Breeze v Ahmad

An appellate court may intervene where a trial judge’s assessment of expert evidence was materially influenced by scientific literature that was not produced or properly tested in evidence. The issue is procedural fairness, not the admission of fresh evidence. A party must have a fair opportunity to examine material relied on and challenge the expert’s account of it, especially where it materially affects the choice between competing experts. If the irregularity makes the decision unjust, the appeal may be allowed and the relevant issue remitted for retrial. Directions should ordinarily require experts to identify and produce literature or other material on which they rely.

The claimant, as personal representative of Leonard Breeze’s estate, brought a clinical negligence claim against his general practitioner. The trial judge found dependency and breach of duty, but dismissed the claim because causation was not proved on the balance of probabilities.

The claimant appealed on causation. The trial judge had preferred the defendant’s cardiological expert, partly because his evidence was supported by two scientific papers, neither of which had been produced at trial. The claimant argued that the papers had been inaccurately or incompletely described and that she had been denied a proper opportunity to challenge them. The central issue was whether this created a serious procedural or other irregularity making the decision unjust.

1. Appeal allowed. The trial judge’s decision on causation was unjust because his assessment of the competing expert evidence was materially influenced by two highly technical papers which had not been produced and which he accepted on trust from the defendant’s expert.
2. The case was not treated as an application to admit fresh evidence under Civil Procedure Rules 1998 rule 52.11 (2). The relevant question was whether the decision was unjust because of a serious procedural or other irregularity under rule 52.11 (3) (b).
3. The papers were introduced late and were not properly relied on in the defendant’s written submissions. Their contents, as relayed in evidence, were inaccurate and/or incomplete. The claimant therefore lacked a proper opportunity to demonstrate that the papers did not support the defendant’s expert, or might support the claimant’s expert.
4. The irregularity was material. The trial judge expressly relied on the recent literature in preferring the defendant’s expert and in undermining the claimant’s expert. It was not appropriate simply to excise the references to the literature and uphold the result.
5. The causation issue was remitted to His Honour Judge McKenna for retrial, together with consequential issues such as quantum. The parties could seek directions concerning expert evidence. It was prudent that directions should address the production of literature or other material relied on by an expert, in the form identified by Wardlaw v Farrar [2004] Lloyd’s Rep Med 98.
6. Lord Justice Sedley added that an epidemiologist or medical statistician might be better placed than cardiologists to address the causation evidence, and hoped that a straightforward approach would be taken to whether treatment would have given the deceased better than an even chance of longer survival.

Costs of the appeal were payable by the defendant, subject to assessment if not agreed. Trial costs were reserved to the trial judge.

1. Court of Appeal (Civil Division): [2005] EWCA Civ 223. Appeal allowed and the causation issue remitted to His Honour Judge McKenna.
2. Coventry County Court: The trial judge found dependency and breach of duty but held that causation was not proved on the balance of probabilities and dismissed the claim.