Wright v Basildon and Thurrock Hospital NHS Trust

Summary judgment may be granted where the claimant has no real prospect of succeeding on the relevant claim or issue and there is no other compelling reason for a trial. A prospect is real only if the case is better than merely arguable; false, fanciful or imaginary prospects are disregarded. In a clinical negligence claim, allegations that treatment fell below an acceptable standard require supporting evidence. The court may assess the evidence available for trial, including the effect of an expert’s inability to give sworn evidence or face cross-examination. Case-management considerations, including fairness, proportionality, expedition and proper use of court resources, are relevant but do not prevent summary judgment where the evidential case has no real prospect of success.

The claimant brought a clinical negligence claim arising from surgical treatment for severe acute pancreatitis at the defendant’s hospital in 2004. The defendant admitted breach of duty in relation to the retention of part of a laparostomy bag, and judgment had already been entered on that issue with damages to be assessed.

The remaining allegations concerned surgery allegedly performed without consent, unnecessary surgery, and barbaric or experimental surgery. The claimant’s expert had withdrawn and had not met the defendant’s expert. An application to instruct a replacement expert and extend time had been dismissed by Master Yoxall, and the claimant was debarred from adducing oral expert evidence. The defendant applied for summary judgment on the outstanding issues under Part 24.2, in parallel with an application under Part 3.4.

1. The applications to adjourn the trial and to instruct a further expert were dismissed. They were made only three working days before trial, after the earlier application to change expert had been refused and without any application to vary or set aside that order.
2. Under Part 24.2, summary judgment may be entered where the claimant has no real prospect of succeeding on the claim or issue and there is no other compelling reason why it should be disposed of at trial. A real prospect must be better than merely arguable; false, fanciful and imaginary prospects are insufficient.
3. For the purposes of the application, the court assumed in the claimant’s favour that the written evidence of his former expert would be admitted at trial. That evidence would not be sworn or tested by cross-examination, whereas the defendant’s expert and treating doctors would give sworn evidence.
4. On that evidential basis, the claimant had no real prospect of discharging the heavy burden of proof applicable to the outstanding clinical negligence allegations. The court had regard to the overriding objective, fairness, expedition, proportionality and the proper use of court resources, but those considerations did not justify a trial where the evidential case could not realistically succeed.
5. Summary judgment was therefore entered for the defendant on all outstanding issues. The admitted breach issue remained subject to assessment of damages.