Hewes v Tanna & Ors

Permission to appeal should be granted where the proposed appeal raises powerful arguments requiring full and fair consideration at an appeal hearing. This may be so where summary judgment was entered on the basis of an expert report served pre-emptively, without completion of the remaining case-management steps. The court deciding permission need not finally determine the merits, the admissibility of new evidence, or the interaction between those issues. Those matters may properly be considered together on the appeal.

The claimant sought permission to appeal from a decision of Master Cook granting summary judgment. The proposed appeal concerned the proper approach to, and assessment of, an expert report relied upon pre-emptively by one party before the remaining processes contemplated by the case-management order had been completed. Causation had also been argued below, but the Master had stated that he would not have granted summary judgment on that ground. The application for permission and the application relating to an oral hearing and additional evidence came before Mr Justice Andrew Baker.

1. Permission granted. The court considered that the proposed appeal had a real prospect of resulting in a different view from that taken by Master Cook. Powerful arguments required a full and fair outing on appeal.
2. The appeal was, in substance, focused on whether the case had properly been disposed of on the basis of an expert report served pre-emptively, without allowing the remaining case-management processes to run their course. That issue warranted full appellate consideration, even if the technical objection concerning permission to rely on the report below were correct.
3. The court did not need to decide, for the purpose of granting permission, how the merits of the appeal, the claimant’s response to the summary judgment application, and the admission of additional evidence should be analysed. Those issues were better considered in the round after full argument on the appeal.
4. The judge indicated that the appellate judge might hear the appeal on the basis of the existing evidence before considering where any additional evidence should fit, or might determine the additional-evidence application first. The appropriate course was left to the judge hearing the appeal.

The judgment records that the matter had arrived before the court following an earlier procedural decision by Sir Alastair and a decision by Master Cook below.

• High Court (Queen's Bench Division): permission to appeal granted. The appeal was to focus on the approach to and assessment of the expert report relied upon for summary judgment.