Hewes v Dr Tanna & Ors [2018] EWHC 2715 (QB) Decision to award summary judgment in a clinical negligence case overturned

The case of Hewes v Dr Tanna & Ors is one which has already caused some rumblings in the clinical negligence world.

At first instance, the Master awarded summary judgment to the Third Defendant (D3) on the basis that Mr Hewes, the Claimant (C), had shown no real prospect of establishing breach of duty against Dr Tanna, the Third Defendant (D3), a GP. In support of his application, D3 prematurely served his GP expert’s breach of duty report. However, not only was D3’s GP expert’s report served many weeks ahead of the ordered date for exchange, but also prior to exchange of factual witness evidence.

Upon receipt of D3’s export report, C then faced an invidious decision: what evidence should be served in response? The factual matrix of the claim was incomplete, the date for the summary judgment hearing was fixed for a mere 14 days after the exchange of factual witness evidence and the actual deadline for exchange of expert reports was still some 3 months away. Further, D3 was not the sole Defendant: there were 2 others involved in the proceedings.

C elected to serve a short letter from his GP expert which simply and briefly confirmed the expert’s continuing support for the pleaded claim notwithstanding the Defences. At first instance, the Master found such evidence to be insufficient to establish that C had a real prospect of success in the claim, and was not prepared even to accept that, when served, C’s evidence might raise a realistic Bolitho issue.

C proceeded to Appeal the decision and was awarded permission by Mr Justice Andrew Baker at the end of July. The Appeal and associated applications came before Mr Justice Foskett on 9 October 2018.

Mr Justice Foskett concluded that C’s Appeal should succeed. He agreed with C’s submissions that the Master’s approach to the test for summary judgment had been incorrect. In particular, the Judge concluded that the Master had failed to have sufficient regard to evidence “which can reasonably be expected to be available at trial and the lack of it”, in this case alluding, of course, to C’s full GP expert evidence.

In reaching his conclusion, Mr Justice Foskett relied, in part, upon the contents of the Letter of Claim, which had stated in express terms that there was GP expert support for C’s claim, as well as being alive to the difficulties C would face in producing a response to D3’s expert report in short order, not least the future difficulties C’s GP expert may face at Trial should there have been an omission or infelicitously expressed observation in a hastily prepared substantive response to the summary judgment application.

Ultimately, the tool of summary judgment is one which is still available in the clinical negligence practitioner’s arsenal; however, it is a tool which must be deployed with care and consideration, and most likely after the exchange of experts’ reports and production of the joint statement following the experts’ discussion. The Judge observed that: “there will be few [clinical negligence] cases, in my view, where [a summary judgment] application could ordinarily be contemplated before the relevant experts’ reports have been exchanged and, in most cases, until after the experts have discussed the case and produced a joint statement”.