Seear v St George's Healthcare NHS Trust

On a second appeal, permission requires an important point of principle or practice or some other compelling reason. Where the latter ground is relied on, very high prospects of success are normally the starting point, but the court must consider all the circumstances, including fairness to the respondent and finality in litigation. Fresh evidence remains subject to the Ladd v Marshall principles. Evidence that could have been obtained with reasonable diligence before earlier hearings should not be admitted. A case-specific challenge to the objective construction of a compromise agreement will not justify a second appeal where the lower courts’ construction is not shown to be very arguably wrong.

After a road traffic accident, the applicant settled a claim against the Motor Insurers’ Bureau for £57,000 while causation of an odontoid peg fracture remained disputed. She later brought clinical negligence proceedings against the respondent, alleging negligent delay in diagnosis and treatment. The Mayor’s and City of London Court struck out the claim, and HHJ Birtles dismissed her appeal. In this Court she sought permission for a second appeal and permission to rely on a witness statement from her former solicitors. The issues were whether the fresh evidence could be admitted and whether the proposed challenge to the construction of the settlement raised a compelling reason for a second appeal.

1. Outcome. The application to adduce fresh evidence was refused. Permission to bring a second appeal was also refused.
2. Fresh evidence. Under Civil Procedure Rules 1998, r 52.11(2), evidence not before the lower court is not received unless the Court orders otherwise. The principles in Ladd v Marshall [1954] 1 WLR 1489 remain relevant. The first limb asks whether the evidence could have been obtained with reasonable diligence before the earlier hearing. The witness evidence could have been obtained before both earlier hearings. The applicant had notice of the evidential difficulty but did not make a diligent attempt to obtain it. Admission would also be unfair to the respondent, and some of the evidence was inadmissible or not wholly favourable.
3. Second appeal. Under Civil Procedure Rules 1998, r 52.13(2), permission requires an important point of principle or practice or some other compelling reason. The applicant accepted that the first ground was unavailable. Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 established that prospects of success are usually the starting point for the compelling-reason ground and ordinarily must be very high. Very high prospects alone may not suffice. All the circumstances must be considered, including the respondent’s position and the need for finality in litigation.
4. Application. Without the fresh evidence, the proposed appeal concerned the objective construction of the compromise agreement in its context. The Court could not conclude that the lower courts’ construction was so arguably wrong that the prospects of success were very high. Given the history of the proceedings and the respondent’s entitlement to finality, there was no compelling reason to grant permission. The Court expressed no view on whether the result might have differed had the evidence been obtained when the strike-out application was first issued.

1. Court of Appeal (Civil Division): refused permission for a second appeal and refused permission to adduce fresh evidence.
2. Appeal before HHJ Birtles: the applicant’s appeal was dismissed on 24 September 2012.
3. Mayor’s and City of London Court: District Judge Trent struck out the clinical negligence claim on 18 October 2011.