Taleb v Imperial College Healthcare NHS Trust

MR JUSTICE STEWART: The defendant issued an application dated

In response, there is a witness statement from Ms Anna-Marie Kavanagh, solicitor for the claimant, the statement is dated 31 January 2020. There is a witness statement from Ms Rebecca Aldous dated 4 February 2020. The statement in support (which I have repeated above pretty well in full) was quite narrow in focus; the statement in response is more substantial. Ms Kavanagh's statement helpfully sets out background to the case:

The procedural history in outline is as follows. The letter of claim was sent on 2 August 2016. The defendant's letter in response is dated 12 July 2017. In that letter the defendant said:

The claim form was issued on 11 January 2018, and the claim form Particulars of

Dr Rosenbloom's letter of 19 December 2019, says, having reviewed the available documentation, that, genetic factors may well be playing a part in causing the claimant's very severe neurological disabilities. He says he has come to this opinion as, from his neurological perspective, there is no apparent or clear link between the factors that operated in labour and the claimant's presentation in his new-born period. Further, the claimant's treating paediatric clinicians do not appear to have excluded a genetic contribution to his presentation. He continues by saying that it his understanding from the records that the claimant's parents are third cousins, that his father has the condition termed xeroderma pigmentosum and that he is also described as having a chromosomal rearrangement.

In order to consider the genetic possibilities further, the claimant was seen in the genetics clinic at St Mary's hospital by Dr K McDermott, consultant clinical geneticist in February 2009. She noted that, although the claimant had no dysmorphic features, or other congenital abnormalities, on examination he was fisting, with obvious increased tone in the upper and lower limbs. He also showed deep palmar creases. She noted that there had been recently reported microdeletion syndrome, which includes microcephaly and severe intellectual disability, and that these were at the site of a chromosomal rearrangement found on both the claimant and his father. In June 2010, the claimant was seen by a consultant paediatric neurologist, Dr Muradca(?). It was left open as to whether the claimant had a microdeletion in an area of chromosome 2. Dr Rosenbloom says he is aware that this is a recognised cause of microcephaly, and developmental retardation. Further genetic investigations do not appear have been undertaken. This is according to Dr Rosenbloom's letter of 19 December 2019. In fact, all that I have just said comes from that letter, as does this:

It is against that background that Dr Rosenbloom recommends consideration being given to instructing an expert in clinical genetics to review the relevant records in the case, examine the claimant and give an opinion whether his presentation has been caused or contributed to by identifiable genetic factors.

Ms Kavanagh makes a number of points in resistance to the defendant's application. She first points out that in paragraph 4 of the defence, the defendant admits that the claimant did suffer a chronic partial hypoxic ischemic insult in utero; in paragraphs 40 to 44 of the defence, the essence of this is repeated. Even in the defendant's case summary for this application dated 4 February 2020, the case on causation is: "Both the neuroradiology and the claimant's clinical presentation are consistent with a chronic partial hypoxic ischemic insult in utero. That insult did not, however, occur in labour."

Ms Kavanagh therefore submits that the medical cause of the claimant's brain injury is not in issue, and that the defendant in its application now seeks to obtain evidence on a matter which is not in dispute between the parties on the pleadings or in the agreed case summary. The defendant accepts this point. If the evidence from geneticists is permitted, and if it casts serious doubt upon the admission, there would presumably be an application to amend the defence. Mr Weir QC did submit that there was no jurisdiction for this court to consider this application, because the question on causation sought to be explored in the application of the further expert evidence is not in issue on the pleadings, and that there should be an amendment before the court before the court could deal with it. He did not provide me with a copy of any authority, though he did refer to one by name. He also said that, because if he pressed that particular point too hard the defendant could make an application in face of court, ultimately he was relying upon it as a matter of discretion; the pleadings had been from the outset, and indeed before then, in the letter of response of July 2017, such that they made a partial admission as to causation, in the sense that they admitted that the damage caused to the claimant happened in utero and not because of genetic factors.

In the circumstances, I am not in a position really to deal with the question as one of jurisdiction and I shall deal with it as one of discretion. The claimant says that a complete set of the claimant's medical records, comprising 11 lever arch files and CDs of radiology, were disclosed to the defendant on 15 September 2016. Dr Rosenbloom examined the claimant in March 2018. The defence was served shortly afterwards. The records were therefore available to him, and were indeed available to the defendant prior to the issue of proceedings. There is no explanation as to why Dr Rosenbloom failed to raise the point he now raises until the end of 2019. The first the claimant was aware of it was when Ms Kavanagh received a telephone call from the defendant's solicitors on 18 December 2019. Ms Aldous told her that she had been wanting to discuss the matter with her since a conference on 10 October 2019 but she needed confirmation from the experts as to how to proceed. The issue arose in conference when discussing causation, she was told, because the defendant's experts could not explain the claimant's injury on the basis of the admitted breaches of duty of care. Dr Rosenbloom raised the possibility of the genetic element to the claimant's presentation.

It is worth looking at the statement from Ms Aldous dated 4 February 2020. She says this:

Mr Weir raised whether the defendant themselves had ever thought about this, given that they are highly experienced clinical negligence solicitors and have the advantage of leading and junior counsel on their side and that this question of genetic potential cause or contribution to symptoms such as the claimant has would be known. This was disputed by Mr Barnes for the defendant. Professor Gupta's report is dated December 2019. We do not know the actual date of the report in the sense that practically all the reports from all the parties are dated December 2019. It would be unusual if, without making any reference to it, it was responding in any way to the application notice issued on 19 December 2019. At paragraph 631, Professor Gupta had recognised that on 4 January 2011, the claimant had been reviewed in the genetics clinic, where a genetic diagnosis was felt to be unlikely. He said he was not dysmorphic; there were no physical stigmata which could give a clue towards a clinical dysmorphological diagnosis. Then at paragraph 8.7 he said this:

Ms Kavanagh also relies upon two aspects of medical evidence before the court, the first of which was in the records available to Dr Rosenbloom, but which he did not mention in his December 2019 letter, saying in his letter of February 2020 that he apologises he did not make reference to this in his earlier letter. The first, therefore, of the aspects of medical evidence referred to by Ms Kavanagh are extracts from the claimant's medical records. There is a letter dated 21 January 2011 from Dr Bernhard, a consultant clinical geneticist. She refers to the claimant's family history of xeroderma pigmentosum and his own presentation, comprising the listed features of microcephaly, spastic quadriplegia and seizures. She also refers to what appear to be further genetic investigations. She says she is unable to suggest a diagnosis for the claimant. She states:

Dr Bernhard says the claimant's head is very small, but it appears he has been affected by acquired microcephaly, probably secondary to the brain insults in the perinatal

The second piece of evidence referred to by Ms Kavanagh, is a recently obtained letter from Professor Reardon. This letter is dated 17 January 2020. Professor Reardon is a consultant clinical geneticist and lead clinician in clinical genetics and head of department of clinical genetics, Children's Health, Ireland. He goes into some detail addressing the difference between terminology about chromosomes, as used in Dr Rosenbloom's December 2019 letter and by Dr Bernhard in 2011. He says he has not himself seen any laboratory reports relevant to the investigations. He then

The first investigation showed he has an inversion of chromosome 2. Subsequent investigation of his parents' chromosomes show that this inversion is a familial variant shared with his father. The second investigation, known as CGH microarray, gives a far more detailed analysis of the integrity of the chromosome, and show no evidence of microdeletion. Dr Bernhard's letter states, "No clinically significant chromosomal imbalance detected." From this investigation, Professor Reardon says that there is no evidence of microdeletion in the claimant's investigations. He concludes:

What has been the defendant's response to this evidence, which the defendant has had since it was served on 31 January, some ten days ago? There is a letter from Professor Nemeth dated 3 February 2020. She says she has only limited details of the case, and has not examined the claimant. She has had sight of a clinic letter on the claimant dated 21 January 2011 by Dr Bernhard, referring to previous review by other geneticists and by paediatric neurologists and review of the imaging by several neuroradiologists. She says that where there is a background of genetic abnormality in the context of extensive consanguinity, and where there is no clear relationship between the neurological disorder, the imaging and the perinatal history, then genetic testing would be strongly advised to ensure that no immediately identifiable genetic cause can be found.

Professor Nemeth says that there is increasing evidence that "cerebral palsy" can be caused by genetic mutations. Since genetic conditions causing neurological disorders are found in consanguineous families, genetic investigations are highly advisable. In this case, the lack of a clear antecedent history or hypoxic features at birth, combined with unusual imaging, suggest that other causes should be sought. She adds that since 2011 there has been a revolution in genetic testing such that in current clinical practice most of the coding genes of the genome can be tested for the presence of

I make two brief points about that. First, Mr Weir QC challenged the information which Professor Nemeth had been given about the conclusions she should draw in relation to causation in utero; and secondly, that the way that Professor Nemeth describes matters is quite nuanced, but that it is not, to use his expression, that there is a silver bullet here; that it is a factor which may be taken into account, the effect of which may, in conjunction with the other evidence, be such as to change the balance of probabilities in favour of a cause not related to negligence on the part of the defendant.

Dr Rosenbloom, in a letter of 3 February 2020, to which I have already briefly referred, says that he remains of the opinion that there is apparent or clear link between the factors that operated in labour and the claimant's presentation in his newborn period. He refers to the progress in genetic investigations since 2010 and he says in this case the lack of a clear antecedent history or hypoxic features of firth combined with the imaging appearances suggests that other causes should be sought.

Before coming to my conclusions, I must consider the principles to be applied. The defendant properly drew my attention to the case of S J Moore (Jeweller) Limited v Squibb Group Limited [2018] EWHC 2731 (QB), a decision of Karen Steyn QC as she then was. In that case, having identified that late witness statements are governed by CPR 32.10, which has been held to impose a sanction, the judge at paragraphs 46 to 52 considered an application to rely upon late expert evidence from a new expert. She set out CPR 35.1 and 35.4 and concluded that such an application fell to be determined by reference to the principles governing a relief from sanctions. She referred to the commentary at 35.5.1 of the then White Book, where the notes emphasised that it will not be normally acceptable for expert evidence to be served late, particularly so close to the start of the trial window.

This case does not, I believe, seem to have been picked up by the editors of the White Book 2019. Was the learned judge right in her decision as to the principles arising from CPR 35.4? I must of course be aware of the persuasive precedence of her decision and can only refuse to follow it if I am convinced she was in error. I am afraid that I have reluctantly come to that conclusion. The reasons can be briefly stated. They are these. First, there is, as I read CPR 35.4, no express sanction. Secondly, in my judgment, there is no implied sanction either. In Mark v Universal Coatings & Services Limited [2018] EWHC 3206 (QB), Martin Spencer J, at 52, said this:

Thirdly, CPR 35.4 states, "No party may call an expert or put in evidence an expert's report without the court's permission." There is no implied sanction in the wording of that rule; the rule simply requires the court to give permission. By contrast, witness statements from lay witnesses can be served without the permission of the court, and CPR 32.10 imposes a sanction for failure to serve within the time specified by the court (see, for example, Chartwell v Fergies [2014] EWCA Civ 506, 24). Mr Weir says that rule 35.4 has a self-contained sanction because the rule controls the trial and that when

The other matters to be taken into account derived from the authorities on very late applications were summarised by me in the case of Heiser v The Islamic Republic of Iran & Anor [2019] EWHC 2073 (QB), [27], as (i) whether there is good reason for the late application, (ii) the significance of the new material, (iii) consideration of prejudice to each party, (iv) the need to do justice to all the parties having regard to the overriding objective. If this is not a very late application then the court's discretion is to be exercised simply in accordance with the overriding objective.

I now consider the effect of allowing expert genetic evidence. The claimant says, and

There is an email from Professor Nemeth dated 7 February 2020. In this email she suggests a total time required of around six to seven weeks, assuming no problems such as sample failure, which occasionally occur. That sort of timetable would take us to about the end of March 2020 and would leave only three weeks or so for joint expert meetings, joint report, any amendment to the offence, consideration by paediatric

If the evidence from a geneticist does raise a serious issue as to causation, then there is no doubt that the significance of the new material as a factor is of a high order. This is apparent from what Ms Kavanagh herself says as to why such evidence should not be instructed on a joint expert basis. It may possibly amount to a complete defence; alternatively, it may amount to a partial defence. In either case, there will be the potential for very substantial savings to the public purse. The full liability value of the claim, if successful, at least in my estimate (not from counsel, though perhaps I should have asked counsel) is probably somewhere between £10 million and £20 million and could be somewhat more. I only mention those very broad figures to give some idea of the amount of money potentially in issue. As to whether there is a good reason for the late application, the claimant has quite properly raised questions as to why

So, some nine or ten weeks pass. Two weeks passed before Professor Nemeth was approached, the explanation being that efforts were being concentrated on attempting to finalise factual witness evidence. Then from 22 October to 21 November (a period of just over four weeks) there is little detail as to when instructions were taken and how quickly or slowly Professor Nemeth responded. Then from 21 November 2019, it is not quite clear when Professor Nemeth provided her written advice, but it was sent to NHS Resolution on 5 December. It has to be said (and I say this in a way critically) that for something as highly explosive (as the defendant would have me understand this application could be to the potential causation issue between the parties) the pace seems to be relatively leisurely. If there were problems with Professor Nemeth coming back or providing a report, that should be made clear. There is nothing of that sort, and in nine weeks not very much appears to happen, and there appears to be little sense of urgency. If that nine weeks had been reduced by four to six weeks, that may have had an effect on the trial date potentially being able to be kept. I cannot say for sure, but it certainly would have been more persuasively argued by the defence. So, I am not persuaded that, given the circumstances of this case, and the potentially very important nature of the issue, there was any proper galvanising of the obtaining of the evidence, the obtaining of instructions, and the issuing of the application.

We then get to the second period, which is from when the application is apparently issued on 19 December 2019. In the witness statement it says this:

I should say that if an application which may well cause the vacation of a trial date is made then it should go to QB judges listing and it should be made clear just how urgent the matter is, and if, after an initial email and/or telephone call, there is not some response, then it should be asked to be referred to myself as judge in charge of the list.

Apart from the fact that trials should only be vacated as a last resort, there are particular circumstances militating against the vacating of this trial. The claimant requires 24-hour care, has seizures every day and is totally dependent on others for all aspects of his care and daily life. He is doubly incontinent. His parents apparently have not had an unbroken night with him since he was born. His mobility is very severely restricted. Unsurprisingly, the claimant's parents have been focussed on reaching a conclusion to the liability matter following trial in April 2020. If the claimant succeeds on causation, a substantial interim payment is very likely to follow, thereby alleviating, to the extent that money can, a number of real-life difficulties.

If the claim on causation fails, at least the family will know where they stand and will move on with their lives. If the trial is vacated, Ms Kavanagh says it is unlikely to be heard until at least another 12 months have passed. The court has enormous experience of the difficulty in listing cases of maximum severity injuries because of the availability of experts. As far as the court is concerned, this matter could be reheard sometime around October/November 2020, which will be six months away. Apparently, without geneticists, there are ten expert witnesses, and if there were geneticists there would be 12, and I can well understand, that, that six-month delay may well rise to something in the region of 12 months if the availability of the experts follows the usual type of pattern.

So, just to pause at that point, firstly, the trial date will almost inevitably have to be vacated; secondly, the causation issue is not on the pleadings, has never been on the pleadings and has only been raised very recently to the claimant in December 2019; thirdly, there is no good explanation, especially in circumstances where it appears that the claimant, through its paediatric neurologist, had considered this issue earlier and where it is apparent on the records that the treating neurologists had considered the matter up to, and including 2011, as to why the defendant had not previously taken any account of this potential issue, and indeed, had put in a letter of response and pleadings and agreed summaries of facts directly to the contrary.

Not only that, but when one looks at the application, one has to say that there is a possibility that the genetic evidence might be relevant, given the advance in that area of medicine, and the court cannot exclude that possibility. However, the weight, so far as the court can assess it (which is difficult) has to be put into the balance. I

So, it is not the position that the experts, certainly not Dr Stoodley or the claimant's experts, do not attribute and cannot attribute damage in utero as being the cause of the claimant's problems. I accept there is a caveat; I accept the possibility that geneticists' evidence may give a causative explanation based on genetics rather than on the defendant's negligence). But also, albeit some years ago, when matters were not as advanced, there were treating doctors who considered carefully whether the claimant's damage was due to genetics, and a consultant geneticist came to the conclusion that it probably was not. I have to weigh all those factors into account, and I have come to the conclusion that it would be wrong, having regard to the

For the reasons I have given, I refuse the application.