Smith v Newcastle Health Authority

On a renewed application for permission to appeal, the court should refuse permission where the proposed appeal has only a fanciful prospect of success. The applicant need not show a strong prospect at that stage. A proposed appeal concerning findings of fact may nevertheless pass the threshold where the first-instance judge appears to have misdirected himself on material evidence, particularly where the subject matter is unusual and the evidence requires appellate scrutiny.

The claimant suffered brain damage following birth. The issue at trial was whether excessive administration of oxytocin had caused negligent hypoxic-ischaemic injury before birth. The recorder accepted that there had probably been an intra-uterine recovery, despite inconsistencies between the timing of the injury and the child’s Apgar and pH scores, and dismissed the claim.

The recorder refused permission to appeal. Mance LJ also refused permission on paper, considering the proposed grounds to concern findings of fact with no real prospect of success. On renewal, the appellant argued that the recorder had overlooked two material matters: further epidural administrations and expert evidence concerning the frequency of contractions. The central issue was whether the proposed appeal crossed the permission threshold.

1. Application granted. The renewed application for permission to appeal was allowed, with costs in the appeal.
2. At the permission stage, the court was concerned with whether the proposed appeal had more than a fanciful prospect of success. The applicant was not required to demonstrate that the appeal had a strong prospect of success. The threshold was explained by Lord Woolf MR in Swain v Hillman.
3. The fact that the proposed appeal challenged findings of fact was not conclusive. Permission could properly be granted where the first-instance judge appeared to have misdirected himself on material evidence.
4. Here, the recorder appeared to have misunderstood the evidence concerning the timing of epidural administrations and to have overlooked accepted expert evidence about the frequency of contractions immediately before birth. The rarity of the alleged intra-uterine recovery also justified allowing the proposed appeal to be considered, although the court emphasised that the appeal did not have a strong prospect of success.

• Court of Appeal (Civil Division): renewed application for permission to appeal granted; costs in the appeal.
• High Court of Justice, Queen’s Bench Division: Mr Recorder Stuart Brown QC, sitting as a deputy High Court judge, dismissed the claim and refused permission to appeal. No citation for that decision was stated in the judgment.
• Permission application on paper: Mance LJ refused permission, considering the issue to be one of fact and identifying no real prospect of success or other compelling reason.