Calden v Dr Nunn & Partners

Case-management courts should manage proceedings towards the fixed trial window or trial date. When late expert evidence threatens that timetable, the court must weigh its importance against procedural delay, breaches, prejudice, equality of footing, the effect on an existing experts’ agreement and available alternatives. A party is not entitled to reopen an unreserved expert agreement merely because a later expert offers a more favourable opinion. The appellate court should respect the first-instance decision unless it is clearly wrong or evidently unfair. The refusal to admit the late histopathology evidence was therefore upheld.

John Calden, administrator of Amanda Calden’s estate, brought a clinical negligence claim against Dr Nunn & Partners concerning alleged failures in the diagnosis and referral of his wife’s breast cancer. At a pre-trial review, Judge Grenfell fixed a trial window for the issues of breach and causation and refused the defendants permission to rely on a late report from Professor Stamp, a histopathologist. The defendants appealed, arguing that the report was necessary for a fair trial and that the trial window should not have been fixed before the evidence application was determined. The central issues were the proper exercise of case-management discretion, the effect of the defendants’ experts’ earlier agreement and the prejudice caused by further delay.

Brooke LJ gave the leading judgment. Laws LJ and the Master of the Rolls agreed, expressly endorsing the criticism of the defendants’ solicitor and the importance of maintaining the authority of the designated judge.

1. The appeal was dismissed. Judge Grenfell was entitled to fix the trial window before deciding whether to admit Professor Stamp’s evidence. The court’s duty under Part 1 of the Civil Procedure Rules required the proceedings to be handled fairly and expeditiously. The trial window was a central feature of modern case management, particularly after avoidable delay caused by the defendants’ side.
2. In exercising the discretion concerning late expert evidence, the judge was entitled to consider the defendants’ procedural breaches, their failure to seek timely directions, the attempted reopening of their experts’ unreserved agreement, the likely loss of the trial window, and the pressure that admission of the report would impose on the claimant.
3. The position differed from the ordinary case in which parties initially instruct a single joint expert and later seek further evidence for a genuine reason. The principle in Daniels v Walker [2000] 1 WLR 1382 supported using a joint expert as the first step, subject to the court’s discretion. Here, the defendants had previously opposed histopathology evidence and had not shown a sufficient reason to reopen the agreement.
4. Refusal of Professor Stamp’s evidence did not make the trial unfair. The defendants could put written questions to Professor Wright, who could reconsider the relevant slides and blocks, and could cross-examine him. Their existing experts were not conclusively bound by their agreement under rule 35.12(5) and could explain or modify their views.
5. The Court of Appeal should not interfere merely because it might have balanced the factors differently. No sufficiently evident unfairness or clear error justified intervention. The appeal was dismissed with costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 200, the court unanimously dismissed the defendants’ appeal and ordered costs subject to detailed assessment if not agreed.
• High Court: At a pre-trial review, Judge Grenfell fixed a trial window from 5 to 23 May 2003 for breach of duty and causation and refused permission for the defendants to rely on Professor Stamp’s late histopathology evidence.