Duffy v Secretary of State for Health

Fixed trial dates should be adjourned only in exceptional and compelling circumstances. The parties’ consent is not sufficient. The court must assess the application case by case, balancing the effect on the parties and other waiting cases against the fairness and practical consequences of proceeding. The unavailability of an expert does not, by itself, justify an adjournment. Relevant matters include the expert’s medical and professional ability to give evidence, the importance and complexity of the evidence, the availability and likely usefulness of replacement evidence, the timing of the application, and any prejudice to either party. An adjournment may nevertheless be appropriate where proceeding would require a party to rely on a reluctant expert in a complex and important case, and there is insufficient time for the court to assess the expert’s ability or make effective alternative arrangements.

The claimant, a protected party bringing a clinical negligence claim through her mother and litigation friend, alleged that negligent treatment at birth and after discharge caused severe disabilities. Liability breaches had been admitted, but causation was disputed. The five-day trial was due to begin during the first full week of the following term.

The claimant applied to adjourn because her principal expert neurologist, Dr Ferrie, had been suspended by the GMC after a newspaper report and was said to be medically unable to give evidence. The defendant consented, but the court had to determine whether the circumstances justified moving the fixed trial date.

1. Application granted. Fixed trial dates are treated as immovable save in the most exceptional and compelling circumstances. The court must consider the effect of an adjournment on both the parties and other cases waiting to be heard.
2. The medical evidence relied upon did not, standing alone, persuasively establish that Dr Ferrie could not give evidence in person or by video link. A general practitioner’s certificate and second-hand information were insufficient to resolve his ability to act as an expert. His professional status and insurance position also required fuller investigation.
3. The absence of an expert will not automatically require an adjournment. In an earlier case, identified by the citation [2015] EWHC 247 (QB), the trial had proceeded without Dr Ferrie’s oral evidence, and the court had not considered the opposing party prejudiced by the inability to cross-examine him.
4. Those considerations were not decisive here. The present case involved difficult and complex causation issues. Dr Ferrie had undertaken a careful analysis and was strongly supportive of the claimant’s case. His oral evidence was important, while a replacement expert was unlikely to address the case for about 12 months. Given the short period before trial and the intervening Easter holiday, there was insufficient time to assess Dr Ferrie’s ability satisfactorily or to make effective alternative arrangements.
5. The ruling was case-specific and was not a general permission to adjourn cases involving Dr Ferrie or cases where he could not be cross-examined. Future applications would require detailed evidence concerning his medical and professional position and would be decided individually.