Clinical negligence claims not based on expert evidence will be struck out

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Clinical negligence claims not based on expert evidence will be struck out

Published 17 June 2020

 The recent appeal decision in Magee v Willmott [2020] EWHC 1378 (QB) serves as a useful reminder for solicitors acting on behalf of claimants in clinical negligence claims that they “must take care to ensure that the pleadings properly reflect the expert opinion and do not contain unfounded allegations” or risk having the claim struck out.

The Background

The claim relates to an alleged delay by the GP defendant in diagnosing bowel cancer following consultations with the Claimant in August 2012 and April 2013. The Claimant’s cancer was diagnosed just two days after the consultation in April 2013.

Expert evidence was exchanged on 15 July 2019. On the face of it, the Claimant’s expert evidence did not support many of the breach of duty allegations and causation evidence from an Oncology expert was not served by the Claimant. This was highlighted to the Claimant’s solicitor by the Defendant’s solicitor.

On 6 August 2019, the Claimant issued an application for permission to rely upon further expert evidence and, at a Pre Trial Review on 8 August 2019, the Defendant made a cross-application to strike out the claim due to the Claimant’s lack of supportive expert evidence. The District Judge presiding over the PTR vacated the trial and both parties’ applications were listed to be heard on 23 September 2019.

At the hearing on 23 September 2019, the Recorder dismissed the Defendant’s application to strike out the claim and gave the Claimant permission to rely on new expert evidence. The Recorder also granted the Claimant relief from sanctions for serving late evidence despite causing the original trial date to be lost. The reasoning provided for the Recorder’s decision was based on Article 6 of the European Convention on Human Rights (ECHR) - the right to a fair trial. The Recorder took the view that there would be greater prejudice to the Claimant by striking out the case than to the Defendant by allowing the Claimant to prove that her cancer should have been diagnosed earlier.

The Defendant GP appealed the Recorder’s decision.

The Appeal Decision

On appeal, Mrs Justice Yip held that the Recorder had erred in his approach to relief from sanctions because he had focused on prejudice and Article 6 ECHR rather than on the test set out in CPR 3.9 and the Denton principles.

Yip J considered that the Claimant’s late service of new expert evidence was a serious and substantial breach as it resulted in the trial needing to be vacated; this impacted upon the parties in the present case and on the court’s limited resources. The Judge was critical of the Claimant for pleading and maintaining a claim in negligence “without proper expert support and for a late attempt to be made to furnish evidence to support the claim just before trial”. Pursuant to CPR 3.9, Yip J emphasised the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions and orders. The Judge commented that allowing the Claimant’s application for relief “would not only fail to do justice between the parties but would serve to discourage the sensible, pro-active and efficient approach to litigation” which was exemplified by the Defendant and her legal team. Yip J, therefore, refused permission for the Claimant to rely on fresh expert evidence and refused the Claimant’s application for relief from sanctions. The Claimant could not rely on the further evidence.

The allegations in relation to the GP consultation in April 2013 were struck out under CPR 3.4 because (i) the Claimant did not have admissible expert evidence in support of breach of duty on that date and (ii) in any event, a delay in diagnosis of two days was not causative of any injury/loss. The Particulars of Claim disclosed no reasonable grounds for bringing the claim . Yip J was scathing of the conduct of the Claimant’s solicitor and considered that that part of the claim should also be struck out for abuse of process. The claim in relation to the allegedly negligent consultation in August 2012 was allowed to proceed. However, Yip J commented that it “no longer has any realistic prospect of success” so an application for summary judgment pursuant to CPR 24 may be appropriate.

Impact

The decision in Magee highlights the need for claimants to be in possession of expert evidence in support of their case in clinical negligence claims before the deadline for exchange of liability expert evidence and, it would seem, at the time their pleaded case is served.

The decision also confirms the importance of compliance with the court’s directions timetable and that parties are unlikely to be granted relief from sanctions where their failure to comply with rules and orders results in the adjournment of the trial date. Where necessary, timely applications for permission to rely upon further expert evidence should be made by claimants and defendants in order to avoid the need to vacate a trial listing.

Key Contacts

Sebastien Kelly

Sebastien Kelly

Winchester

+44(0)1962 70 5534

Benjamin Newall

Benjamin Newall

Winchester

+44(0)1962 70 5549

Peter Downey

Peter Downey

Leeds

+44 (0)113 251 4758

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