Bergan v Evans (St Christopher and Nevis)

In personal injury proceedings, special pleading requirements for medical reports do not displace judicial control of expert evidence. A defendant must state whether an attached medical report is agreed and, if disputed, the nature of the dispute; a bare non-admission is insufficient. Breach makes the defence defective, but does not deem the report admitted or confer an automatic right to deploy it. Permission under rule 32.6 remains necessary. Section 163 of the Evidence Act 2011 concerns the admissibility of documentary medical evidence and does not provide a separate gateway to its deployment as expert evidence. The court must control the amount and form of expert evidence to secure a just, proportionate and economical trial.

Evans brought a personal injury claim arising from a 2006 road accident and attached medical reports to her claim form, as required by rule 8.9(3) of the Civil Procedure Rules 2000. Bergan’s defence merely stated that the injuries were neither admitted nor denied. Evans later sought to rely on further medical evidence. The trial judge permitted both doctors’ evidence, relying on the defective defence and section 163 of the Evidence Act 2011. The Court of Appeal of the Eastern Caribbean Supreme Court agreed. The appeal concerned whether the personal injury provisions and section 163 displaced the general requirement for permission to deploy expert evidence under rule 32.6.

The Board allowed the appeal to the extent indicated, while preserving the practical orders permitting the deployment of both doctors’ evidence.

1. Defence pleading. Rule 10.6 of the Civil Procedure Rules 2000 is prescriptive. Where a claimant attaches a medical report, the defendant must state whether all or part is agreed and, if disputed, the nature of the dispute. Unlike the general rule in rule 10.5, rule 10.6 does not permit a bare non-admission. The purpose is to identify the medical issues at an early stage and facilitate proportionate case management and settlement.
2. Effect of a defective defence. Bergan’s defence was defective. That defect did not deem the contents of the reports admitted. Evans still had to prove her case. Nor did the defect automatically authorise deployment of the reports. Permission under rule 32.6 remained necessary. The failure to plead properly would, however, ordinarily be a strong reason to grant permission. The attachment of reports identifies issues susceptible to medical evidence; it does not give a claimant an unrestricted right to deploy any number of experts. The court may require a single independent expert or otherwise limit the evidence under rule 32.2.
3. Admissibility and deployment. Section 163 of the Evidence Act 2011 deals with the admissibility of documentary medical evidence. It operates mechanically when its conditions are met. That question is distinct from the case-management question whether expert evidence may be deployed. Section 163 therefore does not override rule 32.6. Treating it as an alternative gateway would undermine the court’s duty to control disproportionate expert evidence.
4. Application. Permission to deploy Dr Laws’s reports was still required, although it ought to have been granted readily because Bergan had never identified any disputed part of them. The judge’s directions concerning Dr Hendrickson’s report and attendance objectively satisfied rule 32.6, despite the judge having treated section 163 as the source of the power. The Board therefore advised that the appeal be allowed to that extent. The Board also regarded the late objections as potentially relevant to the costs of the appeal.

1. Privy Council: In [2019] UKPC 33, the Board allowed the appeal to the extent indicated, holding that permission under rule 32.6 remained necessary but that the relevant evidence could be deployed.
2. Court of Appeal of the Eastern Caribbean Supreme Court: Agreed with the trial judge that Dr Laws’s and Dr Hendrickson’s evidence could be deployed.
3. Trial court: Ramdhani J (Ag) permitted deployment of both doctors’ evidence, relying on the defective defence in relation to Dr Laws and section 163 of the Evidence Act 2011 in relation to Dr Hendrickson.