The Claimant worked as a bus driver for the Defendant. He underwent a knee replacement operation in December 2005 and returned to work in June 2006. Upon his return to work the Claimant suffered from significant pain, swelling, and discomfort in his knee. He alleged that the Defendant was negligent in giving him a manual rather than an automatic transmission coach to drive.
The Claimant and Defendants were given leave to obtain separate orthopaedic reports commenting upon the Claimant's alleged knee pain. The joint statement of the medical experts was unsupportive of the Claimant's case as they agreed that the Claimant's symptoms were not caused by his return to work.
The Claimant's solicitors recognised that their client's case would fail, and in light of this instructed another orthopaedic surgeon, Mr Banks. This report was supportive of the Claimant's claim and his solicitors duly applied for permission to rely upon the report of Mr Banks at trial in place of their original expert.
The Claimant's application was refused by the District Judge on several grounds, including the additional delay it would cause, the significant extra costs, and proportionality (the value of the claim was small).
The Claimant appealed against the decision. HHJ Corrie allowed the appeal.
The Defendant appealed against the decision of HHJ Corrie to the Court of Appeal.
The Court of Appeal made it clear that whether to permit a party to adduce expert evidence is a case management decision entrusted to the first instance Judge. The Judge must of course exercise their discretion in accordance with the overriding objective, which is to deal with cases justly. However, the Court is and should be less ready to allow a very late amendment than it used to be in former times.
The Court of Appeal found that there had been no flaw in the DJ's exercise of his discretion sufficient to allow the Circuit Judge to interfere with it. The Defendant's appeal was allowed.
