Jones v Birmingham Women's Healthcare NHS Trust

Permission to appeal should be refused where the proposed grounds do not challenge findings that independently dispose of the claim. A disclosure challenge requires identification of relevant documents capable of bearing on the issues; medical negligence questions about whether treatment was negligent may turn on expert evidence rather than further records. A late amendment adding new allegations outside the limitation period may be refused where it would unfairly prejudice the defendant. Trial judges may confine questioning to the issues while permitting relevant questions about expert credibility. A party controls which witnesses it calls, and an admission may make further evidence unnecessary.

The claimant brought a medical-negligence claim arising from the caesarean delivery of her fifth child. She alleged that the wound should have been closed with nylon stitches rather than staples and that she had not been warned of the risks of spinal anaesthesia. After a two-day trial, Birmingham County Court dismissed the claim, finding that the use of staples accorded with contemporary practice and that the claimant’s admission defeated causation on the warning issue.

She sought permission to appeal that decision and challenged earlier refusals concerning disclosure, amendment of the claim, questioning of witnesses, expert evidence, medical records, and the failure to call particular anaesthetists. The central issue was whether any ground disclosed an arguable error capable of affecting the result.

1. Disposition. The application for permission to appeal was refused. The proposed grounds did not challenge either of the judge’s two decisive findings: the method of wound closure was not negligent, and the claimant’s admission meant that any failure to warn about spinal anaesthesia caused no loss. There was therefore no realistic basis for an appeal. There was no order for costs.
2. Disclosure. The claimant was entitled only to relevant documents. She had not identified any document or class of documents capable of bearing on the issues tried. The method used to close the wound was not in dispute, and whether its use was negligent was a matter for expert medical opinion. The records could not materially assist on the anaesthetic issue because the claimant’s admission made the content of any warning immaterial. The judge’s delay in ruling on the application had caused no prejudice. The status of the person who dealt with the disclosure request and the accidental disclosure of other patients’ records were irrelevant to the claim, although the latter should not have occurred.
3. Amendment. The judge was entitled to refuse an application made at the beginning of trial to add allegations concerning failure to remove a hernia and perform a sterilisation. They were entirely new allegations, made outside the limitation period, and it would have been grossly unfair to require the defendant to meet them at short notice.
4. Trial management and evidence. The judge was entitled to confine questioning to the issues in the case. Questions about an expert’s previous experience could bear on credibility, and questions about other experts consulted by the claimant could also be relevant. An expert could support medical opinions by reference to published literature; any difficulty in understanding foreign literature did not create a point of principle. Any changes in the expert’s statements were matters for the trial judge when assessing his evidence.
5. Witnesses and human rights. It was for the defendant to decide which witnesses to call, and the court could not compel it to call the anaesthetists. Their evidence was unnecessary in light of the claimant’s admission. Nothing in the material before the court showed that reliance on human-rights arguments could assist this civil claim.

• Court of Appeal (Civil Division): Permission to appeal was refused. The court also rejected the procedural and evidential complaints.
• Birmingham County Court: His Honour Judge McKenna dismissed the medical-negligence claim after a two-day trial in September 2001 and had earlier refused the disclosure and amendment applications.