Alan Prescott-Brann v Chelsea and Westminsters Hostpital NHS Foundation Trust & Anor

An appellate court should interfere with a case-management decision only where it was wrong, in the stringent sense applicable to discretionary case management. The court has a broad discretion under Civil Procedure Rules 1998, r 35.4 to permit replacement expert evidence. The discretion must be exercised case by case, having regard to delay, disruption, expert shopping, prejudice to the other party and the overriding objective. A late change may properly be allowed where the loss of confidence in the existing expert has a proper foundation and there is a good apparent reason for substitution. An inaccurate understanding of the existing expert’s position or of the proposed expert’s evidence may render refusal of permission wrong.

The appellant brought clinical negligence proceedings concerning an alleged delay in diagnosing and treating a stroke. The respondents admitted breach of duty but disputed causation. Permission had previously been granted for a replacement neuroradiology expert. The appellant later sought to replace his neurology expert, Professor Wills, with Dr Chandratheva after concerns arose about Professor Wills’s engagement with the new neuroradiology evidence.

Master Eastman refused permission on the grounds of lateness, apparent expert shopping, lack of assistance from Dr Chandratheva’s report and an inappropriate selection of documents. The appellant appealed. The central issues were whether the Master had misunderstood Professor Wills’s reports, mischaracterised Dr Chandratheva’s evidence, and correctly exercised the discretion concerning replacement expert evidence.

1. Appeal allowed. The refusal of permission to rely on Dr Chandratheva in substitution for Professor Wills was set aside.
2. The appellate question for a case-management decision was whether the decision was wrong. Interference is inappropriate unless the decision falls outside the generous ambit within which reasonable decision-makers may disagree, as explained in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64, referring to Broughton v Kop Football (Cayman) Ltd [2012] EWCA Civ 1743.
3. Under Civil Procedure Rules 1998, r 35.4, the court has a broad discretion to permit a replacement expert. The usual approach is not to refuse substitution, ordinarily subject to disclosure of the first expert’s reports, but the court must discourage expert shopping and may impose additional conditions. Relevant circumstances include lateness or disruption, whether the change seeks a more favourable opinion, unfair disadvantage and the overriding objective. The principles in Edwards-Tubb v JD Wetherspoon plc [2011] EWCA Civ 136 and Murray v Devenish [2017] EWCA Civ 1016 were applied.
4. The Master had wrongly treated Professor Wills’s initial unsupportive view as having been maintained throughout. His later reports made his opinion conditional on factual findings about whether the claimant had suffered a stroke in evolution.
5. The Master had also misattributed an observation in Dr Birchall’s radiology report to Dr Chandratheva. Dr Chandratheva’s report supported the causation case by attributing the neurological deterioration probably to further embolic events.
6. The appellant had shown a good reason for changing experts. The application was not so late as to cause material prejudice, and the evidence did not establish expert shopping. Dr Chandratheva had reached independent conclusions. The parties were directed to file an agreed draft order dealing with costs and consequential directions, or written submissions on any disagreement within seven working days.

• High Court (King’s Bench Division): allowed the appeal against Master Eastman’s order of 25 May 2023 refusing permission to rely on replacement neurology expert evidence.