Charnock and others -v- Rowan and others [2012] EWCA Civ 2

Guidance from the Court of Appeal on reliance on hearsay evidence when the document containing that hearsay evidence is included in the agreed trial bundle.

D’s vehicle was involved in a collision with a bus, the repairs to which cost £427.50. Fourteen passengers on the bus claimed to have suffered whiplash injuries.

D adduced expert evidence at trial from an engineer in terms that there could not have been enough force in the collision to cause any injury, let alone to 14 passengers. The judge at first instance rejected this evidence.

The second limb of D’s case was that the inconsistencies in the accounts given by the various Claimants to D’s medical expert was such that their evidence could not be believed.

At trial the Claimants were cross-examined at length and passages from D’s medical reports were put to them to highlight the inconsistencies across the evidence given by the various Claimants.

No objection was made on behalf of the Claimants but in his judgment the trial judge at first instance indicated that he was not happy that D had deployed those tactics without explicit notice to the Claimants.

The judge at first instance referred to the judgment of Buxton LJ in the case of Denton Hall -v- Fifield [2006] EWCA Civ 169 in which he stated “... a party who seeks to contradict a factually pleaded case on the basis of medical records or reports should indicate that intention in advance, either by amendment of his pleading or by informal notice”. On this basis the trial judge held:

  • the Claimants had been denied the opportunity to cross-examine D’s medical expert at trial;
  • this undermined the weight that he should attach to D’s case;  
  • that the evidence of the various Claimants was credible and he found in their favour.

D appealed to the Court of Appeal on the grounds that there was no procedural defect in the presentation of their case and contended that, by virtue of CPR32 PD27.2, the inclusion of D’s medical reports within the agreed trial bundle rendered those reports admissible as evidence of the truth of their contents. As such, it was further submitted by D, the judge at first instance had no power to dilute the value of the cross-examination of the various Claimants.

The Court of Appeal, while having sympathy with D’s submissions regarding the interpretation of the CPR, dismissed the appeal on the grounds that there was no evidence within the judgment of the judge at first instance to suggest that he had based his findings on any devaluation of the evidence from the Claimants as a consequence of the cross-examination by D.