Appeal decision calls into question the merit of early Summary Judgment Applications - Hewes v West Hertfordshire Hospitals NHS Trust & Others

Published 12 November 2018

In June we reported a successful Summary Judgment application by the Defendant in Hewes v West Hertfordshire Hospitals NHS Trust & Others. We must now report that the decision has recently been successfully appealed. We take a look at the Court's decision-making below and how this will impact cases going forward.

Master's decision

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.

High Court Appeal decision

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:

1. The Master had wrongly drawn the conclusion that the Claimant's expert would not sufficiently respond to D3's expert and, therefore, that the Claimant would not be able to establish his case against D3.
2. It was incorrect to say that the Claimant's case that 'any reasonably competent medical practitioner should take steps to minimise delay' was doomed to fail.
3. The Claimant's failure to provide reasons for his view that 'no responsible GP would have referred the Claimant to A&E in the circumstances' was no justification for citing the Claimant's case as "unarguable and unsustainable".
4. The Claimant was under no obligation to produce his expert's full report until later in the course of litigation.
5. In the event that the Claimant's expert report had been provided to the Master, the Appeal Court was certain that D3's Application would have been dismissed.

The impact

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.