Magee v Willmott

Relief from sanctions requires the court to apply the three-stage test under CPR 3.9 and consider all the circumstances. Personal blamelessness and the claimant’s interest in a trial cannot displace the need for efficient litigation, proportionate costs and compliance with court orders. Article 6 does not make access to a trial decisive where refusal of relief is proportionate.

A professional negligence claim must be supported by appropriate expert evidence. A claim lacking such support may be an abuse of process, but the court should distinguish between a claim with no expert foundation and one with sufficient evidence to mount a claim, even if the evidence is incomplete or does not support every allegation.

The claimant brought clinical negligence proceedings against a general practitioner concerning an alleged delay in diagnosing bowel cancer. After expert evidence had been exchanged, the claimant sought permission to rely on further reports served out of time. The breach caused the listed trial to be vacated.

The Recorder granted relief from sanctions under CPR 3.9 and refused the defendant’s application to strike out the claim. The defendant appealed, arguing that the Recorder had treated the matter as a simple balance of prejudice, failed to apply the Denton test properly, and failed separately to determine the strike-out application.

1. Appeal allowed in part. The Recorder had misdirected himself under CPR 3.9 by concentrating on the claimant’s Article 6 right and balancing the parties’ prejudice, without properly addressing all the circumstances, particularly efficient litigation, proportionate cost and enforcement of compliance with rules and orders.
2. The breach was serious. The additional expert evidence came into existence only after the deadline, caused the loss of the trial date and followed particularly serious conduct by the claimant’s solicitor, including delay, inadequate disclosure and a failure to present the true position candidly. The disruption affected the defendant, court resources and other litigants.
3. The claimant’s personal blamelessness and difficult circumstances were relevant, but could not be the principal consideration. A proper application of CPR 3.9 generally satisfies Article 6 where refusal of relief is proportionate. The claimant was refused permission to rely on the further expert evidence served after 15 July 2019.
4. The claim concerning the April 2013 consultation was separately struck out under CPR 3.4(2)(a) and (b). The pleadings disclosed no causation case and there was no admissible expert evidence supporting the allegations of negligence. Maintaining such an unsupported professional negligence claim constituted an abuse of process in the sense described in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [2010] EWHC 3189 (TCC).
5. The August 2012 claim was not struck out as an abuse of process. The evidence available when it was brought was sufficient to mount a claim, although it did not support every pleaded allegation. The absence of admissible causation evidence and the refusal of relief meant that the claim had no realistic prospect of success; an application for summary judgment under CPR 24 might therefore be appropriate.
6. The remaining matter was remitted to the court below for further directions unless discontinued or dealt with by summary judgment.

• High Court (Queen's Bench Division): allowed the appeal to the extent stated, refused relief from sanctions, struck out the April 2013 claim under CPR 3.4(2)(a) and (b), and directed that the remaining matter be remitted for further directions unless discontinued or subject to summary judgment.
• County Court at Reading: the Recorder granted relief from sanctions and permitted reliance on late expert evidence, and refused the defendant’s strike-out application.