engage seriously in ADR. It was reasonable to suppose when this court parted with the case that it could be and perhaps would be retried, if it was retried at all, not by recanvassing much of what had been decided by HHJ Harris but by concentrating on the critical issue which had brought about the order for retrial.

Once re-embarked on, the litigation was not a clean sheet. It was already in being, and if alterations were to be made to how it was to be conducted and presented then that had to be done by agreement or by direction. Before the introduction of the Civil Procedure Rules it might have been arguable that a party had an indefeasible right to select and call its witnesses, lay and expert, without prior interference by the court. But even if that was formerly the case it is now history. A point may nevertheless come, and I accept that Mr McDermott is right about this, where case management trenches upon fundamental rights in litigation, and this court will be vigilant to watch for such cases. But here it seems to me, the claimant is in no serious way precluded from advancing again the case that succeeded at trial, for we have made it quite clear already that that case is capable of standing up on the evidence that was previously given. Without adopting the rhetoric in Mr Grace’s skeleton argument about shopping for experts, the courts below were entitled to recognise that the claimant already had a sufficient platform in evidence and, importantly, in argument which it was open to counsel to adopt, even though Dr Isaac did not go the distance that Mr McDermott needed.

I think it may also have been in the Master’s mind that it was not necessarily going to be especially impressive if on retrial the claimant introduced a new expert to back up his arguments on the Bolitho question; but nothing of that sort is articulated and I place no reliance on it. What seems to me more significant is that, as Mr Grace accepts, the neurosurgical evidence which it is open to both parties to put in, and in support of which they could both call witnesses, can quite legitimately deal with the Bolitho issue in relation to GPs’ questions insofar as it lies, as it may well do, within the remit of a neurosurgeon (who of course will have to deal with the consequences) as well as of a general practitioner.

Next, although not permitted to replace Dr Isaac, the claimant is not required to call him. While therefore attention no doubt will legitimately be drawn one way or another to what Dr Isaac said, Mr McDermott will not be fixed with it in the sense that he will have called Dr Isaac. What is more there is no apparent legal or procedural inhibition, and Mr Grace does not suggest that there is one, on Mr McDermott’s putting Dr Grenville’s report, which has been disclosed in full, to Dr Lewis if and when Dr Lewis is called as an expert witness for the defence. That of course has certain consequences for both sides. Possibly Mr Grace will consider after today the possibility that he would be better off in this situation having Dr Grenville in the witness box and being able to cross-examine him, and so consenting to a variation of the order that has been made; but for the present it seems to me that no serious disadvantage results to the claimant from the inability to put Dr Grenville in the witness box.

So I am driven to the conclusion that this is indeed a question of case management. It follows that it is not an apt case for a second appeal. It follows also that, even if we were to entertain this as an appeal, the case would not be one in which Mr McDermott could succeed in establishing that Master Yoxall had exercised the court’s powers in way which could be impugned in law.

Whatever happens now in the litigation this remains in my view a case in which alternative dispute resolution is an overwhelmingly important objective both for the parties and for the administration of justice. There is no reason why, even though the case has travelled a good deal further down the road than we anticipated it would, ADR can not now be seriously embarked upon, possibly even more seriously and more usefully now that the full range of issues has been exposed by the exchange of evidence. For the present, however, I would limit myself to refusing permission to appeal.

I agree that permission to appeal should be refused but, with great respect to my Lord, I reach that conclusion by a slightly different route.

Speaking for myself, I would not despatch the application by reference, for example, to the fact that ordinarily the decision whether to allow a party to substitute the evidence of one expert with that of another falls squarely within case management, seldom fit for one appeal let alone for a second; nor alternatively, to despatch it by reference to the firm disinclination of the court nowadays to allow litigants to shop around for a different, more favourable expert. For it was our decision in this court, also including, importantly, Ward LJ, which gives rise to the rehearing; and in my view it is entirely reasonable, at any rate in principle, for the claimant to ask us to explain what our order meant. I fear that the claimant probably had to do as he did, namely to apply to the master in the ordinary way, rather than to apply directly to this court for clarification of its order; but it is unfortunate in another sense that the issue has taken so long in wending its way to the court which, with respect to the master, to the judge and in particular to my Lord, should really preside over its resolution.

In my view “a full rehearing” or “a rehearing de novo” means a hearing in which the second judge at trial starts from the beginning, just as the first judge did, and, otherwise than by consent and for good reason, inherits none of the first judge’s findings even in areas in respect of which there has been no controversy. I am clear that a rehearing de novo does not necessarily mean not only that the fresh hearing starts from the beginning but that the assembly of evidence on each side also starts from the beginning, with the result that, were the parties to wish to call further or different evidence from that which they called at the first hearing, they should in principle be allowed to do so. But I would go further. In my view a rehearing de novo does not even ordinarily mean that the parties can in principle reassemble their evidence in the way which I have described. No doubt there are cases in which a rehearing is ordered because of a lacuna in the evidence which, exceptionally, the party upon whom lay the burden of adducing it is allowed to try to fill with fresh evidence; and no doubt there are other cases in which a rehearing is ordered not because of any such lacuna but because of some deficiency in the evidence led at trial which, again exceptionally, this court permits the party who adduced it to seek to remedy with different evidence. I would expect, however, that in those two circumstances the judgments of this court in which the decision to order the rehearing is explained would make clear that its basis is one which anticipates further, or different, evidence.

In subscribing (actually with some hesitation, as the words of my judgment I believe made clear) to the proposal of my Lord and of Lord Justice Ward that there should be a rehearing, I certainly did not intend to subscribe to an order for a rehearing at which either party, but obviously in particular the claimant, would be calling an expert in the realms of general medical practice other than, or additional to, the expert whom he had called before the circuit judge. I had read paragraph 37 of my Lord’s judgment in draft. In referring briefly to the issues which would arise within the proposed remit, my Lord had anticipated an argument on behalf of the claimant that “notwithstanding the expert evidence” the practice of asking only open questions was not acceptable by Bolitho standards. Although of course my Lord is the best exponent of his meaning, my subscription to the proposed result was based upon a perception that he was anticipating, no doubt subject to any further movement on the part of either expert and in particular of Dr Isaac, that the expert evidence in this realm would remain as it had been before the judge and, certainly, would be given by the same experts. Equally I had read paragraph 63 of the judgment of Ward LJ in draft and had noted his view that no court should override the expert evidence by reference to the principle in Bolitho until the applicability of the principle had been made open for submission and until “the experts [had been] given an opportunity to explain and justify their practice”. I interpreted these words as, again, anticipating that the expert evidence on general practice would come from the same sources.

In his highly attractive submissions this morning Mr McDermott has sought to suggest to us that the claimant would be gravely disadvantaged by the rejection of his application and/or the dismissal of his appeal. He has also cleverly suggested that the court would be disadvantaged by being left with the evidence in the state in which it was before the circuit judge. I do not accept those submissions. On the contrary - no doubt it is as a result of a failure of imagination on my part and I do not in any way criticise what has subsequently happened - the fact is that there are now two advantages for the claimant which, when I subscribed to our decision, I did not myself contemplate. The first is that, by consent, neurosurgical evidence is to be adduced on both sides and, if that adduced on behalf of the claimant is ultimately preferred by the judge, such may be very helpful to the claimant in respect of his submissions pursuant to the principle in Bolam. The second is, as my Lord has indicated, that there is a report by Dr Grenville. It has been disclosed. It is agreed by Mr Grace Q.C. that it can be put to his expert, Dr Lewis. Certainly – in terms of evidence given by experts and subject, of course, to the evidence of Dr Isaac - the court will be bound by the answers which Dr Lewis gives to the points which he is asked to address in Dr Grenville’s report; and, bearing in mind that the case will be heard by a High Court judge, we can be sure that the court will have the intellectual rigour to remind itself that Dr Grenville’s report does not stand as evidence in the case. Nevertheless, if Dr Lewis’s answers to the points which he asked to address within Dr Grenville’s reports are not convincing, surely that will help the claimant in the submissions that he will be making pursuant to the principle in Bolitho.

It is for those reasons that I conclude not only that there is no important point of principle or practice in the proposed appeal but, following careful consideration, that, further, there is no other compelling reason for us to hear the full appeal. That is why I subscribe to my Lord’s suggested refusal.