Bulter v Mount Vernon & Watford General Hospital NHS Trust

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason. Very strong prospects of success may constitute such a reason, but the prospects must be very good indeed.

Permission to adduce additional expert evidence is a case-management discretion. The court must consider all the circumstances and the overriding objective, including whether the existing single joint expert evidence was agreed, the lateness of the application, likely delay, additional expense, and the consequences for each party. Parties will not lightly be permitted to disown agreed expert evidence. The scope of written questions varies with the circumstances and may, exceptionally, extend to questions resembling cross-examination.

The claimant brought proceedings against her former employer alleging that workplace conditions caused sciatic nerve injury. The parties relied on reports from a single joint expert, Dr Kocen, whose evidence had been agreed and incorporated into the case directions.

After Dr Kocen became unavailable to give oral evidence, the defendant sought permission to rely on a report from Dr Schady, who had not examined the claimant and disagreed with Dr Kocen on causation. The District Judge refused the application, principally because the evidence had been agreed, the application was late, and allowing it would cause delay and additional expense. His Honour Judge Simmons dismissed the defendant’s appeal. The claimant sought permission for a second appeal concerning the treatment of agreed expert evidence and additional evidence.

1. Application refused. The Court of Appeal refused permission to appeal. Lord Justice Dyson gave the judgment, with Lord Justice Rix agreeing.
2. Permission for a second appeal requires an important point of principle or practice, or another compelling reason. The court proceeded on the basis that exceptionally high prospects of success might amount to a compelling reason, but they would have to be very good indeed.
3. The proposed general question concerning the unavailability of a single joint expert had no general answer. The court must consider all the circumstances and what justice requires. Relevant matters include the nature of the further questions, whether the expert can answer them in writing, whether the joint report is agreed, and the impact of additional evidence on the trial.
4. The District Judge was entitled to treat the agreement of Dr Kocen’s evidence as highly material. Courts will not lightly permit a party to disown agreed expert evidence, particularly where the application would cause delay and additional expense. The lateness of the application was also a powerful reason for refusing it.
5. Daniels v Walker [2000] Weekly Law Reports, 1382 did not govern the case. Its guidance concerned a party who disagreed with a joint expert’s report, whereas this application followed agreement of the report and a subsequent change of position. The court nevertheless emphasised that written questions approaching cross-examination may be permissible where the overriding objective requires them.
6. The possible effect on the claimant’s conditional-fee funding arrangements played little or no part in the decision and did not provide a compelling reason for permission.

• Court of Appeal (Civil Division): permission for a second appeal refused.
• His Honour Judge Simmons, sitting at Luton County Court: dismissed the appeal from the District Judge’s case-management decision.
• District Judge Rhodes: refused permission for the defendant to rely on Dr Schady’s additional expert evidence.