Hewes v West Hertfordshire Hospitals NHS Trust & Ors (3)

Summary judgment is available in clinical negligence claims, but it will rarely be appropriate before the relevant expert evidence has been exchanged and discussed. The court must consider evidence reasonably expected to be available at trial with particular caution, avoiding a mini-trial on incomplete expert material. A pleaded case supported by an identifiable expert opinion is not unarguable merely because the opinion has not yet been fully articulated or because the opposing expert considers the allegation very weak. In a suspected cauda equina case, an argument that a general practitioner should take steps to minimise delay, including arranging expedited specialist assessment, may be properly arguable. Its merits ordinarily require trial.

The claimant brought clinical negligence proceedings arising from delays in the diagnosis and treatment of cauda equina syndrome. He alleged that the third defendant, an out-of-hours general practitioner, should have contacted the hospital’s orthopaedic team so that specialist assessment was expedited rather than directing him simply to attend the accident and emergency department.

Master Cook granted the third defendant summary judgment, holding that the claimant had no reasonable prospect of establishing breach of duty. The claimant appealed. The central issues were whether the application was premature, whether the available expert evidence justified judgment without trial, and whether the claimant’s proposed expert evidence raised a realistic issue under Bolitho.

1. Appeal allowed. The Master had been wrong to grant summary judgment in favour of the third defendant.
2. There is no principled bar to summary judgment in a clinical negligence claim. An obviously weak claim on liability or causation may be disposed of summarily. In practice, however, such applications will rarely be appropriate before the relevant expert reports have been exchanged, and generally before experts have discussed the case and produced a joint statement.
3. Under the approach identified in Royal Brompton Hospital NHS Trust v Hammond and Tesco Stores Ltd v Mastercard Incorporated, the court must consider evidence reasonably expected to be available at trial, including the significance of evidence not yet available. That exercise must be undertaken cautiously because experts may change their views after discussion and because deciding the merits on incomplete expert material risks an inappropriate mini-trial.
4. The claimant’s pleadings, Letter of Claim and earlier expert instructions made clear that he had a GP expert supporting the proposition that, once cauda equina syndrome was suspected, a reasonably competent practitioner should take steps to minimise delay by arranging expedited orthopaedic assessment. Whether that proposition would succeed at trial was undecided, but it was plainly arguable and not clearly doomed to fail.
5. The short letter from the claimant’s expert, which did not give detailed reasons, did not justify treating the claim as unarguable. The claimant was not required to serve his fully developed expert report until the ordered date. It was unreasonable to expect a complete or even detailed response to the opposing expert at short notice.
6. The judge expressed the view that the further report from the claimant’s expert would have been admissible under the more flexible approach to fresh evidence supported by Aylwen v Garrett, Terluk v Berezovsky and Lemos v Lemos, and would have defeated summary judgment. That conclusion was unnecessary to the result because the appeal succeeded without admitting the report.

The matter was to proceed to trial, subject to revisions to the timetable.

• High Court (Queen’s Bench Division): Master Cook granted summary judgment for the third defendant in [2018] EWHC 1345 (QB).
• High Court (Queen’s Bench Division): the appeal was allowed.