Defenders should seize the opportunity to seek assertive case management of complex negligence claims, following Lord Glennie’s comments in JD v Lothian Health Board [2017] CSIH 27.

JD, a party litigant, sued Lothian Health Board in the Court of Session. He alleged his consultant negligently misdiagnosed him with hypogonadotrophic hypogonadism, a condition where a lack of testosterone causes small testicles, abnormal body appearance and sexual dysfunction. The Health Board took the case to debate, arguing JD’s case was legally irrelevant. He made no relevant allegations of breach of duty; he had not offered to prove the cause of his low testosterone; and he claimed only for emotional upset. Without any physical injury, emotional distress not amounting to a psychiatric condition does not sound in damages.

At first instance, the court agreed with the Health Board and dismissed the case.

JD appealed to the Inner House and his case came before Lord Brodie, Lady Clark and Lord Glennie. He argued that he had an independent medical expert, a Dr Quinton, who agreed he had been misdiagnosed and was willing to speak to the court.

The Inner House examined JD’s written case closely. He had quoted Dr Quinton as saying, “I could show a photo of your testicles to every expert around the world and not one of them would diagnose you with hypogonadism.” Affording JD some considerable leeway as a party litigant, all three judges were satisfied he had said enough to make a relevant case under Hunter v Hanley. They considered Dr Quinton’s quote could be construed as meaning no reasonable doctor would diagnose hypogonadism if acting with reasonable skill and care.

However, the appeal was dismissed by a 2-1 majority. Lord Brodie and Lady Clark agreed that, as JD claimed only for emotional upset, he had failed to show any recoverable loss and therefore his claim was irrelevant. Lord Glennie disagreed. He found that, as the emotional upset arose from continued abnormal bodily appearance and sexual dysfunction, there had been physical injury and the loss was relevant. He would have allowed the appeal and sent the case back for a case management hearing.

Lord Glennie, supported by Lady Clark, also stressed a wider need for pro-active case management. He observed the rules under Chapter 42A afford judges wide-ranging case management powers in complex negligence claims. Before allowing a case to go to proof, the judge must consider whether there is a relevant case supported by expert evidence, and likewise a relevant and supported defence. If not, the judge can make orders for the pursuer (or defender) to provide further specification and lodge expert reports. If a party failed to comply, the other could seek decree in default. Lord Glennie also reminded parties that, where a claim for professional negligence is not supported by an expert report, the court has an inherent power to dismiss it as an abuse of process.

Case management orders provide a real opportunity for defenders. The smart defender will scrutinise the pursuer’s pleadings early and, where they are found wanting, attend case management hearings armed with a shopping list of points for further specification. Where expert reports are inadequate or missing altogether, the savvy defender will highlight this and seek orders for adequate reports to be lodged within a reasonable time. If the pursuer does not comply, they may face decree in default. For the defender, this is an attractive alternative to the traditional route of a protracted and costly debate.

Not every judge will be as proactive, but Lord Glennie’s comments are an open invitation to defenders to make better use of the court’s powers through assertive case management. If JD had been ordered to produce Dr Quinton’s report, perhaps his case would have been resolved at a much earlier stage, avoiding great public expense.