William Brian Anderson v Blackpool, Wyer and Fylde Community Health Services NHS Trust

Permission to appeal and permission to adduce late evidence are discretionary matters governed by the overriding objective. Evidence tendered during trial should be admitted only where its significance justifies the additional investigation and prejudice caused to the opposing party. A judge may refuse evidence that is confirmatory, insufficiently explained, and likely to cause prejudice. An appellate court should not interfere with an assessment of witness credibility and employment prospects where the trial judge considered the competing evidence and gave clear, rational reasons for preferring one witness.

The claimant brought negligence proceedings against an NHS Trust after a misdiagnosis led to inadequate treatment for post-traumatic stress disorder. The trial judge found that continuing disability after 1999 was caused by the breach, but assessed the claimant’s chance of returning to seagoing employment at no more than 20 per cent.

During the trial, the claimant sought to introduce a statement from Paul Willis, a witness known to his solicitors since 1997. The judge refused the application as too late. The claimant also challenged the judge’s preference for the defendant’s employment evidence. The renewed applications concerned whether the late evidence should have been admitted and whether the assessment of employment prospects was open to challenge.

1. Late evidence. Under Civil Procedure Rules CPR 32.10, permission was required to call a witness whose statement or summary had not been served within the specified time. The discretion had to be exercised consistently with the overriding objective, including dealing with the case expeditiously and fairly to both parties.
2. The judge was entitled to refuse the evidence. It was presented as confirmatory rather than materially significant, no satisfactory explanation for its lateness was given, and the defendant would have needed time to investigate it and might have altered its cross-examination of earlier witnesses. The White Book passage based on Mealey Horgan Plc v Horgan did not give a party a general opportunity to assemble its case after the trial had begun. Justice might require late evidence in an appropriate case, but its significance had to outweigh the prejudice caused.
3. Assessment of employment prospects. The trial judge was entitled to prefer Mr Haworth’s evidence. He had substantially greater experience in recruiting seafarers, including for offshore companies, while the claimant’s witnesses had not encountered a seafarer with a drugs conviction or had limited recruitment experience. The judge gave clear and rational reasons for his preference.
4. The evidence justified the assessment that the claimant had no more than a 20 per cent chance of returning to sea absent the breach. There was no real prospect of successfully challenging either decision. The renewed applications for permission to appeal and to admit Mr Willis’s evidence were refused, and the claimant was ordered to pay the respondent’s costs.

• Court of Appeal (Civil Division): [2002] EWCA Civ 1247. Renewed applications for permission to appeal and to admit late evidence were refused.
• High Court of Justice, Queen’s Bench Division, Manchester District Registry, His Honour Judge Fawcus: the judge refused admission of the late evidence and assessed the claimant’s chance of returning to sea at no more than 20 per cent.