Craven -Hodgson v Athersmith

Permission to appeal against a discretionary case-management decision should be granted where there is a real prospect that the first appeal judge exceeded the proper limits of appellate intervention. The question whether a claimant genuinely experiences pain is not necessarily within the province of orthopaedic experts. It is for the trial judge to assess the evidence, including medical evidence, surveillance material and the claimant’s oral evidence. If the claimant is found to be genuine, expert evidence on pain management may be reasonably required under CPR 35, even where factual issues about the pain remain.

The claimant sought permission to appeal from an order of His Honour Judge Peter Hughes QC dated 8 March 2015. The judge had allowed the defendant’s appeal against a deputy district judge’s case-management decision dated 18 December 2014, which permitted both parties to rely on pain-management experts.

The claim arose from a motorcycle collision in which the claimant suffered serious orthopaedic injuries, including a fractured femoral head requiring total hip replacement. The central issue was whether the first appeal judge had wrongly interfered with the deputy district judge’s discretionary decision that pain-management evidence was reasonably required.

1. Permission granted. There was a real prospect of success on the proposed appeal.
2. The deputy district judge had applied the correct test under CPR 35, namely whether the proposed expert evidence was reasonably required.
3. There was a real concern that the first appeal judge had substituted his own strong view for the broad discretion exercised by the deputy district judge.
4. The question whether the claimant genuinely felt the pain described was for the trial judge, requiring assessment of the orthopaedic evidence, surveillance footage and oral evidence. Pain may have a psychosomatic or psychological as well as an organic cause.
5. If the claimant were found to be genuine, a pain-management expert could materially assist the court. Factual issues about the genuineness or cause of pain did not automatically make such evidence unnecessary.

• Court of Appeal (Civil Division): Permission to appeal granted from the order of His Honour Judge Peter Hughes QC dated 8 March 2015.
• Barrow-in-Furness County Court and Family Court: The judge allowed the defendant’s appeal against the deputy district judge’s case-management decision of 18 December 2014.