Graham v Central Manchester Healthcare Trust

On an application for permission to appeal a case-management decision, the Court of Appeal will recognise that it should interfere cautiously, particularly where the decision was made shortly before trial. Permission may nevertheless be granted where the proposed appeal has a real prospect of success and can be heard without disrupting the trial. Relevant considerations may include the materiality of a distinction between expert disciplines, the availability of suitable experts, the time available to answer expert evidence, and the procedural history. Granting permission determines only the threshold issue and does not decide the substantive appeal.

The claimant brought a medical negligence action concerning bowel surgery and the assessment of her life expectancy. During case management for an imminent trial, a district judge permitted reliance on psychological expert evidence and permitted the defendant to instruct a psychologist, or Dr Lurie on joint instruction. The defendant instead instructed Dr Stern, a psychiatrist, whose report was served five days late.

Mr Justice Hunt refused permission to rely on Dr Stern’s evidence, referring generally to the history of the matter. He also refused permission to appeal, apparently understanding the application to concern other witnesses. The defendant made an emergency application in the Court of Appeal. The central issue was whether the proposed appeal concerning Dr Stern had a real prospect of success.

1. Permission granted. The Court of Appeal granted permission to appeal against the refusal to allow reliance on Dr Stern’s evidence. The court stressed that it would not lightly interfere with a case-management decision made late in the preparation for trial, particularly where intervention might prevent the trial from proceeding as scheduled.
2. The proposed appeal nevertheless had a real prospect of success. The court considered that the apparent case for admitting the evidence was strong because the proposed grounds identified no relevant distinction, in the circumstances, between a psychologist and a psychiatrist; the relevant experts formed a very small pool; Dr Lurie could address Dr Stern’s report within the available period; and the claimant’s side had introduced the issue only recently and obtained permission to rely on the evidence on 3 September 2001.
3. The court expressly recognised that it had not heard or read anything from the claimant’s side on the issue. Its decision therefore concerned permission only and did not determine the substantive admissibility or weight of Dr Stern’s evidence.
4. Arrangements were to be made for the short appeal to be heard urgently so that the trial could proceed within its allotted period. The order was: permission to appeal granted; costs in the appeal; the respondent permitted to lodge brief written submissions by 4.00 pm on 16 November 2001; and liberty to apply.

• High Court of Justice, Queen’s Bench Division: Mr Justice Hunt made a case-management order on 29 October 2001 refusing the defendant permission to rely on Dr Stern’s evidence. Permission to appeal was refused, apparently because the application was understood to relate to other witnesses.
• Court of Appeal (Civil Division): On 13 November 2001 Lord Justice May granted permission to appeal on the Dr Stern issue and directed that the appeal be arranged urgently.