Kirkman v Euro Oxide Corporation (CMP Batteries Ltd.)

At the permission stage, the Court of Appeal does not determine whether a disputed witness statement is admissible. A professional witness’s account of what the witness would have done in a hypothetical situation may be evidence of fact rather than expert opinion, so the issue can be arguable. On a second appeal, permission may be granted where the appeal raises an important point of principle or there is another compelling reason for the court to hear it. A judge may determine an admissibility issue before trial and is not bound by an earlier district judge’s case-management decision.

The claimant sought renewed permission to appeal against a Bolton County Court decision by His Honour Judge Warnock. The lower court had held that a statement from an orthopaedic surgeon, addressing whether he would have advised surgery absent the claimant’s accident, was expert evidence and therefore fell within a case-management direction limiting the claimant to one orthopaedic expert.

The claimant relied on Bolitho v The City and Hackney Health Authority [1997] UKHL 46 and argued that the statement was factual evidence about a hypothetical event. The central issues were whether the point was arguable, whether the requirements for a second appeal were met, and whether the admissibility question could properly be decided before trial.

1. Permission. The renewed application was granted, but only on ground 3. The court was just persuaded that the issue raised an important point of principle and/or that there was another compelling reason for the appeal to be heard. The application did not finally determine the admissibility of the statement.
2. Nature of the evidence. The submission that a professional witness may give factual evidence about what the witness would or would not have done in a hypothetical situation had considerable force. The fact that the witness is a doctor or other professional does not necessarily make the evidence expert evidence. The court nevertheless reserved the question because the respondent was not represented and the issue had not been fully argued.
3. Pre-trial determination. The grounds alleging that the county court judge should have left admissibility to the trial judge had no prospect of success. The judge was entitled to decide the admissibility issue and was not bound by the district judge’s earlier case-management decision.
4. The order was therefore: application granted, with permission confined to ground 3.

• Court of Appeal (Civil Division): renewed application for permission granted only on ground 3. The court considered that the proposed appeal raised an important point of principle and/or involved another compelling reason for the court to hear it.
• Bolton County Court: His Honour Judge Warnock held that the disputed statement was expert evidence and could not be relied on because the directions limited the claimant to one orthopaedic expert.
• Bolton County Court: the district judge had directed that admissibility should be decided by the trial judge; the county court judge subsequently decided the issue himself.