Parkinson, R (on the application of) v Royal Bolton Hospital NHS

LORD JUSTICE SIMON: This is an application for permission to appeal the order of His Honour Judge Armitage, Queens Counsel, sitting in Manchester County Court on an appeal from an order of District Judge Harrison. It is, as such, a second appeal and has to satisfy the test for second appeals as set out in CPR part 52.13: not simply satisfying the court that there is a real prospect of successfully appealing the order, but in addition showing that there is some compelling reason for the Court of Appeal to hear it.

In the present case, the appellant faces the difficulty that not only does the appeal seek to challenge an order made in the course of a case management hearing; it was a decision on costs and, as such, plainly involved the exercise of a discretion.

The facts can be stated shortly. The claimant's claim is a clinical negligence claim against the two defendants, founded on their failure to diagnose her autistic spectrum disorder and Asperger's syndrome. The claim was begun late, and proceeded very slowly and sometimes not at all.

In April 2014, the claimant sought to amend her claim in two ways; first, by adding a claim of sexual assault against the first defendant and, secondly, by adding further particulars to the allegations of negligence against both defendants. These had already been particularised in the particulars of claim before amendment.

The hearing before the District Judge took place on 14 May, although judgment was not given until 11 August 2014. The District Judge refused the application to add the claim for sexual assault and no complaint is made about that. He allowed the amendments to be made, but ordered the claimant to pay all the costs in the action up to that point.

The claimant, by Mr Butler, submits that in making the latter order, the District Judge acted contrary to a well established legal principle that such an order should only be made where the court can be confident that the claim could not have succeeded without the amendments. Or, to put it another way, where the court is able to provide a summary answer before trial as to the viability of the unamended cases; see the judgment of Lord Justice Rix in Chadwick v Hollingsworth [2010] EWHC 2718 (QB) at [24].

Mr Butler submits that the District Judge did not refer to the rules in the course of his judgment, pursuant to which he was making his order, and he points out that the redrafted particulars simply add four paragraphs of the particulars of negligence in relation to the claim against the first defendant; and two in relation to the particulars of negligence against the second defendant.

It does not appear that the District Judge adopted the approach which I have outlined. He seems to have seen the need to penalise the claimant for the delay in articulating the claim, nor does it appear to have been the approach of the judge either.

In my view, Mr Butler is entitled to say that this amounted to a failure to follow a well established principle, which has resulted in injustice to the claimant. Simply by way of example, if she were to win on the basis of her pleaded claim before it was amended, she would be unable to recover any costs incurred before her amendment, including the costs of the experts' reports which had already been obtained: respectively in relation to one in November 2012 and in relation to another in April 2014.

That this would be so, suggests that something has gone awry in the forensic process. While it would be wrong to express concluded views at a permission stage the case seems to me at least potentially to fall within the category described by Lord Justice Dyson in Uphill v BRB [Residuary) Limited [2005] EWCA Civ 60, paragraph 24, of a case where it is clear that the judge has erred in principle, and that the order is such that it is properly questionable whether he exercised his discretion judicially.

So far as the first appeal is concerned, if that is right, the judge must have decided the appeal in a way which was plainly wrong. Whether that impression is correct will, of course, be for the full court to decide. However, on this basis, I am prepared to grant permission to appeal.