In Magee v Willmott Browne Jacobson successfully appealed on behalf of the Defendant a lower court decision to allow the Claimant relief from sanctions to rely upon expert evidence served after the deadline had passed for exchange and not to strike out part of the Claimant’s case which was unsupported by the Claimant’s breach expert and where no case on causation had been pleaded.
In Magee v Willmott Browne Jacobson successfully appealed on behalf of the Defendant a lower court decision to allow the Claimant relief from sanctions to rely upon expert evidence served after the deadline had passed for exchange and not to strike out part of the Claimant’s case which was unsupported by the Claimant’s breach expert and where no case on causation had been pleaded.
The Claim was initially brought against three Defendants for the alleged delay in diagnosing bowel cancer. The Claim was discontinued against the First Defendant and the Second Defendant. The Second Defendant obtained an Order for wasted costs on the basis that the Claimant had brought the Claim against the Trust without the relevant expert evidence.
The allegations against the remaining Defendant (Appellant) spanned three consultations; two in August 2012 and one in April 2013. Expert evidence was exchanged in July 2019 and upon review, the Appellant noted that the Respondent’s evidence did not appear to support many of the pleaded allegations of breach of duty and that no oncology causation evidence had been served. The Respondent’s solicitor advised that he had made an error and not all of the evidence in his possession had been served and made a late Application seeking permission to rely upon further expert evidence, all of which post-dated the date of exchange of expert evidence. The Appellant issued a cross Application to strike the Claim out making it clear to the Court that the Respondent’s Solicitor’s explanation in respect of the error regarding expert evidence was not accepted. The Trial date was lost as a result of the Claimant’s Application.
The lower Court granted the Application made on behalf of the Claimant (Respondent), which was accepted to be a relief from sanctions Application, despite it being accepted that the breach was serious and there was no good reason for it. The Recorder dismissed the cross Application to strike out the Claim despite the Claimant’s (Respondent’s) advocate accepting that they could not succeed on the April 2013 consultation irrespective of whether permission to rely upon the ‘new’ evidence was allowed as the breach expert did not support the allegations.
The Claimant’s Solicitors were ordered to pay the Defendant’s costs of and occasioned by the Application for relief from sanction on a wasted costs basis and no order as to costs was ordered in respect of the strike out Application.
The Appellant appealed the decision of the court of first instance to grant the Respondent relief from sanctions on the basis that rather than applying the proper approach under CPR 3.9 and following Denton, the Recorder had treated the test as a simple balance of prejudice, weighted in the Respondent’s favour because of Article 6. It was argued that the Recorder did not give any proper weight to the two factors specifically referred to in the CPR and failed to explain why the loss of the Trial date had not proved decisive in the circumstances of the case.
Yip, J concluded that the grounds of appeal were well-founded and the Recorder did err in his approach to the application for relief from sanction. Yip J commended the approach of Ms Jackson, the Appellant Solicitor stating that her conduct was ‘exemplary and demonstrated a genuine desire to deal with the matter fairly, efficiently and within the timetable set by the court’ but that in contrast, Mr Anwar, the Respondent’s solicitor was ‘not frank with Ms Jackson or with the Court’ and that despite seeking to ‘give the impression that the problems with the Respondent’s evidence arose through his oversight in serving the ‘wrong’ evidence but that he was in possession of evidence supporting the pleaded allegations of breach of duty and causation…the reality was that after Ms Jackson had taken the trouble to identify the real weaknesses in the case, Mr Anwar set about trying to put the case in order’.
Yip J criticised the Respondent Solicitor’s conduct, acknowledging that the Respondent was not personally responsible for her solicitor’s failings. The Respondent Solicitor had persistently failed to deal frankly and openly with the parties. The Respondent Solicitor failed to exchange expert evidence in accordance with the procedural timetable and lost the trial date as a consequence. Yip J held that ‘it is simply not good enough for a claim for professional negligence to be pleaded and maintained without proper expert support and for a late attempt to be made to furnish evidence to support a claim just before trial’ Yip J concluded that ‘to allow the 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 exemplified by the Appellant’s side’.
Yip J accepted that in light of her decision on the appeal relating to the relief from sanctions application, she then needed to consider the Appellant’s strike out Application as the Recorder’s decision to dismiss that application had been founded on the grant of the application for relief from sanctions which had now fallen away.
Yip J concluded that the April 2013 allegations ought to have been struck out as it was clear that on the face of the pleadings there was no basis for maintaining the alleged breach of duty was causative of any loss and it was apparent that the Respondent did not have any admissible expert evidence to support the allegations of negligence. Yip J also concluded that it was an abuse of process, in the sense described by Coulson J in Pantelli to put forward a claim for professional negligence that was not founded on appropriate expert evidence.
Yip J did not strike out the totality of the Claim as she considered that there was expert evidence that was ‘just sufficient to mount a claim’ but made clear that ‘taking into account matters raised in the Defence coupled with the absence of any causation evidence in relation to the August 2012, this claim no longer has any realistic prospect of success’.
In denying relief from sanction, the Respondent is now only permitted to rely on the evidence served in accordance with the procedural timetable, which counsel for the Respondent has accepted will mean that the case cannot succeed. This severe consequence is a result of the Respondent Solicitor’s failure to ensure that the Respondent had the correct expert evidence to support her pleaded case prior to the exchange of expert evidence, failure to be frank and open about the nature of the evidence obtained and a failure to make the application for relief from sanction promptly.
This case serves as a reminder that, “all practitioners must take care to ensure that the pleadings properly reflect the expert opinion and do not contain unfounded allegations”.
Louise Jackson of Browne Jacobson was instructed by MPS and MDU.
The BMA is advising all NHS / HSCNI consultants to ensure extra-contractual work is paid at the BMA minimum recommended rate and to decline offers of extra-contractual work that doesn't value them appropriately.
NHS England has published (October 2022) new guidance - Assuring and supporting complex change: Statutory transactions, including mergers and acquisitions.
NHS England has issued an updated (publication 11 October 2022) suite of Complex Change guidance about how it will assure and support proposals for complex change that are reportable to it. New and (where it is still in force) existing Complex Change guidance are as follows.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
In Mogane v Bradford Teaching Hospitals NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered whether it was fair to dismiss a nurse as redundant on the basis that that her fixed-term contract was due to expire before that of her colleague.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.
On Saturday 15 October a wave of light swept the internet when thousands of people flooded social media with pictures of candles to remember the babies that they have lost. This event signifies the end of Baby Loss Awareness Week which aims to break the silence that is associated with baby loss in pregnancy and infancy.
The Coronavirus Act 2020 allowed any registered medical practitioner to sign a medical certificate of cause of death (“MCCD”), even if the deceased was not attended to during his or her last illness and not seen after death, provided that the medical practitioner could state the cause of death to the best of their knowledge and belief.
In our latest Shared Insights session, Focus on Emergency Medicine, chaired by Jennifer Fagin and Amelia Newbold, we were pleased to be joined by: Dr Alex Crowe, Deputy Director Incentive Schemes & Academic Partnerships, NHS Resolution and Consultant Nephrologist and Miss Susie Hewitt MBE, Consultant in Emergency Medicine, University Hospitals of Derby and Burton NHS Foundation Trust.
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
On 7 July this year, NHS England published its statutory guidance for Integrated Care Boards (ICBs) and with it set out the ICBs’ role and responsibilities and how they should collaborate, interact and carry out their anti-fraud, bribery and corruption functions in concert with NHS England.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.