Taleb v Imperial College Healthcare NHS Trust

Permission to rely on late expert evidence under CPR 35.4 is not governed by the relief-from-sanctions regime unless the rule contains an express or implied sanction. The court must exercise its discretion under the overriding objective. Where the application is very late and permitting it would probably vacate a fixed trial, the court must give substantial weight to the legitimate expectation that the trial date will be kept. Relevant considerations include the reason for the delay, the significance of the proposed evidence, prejudice to each party and the need to do justice. The court may refuse permission where the issue was raised late without adequate explanation, the evidence is only potentially significant, and its admission would cause serious delay and prejudice.

This was a clinical negligence claim arising from alleged negligent management of labour and delivery, resulting in severe neurological disabilities. The defendant admitted that the claimant had suffered a chronic partial hypoxic-ischaemic insult in utero, but denied that it occurred during labour or was caused by negligence.

After the trial had been fixed, the defendant applied for permission under CPR 35.4 for the parties to instruct a single joint genetic expert. The application followed a late suggestion by the defendant’s neurological expert that genetic factors might have contributed to the claimant’s condition. The central issues were whether the application should be treated as one for relief from sanctions and, in any event, whether permission should be granted without vacating the trial.

1. The application was refused. Allowing further genetic evidence would almost inevitably require the fixed trial to be vacated. The proposed evidence would require testing, reports, expert discussions, possible amendments to the defence, further consideration by existing experts and renewed preparation for trial.
2. CPR 35.4 contains no express sanction for failing to obtain permission to rely on expert evidence, and no implied sanction. The rule simply requires the court’s permission. The approach in S J Moore (Jeweller) Ltd v Squibb Group Ltd [2018] EWHC 2731 (QB), treating such an application as governed by relief-from-sanctions principles, was therefore not followed.
3. The applicable approach depends on the timing of the application. If it is very late because the trial date has been fixed and allowing it would cause the trial to be lost, the court must recognise the legitimate expectation that the trial date will be kept. The relevant considerations are those identified in Heiser v The Islamic Republic of Iran [2019] EWHC 2073 (QB): the reason for the delay, the significance of the new material, prejudice to each party and the need to do justice under the overriding objective. The concept of a very late application was taken from Quah Su Ling v Goldman Sachs International [2015] EWHC 759 (Comm).
4. The defendant had access to the relevant records and expert evidence well before the application. The genetic issue had been considered by treating clinicians years earlier, yet it was not raised in the response to the letter of claim, the defence or the agreed case summary. The explanations for the delay lacked urgency and were not sufficiently persuasive.
5. The proposed evidence could be important, potentially providing a complete or partial defence, but it remained only a possibility. Existing evidence supported an in-utero hypoxic-ischaemic cause, and earlier genetic investigations had not identified an explanatory abnormality. That evidential significance did not outweigh the near-certain loss of the trial date, the claimant’s circumstances and the resulting delay.

First-instance decision. The judgment records that the claim had been issued, allocated to the multi-track and listed for trial, but gives no appellate history.