Roberts & Anor v Williams & Anor

At the permission stage of a second appeal, an important practice issue concerning sensitive medical evidence should be considered by a properly constituted court rather than conclusively determined by a single judge. The issue arose because a party wished to rely on a medical report which was not disclosed to the opposing party. The Court of Appeal did not decide whether the late evidence should be admitted. Permission was granted conditionally on payment of specified earlier costs within 14 days, failing which permission would lapse.

The claim concerned an alleged interference with the claimants’ right of way over an access drive. The defendants sought to rely, shortly before trial, on a statement from Mrs Williams describing conversations with the claimants’ solicitor and asserting that she had been unable to provide a statement earlier because of ill health.

District Judge Godwin refused permission to adduce the statement, principally because it raised a new issue, was unsupported by medical evidence and threatened the imminent trial date. Judge Denyer QC dismissed the defendants’ appeal, observing that the medical report shown to him could not fairly be considered without disclosure to the claimants. The defendants sought a further appeal. The central issue was whether the late evidence should be admitted, potentially subject to costs sanctions, and how sensitive medical evidence withheld from the opposing party should be handled.

1. Permission granted conditionally. Lord Justice Brooke considered that the proposed second appeal raised an important practice issue which should not be determined by a single member of the Court of Appeal.
2. The issue concerned the proper approach where a party is so sensitive about her state of health that she does not wish the opposing party to see medical material relevant to an application to adduce late evidence. The court also had to consider whether, since the trial date had already been lost, the evidence should be admitted subject to appropriate costs sanctions.
3. The Court of Appeal did not determine the merits of the application to adduce Mrs Williams’s statement. Nor did it decide whether Judge Denyer or District Judge Godwin had reached the correct final conclusion. Those matters were left for the appellate court hearing the appeal.
4. Permission to bring the second appeal was granted on condition that the defendants pay the claimants, within 14 days, the costs ordered by District Judge Godwin on 22 January and 28 April 2004, namely £297.86 and £1,137.77. If the total sum was not paid to the claimants’ solicitors within that period, permission would lapse.
5. The appeal was directed to a three-judge court, one member of which should have expertise in the CPR; a High Court judge could be included.

• Court of Appeal (Civil Division): Permission for a second appeal was granted conditionally on payment of specified costs within 14 days, with the appeal directed to a three-judge court.
• Swansea County Court: Judge Denyer QC dismissed the defendants’ appeal against District Judge Godwin’s refusal on 22 April 2004 to permit Mrs Williams’s late witness statement to be adduced.
• District Judge Godwin: Refused permission to adduce the statement shortly before trial. An earlier application to amend the defence had also been refused on 22 January 2004.