Simon Butler v David Anthony Ward

Summary judgment is inappropriate where informed consent depends on disputed evidence about what was said, the patient’s circumstances and the significance of particular risks. Under Montgomery, the doctor’s duty to disclose material risks and reasonable alternatives is patient-centred. Bolam governs the professional assessment of treatment options, but not whether a material risk should be discussed. McCulloch applies professional practice principles to identifying reasonable alternatives, while materiality remains for the court.

A claim may be struck out where a loss calculation is incoherent and obstructs the just disposal of proceedings. Pursuing a weak claim does not alone justify wasted costs. A wasted-costs application requires a prima facie case of improper, unreasonable or negligent conduct, causation, justice and proportionality.

The claimant alleged that the defendant orthopaedic surgeon failed to obtain informed consent before hip resurfacing surgery. He contended that he had not been warned adequately about adverse outcomes, including avulsion injury, long-term weakness and the effect on his work as a ski instructor.

The defendant applied for summary judgment, strike-out of the schedule of loss and wasted costs against the claimant’s former solicitors. The summary judgment application focused on whether the claimant had a real prospect of proving uninformed consent. The strike-out application concerned the pleading and evidential basis of the loss-of-earnings claim. The wasted-costs application concerned alleged negligent, unreasonable and improper conduct.

1. Summary judgment refused. The claimant had a realistic prospect of establishing that his consent was uninformed. The parties’ accounts of the consultation differed materially, particularly as to the discussion of risk. The contemporaneous letter assisted the defendant in some respects but did not resolve the factual dispute. Determining what was said, the claimant’s circumstances and what he would have done required a trial.
2. Under Montgomery [2015] UKSC 26, the doctor’s duty is to take reasonable care to ensure that the patient is aware of material risks in recommended treatment and reasonable alternative or variant treatments. Materiality is assessed by reference to what a reasonable person in the patient’s position would attach significance to, or what the doctor knows or ought reasonably to know would matter to that patient. The assessment is fact-sensitive.
3. There is a distinction between selecting appropriate treatment and discussing treatment, alternatives and risks with the patient. Professional judgment and the Bolam test apply to the former. They do not determine, by expert evidence alone, whether a known risk is material and ought to be discussed.
4. McCulloch v Forth Valley Health Board [2023] UKSC 26 applies professional practice principles to whether a potential alternative treatment is reasonable and therefore requires discussion. It does not make the materiality of a risk a question for expert evidence alone. Expert evidence may assist, but the materiality question remains for the court.
5. The schedule of loss was struck out in part. The claims for future remedial surgery and past care were inadequately or sparsely supported but did not obstruct the just disposal of the proceedings. The past and future loss-of-earnings claim was incoherent, unsupported by adequate evidence or explanation, and was struck out under CPR 3.4(2)(a) and (b).
6. The wasted-costs application was dismissed. The threshold required a prima facie case of improper, unreasonable or negligent conduct, a causal link to specified wasted expenditure, justice in making the order and proportionality. Pursuing a hopeless case does not of itself justify wasted costs, and this claim was not shown to be hopeless. The allegations did not justify proceeding to stage 2 and it would be disproportionate.
7. An allegation of improper conduct based on technical material such as metadata requires critical examination and, where appropriate, specialist inquiry into innocent explanations before being advanced.