Parkin & Anor v Bromley Hospitals NHS Trust

A trial judge may permit or refuse further evidence in the exercise of the court’s general case-management discretion, even where the parties have agreed the future conduct of litigation and that agreement has been recorded in a consent order. Where a party seeks to reopen an issue agreed for several years, particularly shortly before trial and on evidence previously available, a high degree of cogency is properly required. A substantial increase in the multiplicand does not, by itself, justify reopening an agreed multiplier. Public bodies litigating in the courts are subject to the same procedural rules as other litigants.

The claimant suffered severe brain damage during childbirth. Liability was admitted. During a quantum trial, the parties agreed and the court approved arrangements concerning future care, normal life expectancy and the applicable multiplier, with the case adjourned for later assessment.

The defendant later sought permission to introduce further expert evidence challenging life expectancy and to raise related issues, relying on an alleged major change of circumstances and the substantial increase in the damages claim. Buckley J refused permission for the principal evidence but allowed two further witnesses to be called. The defendant appealed, and the claimant cross-appealed. The central issues were the construction and effect of the consent order and the proper exercise of the trial judge’s discretion.

1. Appeal dismissed. The exchanges preceding the order did not reserve a right to introduce new expert evidence challenging the previously agreed life expectancy. The reference to evidence currently before the court contemplated physical developments in the claimant’s condition before the resumed hearing, not a later change of expert opinion or the discovery of evidence which could have been obtained earlier.
2. The judge retained a general discretion to control the conduct of the trial. It was legitimate to require a high degree of cogency before permitting evidence intended to reopen an issue agreed for several years, especially where the evidence had been available from the outset, the application was made shortly before trial, and the agreement had materially structured the litigation.
3. The judge was entitled to consider the defendants’ delay, their attempt to go back on an agreed order, the disruption and additional stress caused by reopening the issue, and the need for the fair and convenient administration of civil litigation. The large increase in the claim, caused principally by evidence concerning the multiplicand, did not itself justify reopening the multiplier or life-expectancy issue.
4. Gale v Superdrug Stores Plc [1996] 1 WLR 1089 concerned withdrawal of an admission at the pleadings stage and did not constrain the judge’s discretion in the materially different circumstances of this case.
5. Cross-appeal dismissed. The order limiting further evidence did not constitute a contractual arrangement which deprived the judge of discretion. It was an arrangement for the future conduct of the litigation and fell within the second category described by Lord Denning MR in Siebe Gorman [1982] 1 WLR 189. The judge therefore had power to admit the evidence of the speech and language therapist and case manager, and his exercise of that discretion could not be criticised.

• Court of Appeal (Civil Division): dismissed the defendant’s appeal and the claimant’s cross-appeal.
• High Court of Justice, Queen’s Bench Division: Buckley J refused permission for the principal further expert evidence but permitted two additional witnesses to be called.