Jackson v ASDA Stores Ltd

For a second appeal, permission may be justified by an important point of principle or practice or by another compelling reason. A very real prospect of success is relevant to the latter, particularly where the evidential position has materially changed. A jointly instructed expert report should be reopened only for a strong reason. Fresh evidence may be admitted where it reveals a substantial dispute and its late availability is fully and satisfactorily explained. Where a respondent has not been heard on an extension-of-time application, the issue may be preserved for reconsideration at the appeal hearing.

The defendants sought permission for a second appeal against a case-management decision by His Honour Judge Geddes, permission to rely on fresh expert evidence, and an extension of time. A Deputy Master had permitted the defendants to instruct a further medical expert, but Judge Geddes reversed that decision after considering the existing joint report, possible delay, prejudice to the claimant and the possible involvement of the National Health Service.

Before the Court of Appeal, a new report disclosed a substantial dispute about causation and the evidence showed that its earlier absence was not attributable to the defendants. The respondent did not appear. The central questions were whether the second-appeal test was satisfied, whether the fresh evidence should be admitted, and how the extension-of-time application should proceed.

1. Permission to appeal. Lord Justice Mance held that the application raised no important point of principle or practice. It nevertheless satisfied the alternative requirement of another compelling reason. The new report disclosed strong prima facie evidence of a materially different causation case, and the position had substantially changed since the decision below. A very real prospect of success was a relevant factor. Lady Justice Hale agreed.
2. Reopening the joint report. The court was reluctant to permit a jointly instructed medical report to be reopened and required a strong reason. The claimant’s earlier instruction of more than one expert did not, by itself, justify allowing the defendants to instruct an additional expert at a late stage.
3. Fresh evidence. Permission to rely on the further report was granted. The report revealed a real medical dispute, removed the previously anticipated issue concerning possible National Health Service negligence and associated delay, and was supported by a satisfactory explanation for its late production.
4. Extension of time. Practice Direction 52/PD 5.3 contemplated a respondent’s right to be heard on an extension application. Since the respondent had been served with the appellant’s bundle but had not been invited to attend, the court granted the extension while giving the respondent liberty to reopen the issue at the appeal hearing. The respondent also retained the right to apply to set aside. The application was allowed and costs were reserved.

1. Court of Appeal (Civil Division) — The applications for permission to appeal, permission to rely on fresh evidence and an extension of time were allowed; costs were reserved: [2002] EWCA Civ 1541.
2. Queen’s Bench Division, before His Honour Judge Geddes — On 22 April 2002, the judge reversed the Deputy Master’s permission to instruct a further expert.
3. Deputy Master Chism — Permission had initially been granted to instruct a further medical expert.