Irvine v Advanced Nutrition Ltd.

On a second appeal, permission may be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for it to be heard. These gateways are narrow. A claim may be struck out where the pleaded case and supporting medical evidence disclose no reasonable case on causation. A report which attributes symptoms to a condition predating the alleged event, without linking the injury to that event, cannot support a reasonable claim. Foreseeability need not be decided where causation is dispositive. Procedural complaints do not establish a compelling reason where the appellant had adequate notice and a fair opportunity to make written and oral submissions.

This was an adjourned application for permission to bring a second appeal from Brighton County Court. His Honour Judge Simpkiss had dismissed the appeal from District Judge Taylor’s order striking out the claim under CPR Part 3.4. The claim arose from the alleged disclosure of medical records by Advanced Nutrition Limited during earlier negligence proceedings. Mr Irvine alleged that learning of the disclosure caused physical or psychiatric injury. The issues included pleading, medical evidence, causation, foreseeability and procedural fairness. The Court of Appeal had to decide whether the proposed second appeal satisfied the statutory gateways.

Lord Justice Rix gave the judgment, with Lord Justice Gage agreeing.

1. Second appeal gateway. The court had no power to grant permission unless the proposed appeal raised an important point of principle or practice, or there was another compelling reason for it to be heard. The gateways were narrow and had to be strictly observed. A real danger of injustice could amount to a compelling reason only where there was also a real prospect of success (paras [2]–[3]).
2. Issues assumed for the application. For the purposes of the interlocutory application, the court assumed that the informal particulars sufficiently raised physical or psychiatric injury caused by shock. It also proceeded on the respondent’s acceptance that disclosure of the medical records without consent was wrongful. The substantive confidentiality issue therefore required no decision. Foreseeability was left aside because the application could be resolved on causation (paras [21]–[22]).
3. Causation. There was no medical evidence from Dr Aziz to support the claimant’s account. Dr Vinson’s report recorded a painful right elbow before the alleged disclosure and did not attribute any injury to the events of 1 February 2001. The particulars therefore disclosed no reasonable grounds for the claim on causation. There was no reasonable prospect of success, even if the matter had been a first appeal (para [23]).
4. Procedural fairness. The appellant had seven days’ notice of the original strike-out hearing and then received a fresh hearing before Judge Simpkiss. His written and oral submissions gave him a fair and adequate opportunity to address causation and foreseeability. No procedural irregularity, unfairness or error of law supplied a compelling reason for a second appeal (para [24]).

Permission to appeal was refused. Costs were summarily assessed at £4,500, inclusive of VAT (paras [25]–[26]).

• Court of Appeal (Civil Division): refused permission for a second appeal and summarily assessed costs at £4,500 inclusive of VAT.
• Brighton County Court: on 15 March 2005, His Honour Judge Simpkiss dismissed the appeal from the strike-out order.
• Horsham County Court: District Judge Taylor struck out the claim under CPR Part 3.4 on 12 November 2004. The claim had been particularised following an order under CPR 16.4.