Willett v Vauxhall Motors Ltd

On a renewed application for permission to appeal, a transitional personal-injury case may raise an important point of practice where pre-existing expert arrangements were made before the Woolf reforms and the pre-action protocol came into force. Case-management decisions concerning expert evidence should not automatically be assessed as though the case had been initiated under the new regime. A possible imbalance between the parties’ expert evidence may provide a compelling reason for appellate consideration, although the grant of permission does not determine the merits.

The claimant’s personal-injury claim concerned competing medical opinions about whether continuing neck symptoms resulted from a workplace accident or pre-existing cervical spondylosis. Before the Woolf reforms and the personal-injury pre-action protocol, the defendants instructed a non-consultant doctor. After the protocol came into force, the claimant instructed a consultant orthopaedic surgeon, and the defendants later obtained a report from their own consultant.

The district judge and the recorder refused to permit reliance on the defendants’ consultant evidence. A renewed application was made to the Court of Appeal after permission had previously been refused. The central issue was whether the transitional circumstances justified permission to challenge that case-management decision.

1. Permission granted. The Court of Appeal held that the application raised an important point of practice within the statutory threshold for a second appeal under the Access to Justice Act and Civil Procedure Rules 1998, rule 52.13.
2. The court accepted that the case was transitional. The defendants had instructed Dr Saywood before the Woolf reforms and the pre-action protocol, whereas the claimant had proceeded under the new approach and instructed a consultant orthopaedic surgeon. That distinction arguably meant that the defendants should not be treated as irrevocably confined to their earlier expert.
3. Although the court would have refused permission if the same circumstances had arisen after the reforms, it considered it arguable that justice required a level playing field, with a consultant orthopaedic surgeon available on each side. The court referred to Daniels v Walker [2000] 1 WLR 1382, in which an appeal had been allowed to permit a defendant to obtain an expert of its choice after the claimant had used an expert under the protocol. The present case was described as different because it was transitional.
4. The court did not determine whether Mr Taor’s evidence should ultimately be admitted. It granted permission for the appeal to proceed before a two-judge court and suggested that the parties might agree to an order allowing the evidence, with appeal costs reserved to the trial judge.

• Court of Appeal (Civil Division): on a renewed application, permission to appeal was granted against the recorder’s dismissal of the defendants’ appeal.
• Wandsworth County Court: Mr Recorder O’Sullivan dismissed the defendants’ appeal against the district judge’s order.
• District judge: the defendants were refused permission to rely on the consultant orthopaedic surgeon’s evidence.