Hall v Derby Teaching Hospitals NHS Foundation Trust

Permission to rely on additional expert evidence should be granted only where the evidence is relevant, necessary and proportionate to resolving issues that remain in dispute. Permission is not justified merely to achieve clinical continuity or completeness, or to prove matters already agreed. A party cannot rely on expert evidence obtained and circulated before permission was granted without accepting the procedural and costs risks of that course. Where existing experts can address the relevant issues and a future financial adjustment can be made without new specialist evidence, additional expert evidence adds nothing material to the litigation.

The claimant brought a negligence claim arising from a laparoscopic cholecystectomy during which her bile duct was damaged. The defendant admitted that the subsequent open surgery would have been avoided had the operation been performed competently.

The claimant applied for permission under Part 35 to rely on reports from a neurosurgeon after an MRI scan identified cervical and thoracic spinal lesions and the claimant reported right foot symptoms. By the hearings, the reports had already been obtained and shown to some existing experts. The issue was whether neurosurgical evidence was necessary and proportionate, either to establish causation or to exclude neurosurgical causes and address possible future treatment.

1. The application for permission to rely on neurosurgical evidence was refused. The court considered the application on the basis of the reports actually obtained and the responses they had produced, rather than the more abstract basis advanced when the application was issued.
2. Permission under Part 35 was not required to establish matters that had become common ground, namely that the spinal lesions and right foot symptoms were not a direct consequence of the admitted negligence. Nor was it justified merely to provide clinical continuity or completeness.
3. The existing experts were capable of addressing the relevant issues within their own disciplines. The neurologist could express the relevant neurological opinion; the pain, surgical and psychiatric experts could address the consequences of the admitted negligence; and any credit for possible future surgery unrelated to the negligence could be reflected in the Schedule of Loss without neurosurgical evidence.
4. The neurosurgeon’s reports added no material contribution from neurosurgery. Their comments concerning exacerbation of constitutional symptoms were outside the purpose for which the evidence had been sought and duplicated points already capable of being made by other experts.
5. The court emphasised the duties to limit expert evidence, reduce issues and control costs under the overriding objective. A party that takes steps in anticipation of permission assumes the risk that permission may be refused and that the resulting work may have to be undone.
6. The references to the neurosurgeon’s reports were to be excised from the claimant’s existing experts’ reports, which were to be re-served at the claimant’s expense. Extensions of time were granted as necessary for the defendant to comply with earlier directions. The claimant was ordered to pay the costs of and occasioned by the application, including the unnecessary second hearing.

Not stated in the judgment.