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Calden v Nunn, Court of Appeal, 19 February 2003

25 February 2003
The issues

Case Management – expert evidence – non-compliance with Directions.

The facts

The claim was brought on behalf of Amanda Calden, who died of cancer aged 29. It was alleged that her GP negligently failed to refer her for prompt specialist opinion, which otherwise it was alleged, would have led to her breast cancer being diagnosed. Liability was denied. The claim was allocated to the Multi Track. On 9th February 2001, the Consent Order set a timetable leading to a Trial Window of 5th to 26th November 2001. Each side was permitted to instruct an expert on General Practice and an expert on Clinical Oncology. A Schedule of agreed and non-agreed issues was to be filed by 5th July 2001 and a further Case Management Conference was set for 21st September. The Claimants had suggested at this stage that expert histopathology evidence would be useful but the Defendant’s Solicitors did not agree. The Claimant’s Solicitors made the same suggestion in May and June with a similar response from the Defendants. The GP experts were due to meet on 5th September 2001. Two days before, the Defendant’s Solicitors told Claimant’s Solicitors that they had instructed a Consultant Breast Surgeon and that they had postponed the discussion between the GP experts. In any event, the experts met on 17th September. At Case Management on 21st September, an Order was made permitting the Defendants to rely on the evidence of Professor Mansel, a Breast Surgeon and for the Claimant to rely on the evidence of Professor Wright, a Histopathologist. The Trial Window was not vacated but the Deputy District Judge ordered that the issues of breach of duty and causation should be tried first. No new Trial Window was set but a new timetable was given, leading to 22nd March 2002 with a Direction for further Case Management on the first date after 1st April 2002. Although an Order was made for transfer to Leeds, no transfer was effected until 9th August 2002 and nothing further happened until 20th December when Judge Grenfell picked up the file and directed a Pre-Trial Review. On the same day, an Application was made by the Defendants for permission to produce expert evidence from a Histopathologist, Professor Stamp.

The evidence of Professor Stamp was significant and differed significantly from the evidence of Professor Wright, the Claimant’s Histopathologist. The Defendant’s Solicitors were less than candid in the manner in which the instruction of Professor Stamp was carried out. No prior Applications for permission to instruct were made. The Judge refused to vacate the Trial Window or to allow the Defendant’s Application. In the Judge’s view, postponement could not be properly compensated by an Order for costs and moreover the Court had now allotted time for the Trial of the issues. The Defendants were seeking to re-open the Statement of Issues agreed and disagreed that had been drawn up by the existing experts prior to the instruction of Professor Stamp. This was contrary to Sound Case Management. The only fair way to deal with the situation the Judge found, was to allow the Defendants to submit written questions to Professor Wright. The Defendant appealed.

The decision

1. The correct approach remained as in Daniels -v- Walker. Namely, experts should be jointly instructed if possible and that thereafter if having obtained a joint expert’s report a party for reasons which were not fanciful wished to obtain further information before making a decision as to whether there was a particular part or the whole of a report which the party wished to challenge, then they should be permitted to obtain that evidence.

2. In this case it would have been far better if the Defendants had taken this route with regard to the histopathology evidence from the beginning.

3. The Judge had been absolutely correct to start by fixing a Trial Window. Too much time had been wasted already. The Judge had been correct to place an emphasis on the sanctity of the Trial Window set. He was under a duty to ensure that the case was dealt with expeditiously and fairly. A central part of the philosophy of the Rules was that cases should be managed towards the Trial Window or the Trial date.

4. The Judge had been told that if Professor Stamp’s evidence was admitted, discussions could occur with Professor Wright within a week and the 5 causation experts meet within 2 months. This was how litigation was conducted in the pre CPR days when matters were delayed until too late and party’s experts were put to inconvenience to meet the dictates of fast approaching Trials. The Judge was entitled to look at modern day realities and if in his view allowing in Professor Stamp’s evidence would mean the Trial Window would again be lost, it would be wrong for the Court of Appeal to say that he was wrong to hold that view.

5. The Defendants argued that to disallow Professor Stamp’s evidence would be manifestly unfair. However, Professor Wright owed a duty first and foremost to the Court. Questions could be asked under the Judge’s Order. At Trial, he could be cross-examined. Having regard to the Defendant’s conduct, it would be a greater unfairness to the Claimant if the Trial Window were lost, than it would be to the Defendants, were they to lose the benefit of Professor Stamp’s evidence at Trial.


Lord Justice Brooke took the opportunity to sound a blast against “all the signs of sloppy pre-CPR practice creeping back”. He went onto comment that “the authority of the designated Civil Judge in raising local standards and correcting sloppy practice is a very important feature of the new CPR dispensation, and this Court should not lightly over-ride it”.

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