Gough & Anor v Mummery & Anor

An appellate court will not interfere with a trial judge’s discretionary refusal to adjourn unless the decision was plainly wrong. This applies where an adjournment is sought to investigate and explain an evidential discrepancy caused by the appellant’s own advisers, particularly where the discrepancy adds little to the evidential case.

A judge must assess expert evidence in the context of the whole body of evidence. The judge is not bound to accept an expert’s opinion on causation or attribution, especially where the opinion is incomplete, inadequately related to other evidence, or contradicted by the claimant’s history and conduct.

The claimant appealed against a County Court judgment awarding damages after a road traffic accident. Liability was admitted, but the parties disputed whether psychiatric problems continuing after 1996 were caused by the accident or by later circumstances, including work-related stress.

At trial, two versions of a medical letter dated 13 October 2000 came to light. One was signed by the doctor and included in the trial bundle; the other, disclosed before trial but not included in the bundle, contained an additional diagnosis. The judge refused an adjournment and attached little or no weight to the second version. He nevertheless stated that his conclusion would have been the same whichever version he considered.

The claimant challenged both the refusal to adjourn and the judge’s treatment of the letter.

1. Appeal dismissed. The refusal to adjourn was a discretionary case-management decision. The proposed adjournment would have allowed the claimant’s advisers to investigate their own handling of two versions of the letter and put their case in order. In those circumstances, permitting it would have been a considerable indulgence. The judge was entitled to require the trial to proceed, and the decision was not plainly wrong.
2. The claimant’s reliance on prior disclosure of the longer version did not make the medical opinion unchallenged. The central question was attribution: whether post-1996 problems resulted from the accident. The expert’s opinion was relevant but not decisive, and the judge had to assess it against the whole evidence.
3. The judge was entitled to reject or substantially discount the non-bundle version of the letter. The discrepancy was unexplained, the signed version omitted the additional diagnosis, and there was no satisfactory evidential basis for determining how the two versions came into existence.
4. In any event, the treatment of the letter was not material to the result. The judge was entitled to regard the medical evidence as unsatisfactory because it was substantially out of date, did not address important changes in circumstances, lacked continuity with the earlier diagnosis, and did not adequately explain the change from one expert to another. He was also entitled to consider the claimant’s employment history, contemporaneous accounts, credibility and conduct. On the evidence as a whole, he could conclude that later psychological problems were not attributable to the accident.
5. Lord Justice Buxton agreed. He considered the judge’s addendum, stating that the result would have been the same whichever version of the letter was admitted, unusual but useful in the circumstances. The appeal was dismissed with costs.

• Court of Appeal (Civil Division): appeal from the decision of His Honour Judge McKenna sitting at Birmingham County Court; appeal dismissed with costs.
• Birmingham County Court: judgment for the claimant in the sum of £13,797.31 on 28 September 2001.