Hughes v Lloyds Bank Plc

At the strike-out stage, a claim should proceed where duty, breach or causation remains genuinely arguable. Whether a claimant would have acted differently without negligent medical advice is ordinarily a fact issue requiring evidence and cross-examination. Witness immunity is confined by its policy purpose. It protects work sufficiently connected with giving evidence in court, including necessary preparation, but not every report made in contemplation that litigation might follow. An expert’s work is assessed by its principal purpose and the facts. A medical report prepared by a treating doctor to assist settlement, before proceedings and without preparation of a proof or trial evidence, is not immune merely because proceedings might later be issued.

The appellant was injured in a road traffic accident and later settled her claim against the other driver for £600. She alleged that reports and a prognosis prepared by her general practitioner were negligent and caused her to settle for less than the proper value of the claim.

The doctor had died, and the action was brought against the administrators of his estate. The Newport County Court struck out the claim, holding that it was bound to fail on causation and that the reports were protected by witness immunity. The appeal concerned whether those conclusions could properly be reached without a trial and whether the reports fell within the immunity.

1. Strike-out and causation. The appeal was allowed. It was at least arguable that the doctor owed a duty to take reasonable care in describing the appellant’s condition and giving a reliable prognosis, and that he had breached that duty. Those issues had not been finally determined.
2. The causation issue could not be resolved solely from the documents. The appellant said that she relied on the reports in settling; the respondent contended that financial pressure would have led her to settle regardless of the medical advice. That factual dispute required the appellant’s evidence, cross-examination on the correspondence and a judicial assessment of the competing accounts. The judge’s conclusion that the claim was bound to fail was therefore premature.
3. Witness immunity. The immunity of judges, advocates and witnesses, including expert witnesses, is founded on the public policy of protecting the administration of justice. It extends beyond acts performed in court, but only to work sufficiently connected with the performance or preparation of the court role. Watson v McEwan [1905] AC 480, Evans v London Hospital Medical College (University of London) [1981] 1 WLR 184 and X (Minors) v Bedfordshire County Council [1995] 2 AC 633 illustrated the limited extension beyond the courtroom.
4. Following the approach in Palmer v Durnford Ford [1992] QB 483, the question is whether the work was fairly preliminary to giving evidence, assessed by its principal purpose and the facts. A report prepared for disclosure in existing proceedings may be immune, but that principle must be read in its procedural context.
5. The reports here were requested by the patient, before proceedings, to assist negotiation of a settlement. The doctor was not asked to prepare a proof, give evidence or produce a report for disclosure, and he did not consider a further examination necessary. The reports were not preliminary to expert evidence and were not covered by witness immunity. The matter was remitted to the County Court to proceed. The appeal was allowed with costs here and below, subject to legal aid taxation.

• Court of Appeal (Civil Division): In [1997] EWCA Civ 2623, Lord Bingham CJ, Morritt LJ and Buxton LJ allowed the appeal with costs here and below, subject to legal aid taxation.
• Newport County Court: His Honour Judge D Glyn Morgan upheld the strike-out, finding that the claim was bound to fail on causation and that the doctor’s reports were immune. This followed Deputy District Judge Parsons’ order striking out on immunity while declining to strike out on the alternative abuse-of-process ground.