A defendant who fails to provide court with demonstrable expert evidence in support of a causation defence being maintained in a clinical negligence claim, and in the context of an application for an interim payment made by a claimant runs a real risk of an interim payment award being made. That was the net result of the decision in Claire Sellar-Howling v Dr. Sarah Howling [2016] EWHC 443 (QB) decided at first instance by Master Cook in the Queen's Bench Division and upheld on appeal by Mr. Justice Sweeney.

The underlying claim centres on a failure to correctly diagnose a malignant tumour located on the left lobe of the claimant's liver.

The Defendant had made admissions on breach of duty.  However, the pertinent issue, for purposes of the Claimant's application for an interim payment, was the causation defence maintained within the Defence.  That centred on the Claimant's case that the mass had become malignant during the period of delay, where it had previously been benign.  The Defendant's causation position was that the tumour had always been malignant and, as a result, that the Claimant's treatment and pathway would have been almost identical. 

The Claimant, in advance of the application for an interim payment (which was heard in October 2015), had unilaterally served her liability expert evidence, particularly from Professor Middleton, expert oncologist.

The Directions set previously by the Court provided for the exchange of liability experts evidence in December 2015 i.e. some weeks after the hearing of the Claimant's application for an interim payment.  Pursuant to the causation defence pleaded within the Defence, the Defendant intended to serve supportive liability expert evidence by December 2015 i.e. in accordance with the Directions set by the Court.

The First Instance Decision

At First Instance, Master Cook awarded an interim payment of £100,000.

That decision was seemingly based on the absence of any compelling evidence from the Defendant before the Court to rebut the application and the evidence of Professor Middleton which Master Cook found to be 'formidable'.

Master Cook having referred to the decision of Popplewell J in Smith -v- Bailey [2014] EWHC 2569 (QB) noted that on an interim payment application, there was an evidential burden on the defendant to put before the Court material raising the issue of contributory negligence and that the task of the Court was to apply the relevant legal test to the evidence before him.

Master Cook concluded that because the Defendant had failed, in reply to the application, to adduce any expert evidence from their own expert, or to set out the thrust of their expert evidence in the witness statement filed, he was obliged to find in favour of the Claimant on their application given the force of the arguments made by the Claimant's expert oncologist.

The Defendant sought permission to appeal, that application being considered by Sweeney J on 3 March 2016.  The Defendant appealed on the basis that there was no requirement to have served expert evidence at the time of the application, and that an interim payment should not be used as a vehicle to force the Defendant to produce evidence before exchange.  Accordingly, it was not appropriate for the Court to conclude that the Claimant would succeed in recovering damages.

The Appeal Decision

The First Instance decision was upheld by Mr Justice Sweeney who refused the application for permission to appeal on the basis that Master Cook's decision and reasoning was correct.

Analysis

This decision feels wrong though it is true that there are a couple of ameliorating factors that may be relevant to this specific case.  They are that the Defendant:

  • Had admitted breach of duty within the pleadings.
  • Had previously (voluntarily) made an interim payment in the sum of £17,500.

Both of the above may tend towards a view that the Claimant was going to receive a substantial award of damages.  The case may be understood in the above context.  However, the principles which underpin the application, the decision and the grounds of appeal warrant further scrutiny.

That must be so where if the Court cannot find that the causation defence is doomed to fail, it cannot simultaneously hold, as is required under CPR 25.7 (c) that:

(c) it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment;

The practical proof of that is that most such awards are made only against a backdrop of Judgment having been entered against any such Defendant.

In this case, the Defendant:

  • had pleaded a causation Defence (verified by a statement of truth),
  • had permission for the relevant expert, and
  • was due to serve that expert evidence several weeks later. 

This decision is therefore of concern where it appears to suggest that the time for service by a defendant of their expert evidence may effectively be brought forward by a claimant who makes an application for an interim payment.

Advice

There are a number of legal, evidential and procedural arguments that may be raised against the decision.  These include the apparent lack of any distinction being drawn by the Court between allegations of contributory negligence and a causation defence in respect of the burden of proof.  The former rests with the Defendant raising the contributory negligence allegations, the latter with the Claimant to prove their case.  It is unclear how the Court could reach any such view even before the Defendant has provided expert evidence in support of any pleaded causation Defence.

There is also the somewhat uncomfortable point that the Defendant was still within the permitted period to serve such expert evidence that the Court accepted may yet undermine the Claimant's expert evidence.  That leads to a concern about how it is possible to reconcile the Court's acceptance that the Defendant may serve such expert evidence with a finding that that if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (i.e. CPR 25.7 (c)) and to grant to the application.

Until these questions are answered in subsequent decisions (or any further appeal) it will now be necessary as a safety mechanism to produce a summary – whether by way of a short letter from the appropriate expert or to specifically set out the expert's opinion in any witness statement in response to an application for an interim payment made by a claimant.  It is however, seemingly to allow the Claimant a peek behind the curtain before curtain-up.