Chambers v Buckinghamshire Healthcare NHS Trust

[2013] EWHC (QB)

In this clinical negligence case, Chambers made an application seeking an order debarring the NHS Trust from relying upon an expert’s report served late on 25 November 2013, any further expert evidence and a counter-schedule of loss. The NHS Trust issued its own application seeking variation of an order for directions made on 31 May 2013, namely that:

  1. the Trust’s experts reports be served by 20 December 2013;
  2. the counter-schedule be served by 20 December 2013; and 
  3. that the time for discussions between the experts be  extended.

The 31 May 2013 order for directions had provided that Chambers serve its expert reports on 19 July and 9 August 2013 respectively and the NHS Trust reports were to be served by 25 October 2013. The order also provided for experts’ discussions to take place, in  the case of liability experts by 27 September 2013, and in relation  to condition and prognosis experts by 6 December 2013. Finally, the order required the parties to consider by 31 December 2013 whether the claim was capable of resolution by ADR and to conclude any form of ADR not less than 35 days prior to trial, that is by 27 January 2014 (assuming a trial date 3 March 2014).

On 28 August 2013 and 20 September 2013 respectively on the application of the defendant and without a hearing, orders were made varying the dates such that the time for exchange of liability expert evidence was extended to 21 October 2013 and the time for the service of the defendant’s condition and prognosis otolaryngology report to 21 October 2013. The order was silent in relation to the time for experts’ discussions and in relation to the service of the defendant’s counter-schedule. Chambers was given permission to apply to set aside or vary that order within seven days, but no application to apply to set aside or vary was made.

The NHS Trust failed to comply with the provisions of the order of 20 September 2013 and it did not serve its evidence as required on 21 October 2013. It seems that Chambers application seeking a debarring order spurred the Trust into making its own application although it was made over a month after the deadline for the service of expert evidence.

Unsurprisingly, the Court was referred to the robust approach adopted in the recent case of Mitchell v News Group Newspapers Ltd (see Issue 162) and Chambers submitted that there was no good reason given by the Trust for failing to comply with the order, or alternatively no good reason for making the application over a month after the deadline for service of the evidence expired. The NHS Trust made essentially five points:

  1. It pointed to an apology made by the Trust’s solicitor in her witness statement;
  2. There had been difficulty in obtaining the accident and emergency records which resulted in the  deadline for the exchange of expert evidence being put back which was a good explanation for the delay;
  3. There was no prejudice or jeopardy to Chambers in the late service of the Trust’s evidence or in permitting late service of the Trust’s evidence as the procedural timetable still had enough room to enable the consequences of the late service to be addressed;
  4. If the Trust were to be deprived of the opportunity to rely upon the expert evidence in support of its case on causation, the result would be disproportionate;
  5. A distinction could be drawn on the facts of this case between a situation where a claimant felt it necessary, because of the conduct of the claim on the other side, to come to court and obtain an unless order with a clearly specified sanction. This was not the case here. The Trust had not been in breach of an “unless order” or a “final order”.

Whilst Master Cook acknowledged that certain parts of the application were finely balanced, in relation to the third point the court held that the procedural timetable, following exchange of expert evidence, was designed to enable settlement meetings or ADR to take place and the possibility of effective part 36 offers to be made before trial. In these circumstances there may well be prejudice to a claimant if this period is unnecessarily foreshortened.

In response to the fourth point, the Court stated that this was “a fact of life in the post-Jackson world”. Similarly, the Court was not impressed with the last submission, emphasising that the deadline had already been extended three times and the application for relief was made after expiry of the deadline, both important and relevant considerations for the Court. Finally, the Trust referred to the concept of proportionality which remains at the heart of the Court’s consideration. However, here the Court, concluded that unless the Court is robust in relation to its process, the culture of delay and non-compliance with orders, will continue.

Accordingly it was Chambers’ application that succeeded.