Hussain v King Edward VII Hospital

Permission to appeal on fresh evidence may be granted where the proposed evidence gives rise to a properly arguable case that it could not reasonably have been obtained for trial and may affect the decision. Evidence which was available at trial, but was not called without explanation, is not admissible as fresh evidence after judgment. The court may refuse permission in relation to such evidence while allowing a confined appeal on other evidence. Unsupported evidence from a witness unlikely to be available for cross-examination may be regarded as lacking cogency. At the permission stage, the court need not have solid confidence that the full court will admit the evidence; it is enough that admission cannot confidently be ruled out and the case is properly arguable.

The claimant brought a medical negligence claim against King Edward VII Hospital. Eady J dismissed the claim by order dated 30 November 2012, holding that the evidence did not establish bruising after the operation. Treacy LJ refused permission to appeal on the papers. The claimant renewed the application, relying on statements from a brother-in-law and a doctor, and a contemporaneous fax recording traces of blood under the skin. The central issue was whether the proposed material was sufficiently fresh, relevant and cogent to justify permission to appeal.

1. Outcome. Lord Justice Rimer granted permission to appeal, but confined it to the proposed admission of the statements of Dr Al-Abassi and Nadia Awad. Permission was refused in relation to the evidence of Hussain Baquer.
2. Evidence which could reasonably have been adduced at trial, and which was not called for an unexplained reason, could not properly be relied on post-judgment as fresh evidence. The claimant’s own witness statement had identified Mr Baquer as a witness, and there was no suggestion that he could not have been called. His evidence was therefore excluded from the proposed appeal.
3. Dr Al-Abassi’s evidence was at least arguably unavailable for trial because he was resident in Kuwait. However, the court considered that his unsupported statement, prepared without contemporaneous records and unlikely to be capable of testing by cross-examination at any retrial, was likely to be regarded as less than cogent.
4. The fax from Nadia Awad was arguably unobtainable for trial and recorded traces of blood under the skin, a description consistent with bruising. It therefore provided a properly arguable basis for seeking admission as fresh evidence.
5. Although the judge had no solid confidence that the full court would admit the latter evidence, he could not confidently conclude that it would not. That was sufficient for permission to appeal on the confined issue. The application did not reopen the trial judge’s assessment of the evidence already before him.

• Court of Appeal (Civil Division): On 23 May 2013, Lord Justice Rimer renewed the application after Treacy LJ refused permission on the papers. Permission to appeal was granted, confined to the proposed admission of the statements of Dr Al-Abassi and Nadia Awad.
• High Court of Justice, Queen’s Bench Division: Eady J dismissed the medical negligence claim by order dated 30 November 2012: [2012] EWHC 3441 (QB).