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Published 12 November 2018
The Third Defendant's (D3) original Application was made prior to exchange of expert evidence but supported by an expert GP report. It was noted that the Claimant could have served expert evidence in response and that failure to do so played a significant part in his downfall. D3's GP report confirmed it was reasonable to have advised the Claimant, who had described symptoms akin to a developing cauda equina syndrome, to attend A&E for urgent onward treatment. It was the Claimant's case, however, that D3 should have referred directly to the Orthopaedic team, bypassing A&E and avoiding significant delay which resulted in irreversible injury. This was the view of the Claimant's GP expert, but instead of a full report being served in response to the Application, a short letter of support was submitted confirming that the expert maintained his support of the Claimant's case. Click here for the High Court Judgment.
The Court found that whilst there was no reason why Summary Judgment Applications could not be made in clinical negligence cases, that it would be a rare set of circumstances where such an application could be considered before exchange of expert evidence and, in most cases, until after the conclusion of those experts' meetings and joint statements. The Appeal Court's decision was a stark comparison to the Master's earlier decision and the following reasons were cited as the basis:
It is expected that we will see reference to this Appeal decision in the context of Summary Judgment Applications for some time. It currently remains to be seen whether D3 will pursue the matter further.
For now, we consider the impact will be fewer Summary Judgment Applications being made at such an early stage and, in particular, prior to cases reaching the stage of experts' discussions and joint statements. It would seem that the Courts are perhaps far more willing to make decisions in respect of Summary Judgment when the parties have made further progress in terms of the litigation timetable and the experts have had an opportunity to properly consider, report and jointly debate the allegations.
This decision does not mean that Defendants should stop considering such Applications earlier within case management, however, and it remains that each case should turn on its own merits. Exchange of expert evidence will remain a crucial time to consider the strength of opposing evidence and whether an Application, in those circumstances, is merited.
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