Ahmed v Coleman & Anor

An appellate court should uphold a lower court’s case-management decision unless it was clearly wrong, involved an error of law, or was affected by a serious procedural mishap. This restraint supports the authority of first-instance judges under the civil procedure regime, while preserving appellate intervention to prevent serious injustice.

A court may refuse fresh expert evidence where the party failed to make a properly supported application below, sought a replacement after receiving an unfavourable opinion, and the proposed evidence was unlikely to affect the outcome. The principles governing fresh evidence on a conventional appeal do not apply strictly to such a case-management application, but may inform the exercise of discretion.

The claimant brought a solicitors’ negligence action arising from the loss of an opportunity to claim damages for a workplace accident. After his medical expert answered that a later disabling episode was unrelated to the accident, the claimant sought permission to rely on another expert.

District Judge Sankey refused permission because the proposed expert had not yet been instructed, his likely opinion was unknown, and the application appeared to be a fishing expedition. Judge Nichol dismissed the claimant’s appeal and refused to admit a report subsequently obtained from Professor Emery.

The claimant brought a second appeal to the Court of Appeal. The central issues were whether the lower courts had exercised their case-management discretion wrongly and whether excluding the new expert evidence caused serious injustice.

1. Appeal dismissed unanimously. Lord Justice Brooke delivered the substantive judgment, with which Mr Justice Collins agreed. Judge Nichol had been entitled to uphold the district judge’s case-management decision and to refuse the new evidence.

2. The new civil procedure regime gives particular importance to the decision of the judge who makes the original case-management order. An appellate court should not undermine that authority unless the decision was clearly wrong, involved an error of law, or was affected by a serious procedural mishap. The appellate court nevertheless retains an important role in preventing serious injustice.

3. District Judge Sankey decided the application on the limited material properly placed before him. The claimant’s solicitors had not made a formal, evidence-supported application and could not say what the proposed replacement expert would conclude. In those circumstances, the district judge was entitled to regard the proposal as a fishing expedition and to refuse another expert.

4. Judge Nichol was entitled to refuse to convert the appeal from a review into a rehearing and to decline to admit Professor Emery’s report. Although the principles in Ladd v Marshall did not apply strictly, they did not prevent the judge from refusing evidence which had not been properly prepared or presented below.

5. Reading Professor Emery’s report would probably not have changed the result. His guarded opinion established only that a causal relationship was possible or more than unlikely. It did not say that the later episode was probably caused by the original accident. The proposed evidence therefore did not demonstrate an affront to justice.

6. The defendants’ solicitors had breached paragraph 4.2 of the relevant practice direction by failing promptly to copy their written questions to the claimant’s solicitors. The words of the practice direction were mandatory, and such a failure could expose solicitors to liability for resulting wasted costs. That breach did not justify allowing the appeal because the claimant’s solicitors subsequently had almost four months in which to present a proper application.

1. Court of Appeal (Civil Division): Dismissed the claimant’s second appeal and upheld Judge Nichol’s order. The claimant was ordered to pay costs, to be set off against any damages awarded.
2. Birmingham County Court, Judge Nichol: Dismissed the claimant’s appeal from District Judge Sankey and refused to admit Professor Emery’s report or convert the appeal from a review into a rehearing.
3. Birmingham County Court, District Judge Sankey: Refused the claimant permission to introduce a further medical expert and directed the existing experts to undertake the required joint process.