Mealing v Chelsea & Westminster Healthcare NHS Trust

An appellate court should not interfere with a case-management decision unless the first-instance judge applied the wrong principles, ignored or considered irrelevant matters, or reached a decision which no properly directed judge could reasonably reach.

Where expert evidence may materially assist the court or settlement negotiations, and its preparation is proportionate, permission may properly be granted even though the evidence may later prove unnecessary. Conversely, where the decision-maker has failed to consider relevant case-management factors, the appellate court may determine the application afresh.

The claimant, who had suffered catastrophic brain injury, appealed two case-management orders made in a medical-negligence claim. Liability had been admitted and the quantum trial was imminent.

The first order refused permission for expert evidence concerning an appropriate earnings-related index in France, relevant to whether any periodical payments order should be made. The second permitted the defendant to adduce expert evidence concerning the likely rewards which the claimant’s father would have obtained from establishing a hedge fund.

The central issues were whether the master had properly exercised his case-management discretion and whether the orders were within the range of reasonable decisions.

1. Appellate approach. The appeal was governed by the principle stated in Royal & Sun Alliance Insurance plc v Brian Smith and T & N Limited [2002] EWCA Civ 1964. An appellate court should not substitute its own view unless the master applied incorrect principles, took irrelevant matters into account, failed to consider relevant matters, or reached a decision which no reasonable master, properly directed, could have reached.
2. French index evidence. The master’s reference to possible further appeals in Tameside & Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5 was legitimate when made, although those appeals were no longer proceeding. However, the master’s sparse reasons did not show that he had considered the competing matters relevant to permission, including the usefulness of the evidence for settlement and trial preparation and the risk of a lengthy adjournment. The application was therefore determined afresh.
3. Permission was granted for the claimant, and the defendant if it wished, to adduce expert evidence on a French wage-related index. The evidence could assist in deciding between a lump sum and a periodical payments order, although it might prove unnecessary if the family was unlikely to remain in France. The preparation of a case on all potentially relevant issues was not disproportionate.
4. Hedge-fund evidence. The master had carefully considered the unusual size of the claims, the importance of the father’s alleged earnings, and the limited documentary evidence. There was a reasonable need for expert evidence, and its possible lack of assistance was insufficient to make permission unreasonable. That decision was a classic case-management decision with which an appellate court could not legitimately interfere. The appeal was allowed in relation to the French index evidence and dismissed in relation to the hedge-fund evidence.

High Court (Queen’s Bench Division): Appeal from case-management orders made by Master Yoxhall on 15 April 2008. Permission to appeal was granted on 23 May 2008. The appeal was allowed in relation to expert evidence on a French earnings-related index and dismissed in relation to expert evidence concerning the claimant’s father’s prospective hedge-fund rewards.