Vernon v Bosley (No 2)

A party has a continuing duty to disclose relevant documents acquired after initial discovery. The duty ordinarily continues until the proceedings conclude. A litigant must also correct a materially false impression created by the presentation of the case where essential facts change before judgment.

The Court of Appeal may exceptionally admit evidence of post-trial events where a basic assumption underlying an award has been materially falsified. Materiality, proximity to trial, the parties’ conduct and the demands of justice inform that discretion. Reports prepared for Children Act proceedings are not protected by litigation privilege, although their contents require the family court’s permission before disclosure.

Sedley J awarded the claimant damages for psychiatric injury caused by witnessing attempts to rescue his daughters after a fatal accident. In an earlier hearing, the Court of Appeal upheld liability by a majority but reduced several heads of damage. Before its final order was drawn up, the defendant discovered evidence from separate family proceedings indicating that the claimant’s mental health and capacity had improved dramatically.

The defendant sought to reopen the appeal and adduce the later medical reports and evidence. The central issues were whether the further evidence should be admitted, how it affected damages, whether it should previously have been disclosed, and whether the claimant and his lawyers had allowed the courts to be misled.

1. By a majority, the appeal was allowed and the damages award varied. Stuart-Smith LJ delivered the leading judgment. Thorpe LJ agreed with his reasoning and result; Evans LJ dissented on the admission and effect of the further evidence, although he agreed that awards for future professional and domestic help could not stand.

2. The Court of Appeal could admit further evidence under RSC Order 59, rule 10(2). Finality remained important, but the discretion was engaged where subsequent events materially falsified assumptions underlying the award. The improvement occurred close to the trial, could not reasonably have been discovered by the defendant, and significantly affected general damages and future losses. Refusal to consider it would affront common sense and justice.

3. The claimant had substantially recovered from his disabling depression. His low-level medication and supportive treatment did not prevent normal functioning. The court consequently reduced general damages, disallowed future domestic help and gardening costs, and made a substantial allowance for earning capacity. The claimant retained the burden of proving both hypothetical earnings without injury and likely earnings after injury. Where precise evidence was unavailable, the court could make a broad assessment from the available material.

4. RSC Order 24 imposed a continuing obligation to disclose relevant after-acquired documents. The majority held that this obligation extended beyond the close of evidence until the conclusion of the proceedings. Disclosure could be made informally, and clearly privileged documents ordinarily need not be identified.

5. The medical reports prepared in the Children Act proceedings were not protected by litigation privilege. Rule 4.23 of the Family Proceedings Rules 1991 prevented disclosure of their contents without leave, but did not excuse concealment of their existence. The claimant should have sought permission from the family court, which could then determine whether release was justified.

6. A litigant must not allow the court or an opponent to remain materially misled by a case which the litigant knows no longer reflects the facts. That duty continues until judgment. Here the claimant’s condition and prognosis were essential to the presentation of his damages claim, and the subsequent evidence required correction of the impression previously created.

7. Counsel had to advise disclosure where the court would otherwise be misled. Stuart-Smith LJ considered that counsel should withdraw if the client refused. Thorpe LJ would have gone further and required counsel to disclose the material to the opponent and, absent agreement, the judge. The majority agreed that the advice actually given was a serious but conscientious error of judgment.

1. Court of Appeal: By a majority, reopened the appeal after admitting further evidence and varied the judgment below. Damages were fixed at £443,314.55 and interest at £198,179.15, totalling £541,493.70. Permission to appeal to the House of Lords was refused.

2. High Court, Family Division: Sedley J had awarded the claimant £1,332,231.59 in damages and interest. At the earlier appeal hearing, the Court of Appeal upheld liability by a majority but reduced several heads of damage. No final order had been drawn up when the new evidence emerged.