Duce v Worcestershire Acute Hospitals NHS Trust

A claim should not be struck out under the Civil Procedure Rules 3.4(2) merely because it has no real prospect of success: that is the summary-judgment test under rule 24.2. The court must distinguish sanctions for procedural non-compliance from determination of the claim’s merits. Where medical evidence, taken at its lowest, supports a duty to warn, and questions of obviousness and causation require factual examination, the claim has a sufficient prospect to proceed. Late service of a condition and prognosis report may be addressed by relief from sanction.

The claimant alleged that she developed neuropathic post-operative pain following surgery and that the defendant negligently failed to warn her of the relevant risk. Her claim was struck out by District Judge MacKenzie. District Judge Khan refused to reinstate it, and Judge Pearce-Higgins QC dismissed the subsequent appeal after considering further expert evidence and a proposed amendment substituting post-operative pain for chronic post-surgical pain. The Court of Appeal considered the procedural confusion surrounding the medical-report requirement and, principally, whether the amended claim had a real prospect of success.

1. Appeal allowed. The Court of Appeal, in the judgment of Richards LJ agreed by Black LJ and Fulford LJ, set aside the strike-out order dated 6 January 2012, permitted amendment of the particulars of claim in the draft form before the lower court, and granted relief from sanction so that the claimant could rely on Dr Gauci’s second condition and prognosis report.
2. Practice Direction 16, paragraph 4.3 required a medical practitioner’s condition and prognosis report about the alleged injuries. It did not require the expert evidence relied upon for breach of duty and causation at that stage. The earlier order, which appeared to require all medical evidence, created the central procedural confusion.
3. The power to strike out under Civil Procedure Rules 3.4(2) was distinct from summary judgment under rule 24.2. The no-real-prospect test belonged to the latter. The claimant’s procedural objections would have been valid if raised earlier, but were too late by the time of the second appeal.
4. On the evidence as it stood, Mr Abouzeid’s report, taken at its lowest, supported a duty to warn of post-operative pain. That conclusion was consistent with the undisputed principles identified in Bolitho and Pearce. The claim therefore could not be characterised as having no real prospect of success.
5. Whether the risk was obvious and whether the claimant would have undergone surgery if warned were factual matters requiring exploration at trial. They did not provide a knock-out answer at the interlocutory stage, particularly where the relevant evidence had not been properly canvassed before the judge.
6. Had the only issue been the late condition and prognosis report, relief from sanction would probably have been granted under the then applicable approach to Civil Procedure Rules 3.9, given the late service of the report and the absence of real prejudice.

• Court of Appeal (Civil Division): On second appeal, allowed the appeal, set aside the strike-out order, permitted amendment of the particulars of claim and granted relief from sanction: [2014] EWCA Civ 249.
• Worcester County Court: District Judge MacKenzie struck out the claim. District Judge Khan dismissed the application to reinstate it. Judge Pearce-Higgins QC dismissed the appeal and, after considering the amended case, concluded that it had no real prospect of success.