Pass v Ministry of Defence

When a party seeks to introduce late expert evidence, the court must consider whether it is necessary or reasonably required, with proportionality and the overriding objective in view. The court should secure fairness to both parties and preserve the trial where that can be achieved without prejudice. It may give permission while removing the affected issue of quantification from the imminent trial. A late amendment should be permitted where the issue remains materially live, is supported by existing evidence, and its admission causes no unfair prejudice. The court should not determine the substantive merits of a proposed provisional-damages claim prematurely at a pre-trial review.

This was a pre-trial review before a five-day personal-injury trial. The claimant alleged negligent delay in diagnosing and treating a spinal tumour while he was a serving soldier. Breach was admitted, but causation and quantum remained disputed.

The court determined three applications concerning further disclosure, late accommodation expert evidence, and amendment of the particulars of claim to raise provisional damages under the Senior Courts Act 1981. The central issues were whether the late evidence and amendment should be allowed, and how any resulting prejudice or disruption to the fixed trial should be managed.

1. Specific disclosure. The defendant was ordered either to disclose specified military training and fitness records for September 2011 to February 2014 or to provide a proper witness statement explaining their absence. The order was tailored to the parties’ positions and preserved liberty to apply.
2. Accommodation expert evidence. In deciding whether to admit the late report, the court considered whether the evidence was necessary or reasonably required, proportionality, the overriding objective and whether the trial date would be lost. It was inappropriate to quantify a substantial accommodation claim on inadequate material, while refusing permission would unfairly deprive the claimant of evidence. Permission was therefore granted under rule 35.4(1). To avoid prejudice to the defendant, the question of quantifying future accommodation costs was removed from the forthcoming trial. Causation and recoverability in principle remained for determination, and consequential directions were left to the trial judge.
3. Amendment and provisional damages. Permission was granted to amend the particulars of claim. Although the application was late, the risk of future deterioration, the seedling tumour and related issues had remained prominent in the expert evidence, including a recent express proviso concerning future developments. The defendant therefore suffered no unfair prejudice. The court declined to decide in advance whether the statutory threshold for provisional damages was met. That issue was for the trial judge on the evidence. The defendant was given time to amend its defence if advised.