CXB v North West Anglia NHS Foundation Trust

Contemporaneous clinical records do not enjoy an inherent preference over oral evidence. The court must evaluate the documentary and testamentary evidence as a whole and decide whether the record or the contrary witness account is reliable. That assessment must be forensic and reasoned, rather than based simply on witness demeanour.

General observations about the fallibility of memory are not automatically statements of legal principle. Their weight depends on the context in which they were made and the issue they addressed. Honest and confident recollection may nevertheless be rejected where it is internally or externally inconsistent, changes over time, or conflicts with the contemporaneous records and probable practice.

The claimant brought a clinical negligence claim concerning the management of her mother's twin pregnancy and delivery at Hinchingbrooke Hospital. Liability was directed to be tried as a preliminary issue.

The defendant admitted that an elective caesarean section, had it been chosen, would have been agreed and would have avoided the damaging event. The factual issue was whether the claimant's mother had elected for an elective caesarean section. The dispute centred on a contemporaneous clinical note recording that she was keen for induction of labour, together with the parents' contrary recollections.

1. The claim failed. The court found that the clinical record was reliable and that the contrary evidence of the claimant's parents, aunts and grandmother was unreliable. The claimant therefore failed on the agreed preliminary issue.
2. There is no legal principle that contemporaneous clinical notes are inherently more reliable than oral testimony. The question is whether, viewing the evidence as a whole, there is material showing that the clinical record is unreliable or incorrect, or material showing that the contrary witness evidence is unreliable or incorrect. The assessment must be forensic and must not depend simply on demeanour: Synclair v East Lancashire Hospital NHS Trust [2015] EWCA (Civ) 1283 was treated as a decided example illustrating that approach.
3. The observations concerning memory in Gestamin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 were to be treated with caution. They were not shown to be established legal principles, lacked an identified legal analysis or expert foundation, and arose in a materially different commercial context. The subsequent reliance on them in Lachaux v Lachaux [2017] EWHC 385 and Carmarthenshire County Council v Y [2017] EWFC 36 did not confer authoritative status on them.
4. The observations in Kimathi & Ors v The Foreign & Commonwealth Office [2018] EWHC 2066 concerned a different limitation and discretionary exercise and were qualified as only a helpful general guide. The adoption of those observations in Taylor v Chesterfield Royal Hospital NHS Foundation Trust [2019] EWHC 1048 QB was likewise no more than such a guide.
5. The parents' evidence was undermined by material changes in account, inconsistencies between witnesses, the absence of expected contemporaneous records, and its conflict with the evidence of the clinicians. Sympathy for the claimant and the parents could not affect the forensic evaluation.