Ryan v Resende

On an interlocutory appeal concerning expert evidence, the court may adopt a more generous approach to new evidence than on an appeal from a final hearing. The Ladd v Marshall threshold remains relevant, but the overriding objective permits flexibility where the appeal concerns case management and the evidence is significant to an important issue.

Expert evidence should be restricted to what is reasonably required. However, where the need for future care is a live and substantial issue, evidence from medical experts who cannot assess the relevant care or occupational therapy costs may be insufficient. A single expert in care or occupational therapy may therefore be reasonably required to enable the court to assess future loss.

The appellant sustained severe injuries in a road traffic accident. Liability had been admitted, but causation and the assessment of damages remained in issue, including the need for and cost of future therapeutic care.

At a costs and case management conference, Master Davison permitted expert evidence in six disciplines but refused permission for care or occupational therapy evidence. He considered that the need and value of future therapy could be inferred from existing evidence and addressed by experts in other fields.

The appellant appealed and sought to adduce further evidence, including evidence from his neurologist and neuropsychologist that they could not assess therapeutic need and cost. The central issues were whether the new evidence should be admitted and whether care or occupational therapy expertise was reasonably required.

1. The application to adduce further evidence was granted. The court applied the threefold threshold associated with Ladd v Marshall, as repeated and affirmed in Hamilton v Al Fayed (No. 4), in the context of the overriding objective. Although the appellant could have obtained the evidence before the case management hearing, that failure was not fatal because the appeal concerned an interlocutory case management decision.

2. The court adopted the more generous approach recognised in Tajik Aluminium Plant v Ermatov & Ors for interlocutory appeals. The further evidence was credible and significant to a substantial issue. The respondent’s consequential evidence was also admitted, and the appeal proceeded as a rehearing on the discrete issue rather than merely as a review.

3. The court remained mindful that appellate courts should be slow to interfere with robust case management and that expert evidence must be restricted under CPR 35.1. Those considerations did not justify refusing evidence which was reasonably required to resolve an important issue.

4. Whether therapeutic care was medically necessary was a matter for trial. On the evidence before the court, the appellant’s existing experts could not provide the necessary costing evidence, while the willingness of the respondent’s experts to comment did not establish that they could value the claim. In a complex and substantial claim, inference from past assistance and evidence from other disciplines might leave the court without clear expert evidence on future care costs.

5. The court therefore allowed the appeal and varied the Master’s order by permitting reliance at trial on evidence from a single care or occupational therapy expert. The parties were invited to submit an agreed order.

• High Court (Queen’s Bench Division): Master Davison refused permission for care or occupational therapy expert evidence at a costs and case management conference on 27 March 2018. On appeal, the High Court admitted further evidence, allowed the appeal and varied the order.