A judgment resolving various cross-applications a few weeks before trial in a serious PI case is perhaps not the most obvious subject for a blog. However, there is so much packed into the 15-paragraph judgment of Fordham J in Pass v Ministry of Defence [2021] EWHC 243 (QB) and the result is an unfamiliar one.

Mr Pass claimed damages for clinical negligence whilst a serving soldier, involving delayed diagnosis of a spinal tumour.  Although a breach of duty was admitted, all issues of causation loss and damage were contested with a significant array of expert evidence on causation and condition and prognosis.

To read the full judgment, click here.

An Unusual Pre-Trial Review

A five-day trial was listed to commence on 1 March 2021 and the matter came before Fordham J at a Pre-Trial Review just three weeks before trial. The case appears to have been in considerable disarray so close to trial in that:

  • Permission to amend the Particulars of Claim was sought, to plead a claim for provisional damages. 
  • There were outstanding disclosure issues relating to military training and fitness records.
  • At least two expert joint statements were outstanding.
  • A Schedule and Counter-Schedule were outstanding.
  • The Claimant wished to rely on accommodation expert evidence for which no permission had been given, in circumstances where the Defendant had not yet obtained such evidence.

In such a scenario, it is tempting to suggest that this was a case that was manifestly not ready for trial.  

Surely, many judges would have been tempted to vacate the trial and provide a new set of manageable directions to a new trial date.  Equally, many judges would have wanted to explore how the case had got into such a shape before deciding upon the appropriate case management order and whether there should be any adverse costs consequences.

However, Fordham J’s judgment demonstrates a remarkable pragmatism in response to the wish of both parties to keep the trial date.  The Claimant was given permission to amend and the outstanding disclosure, expert joint statements and Schedules were timetabled into the remaining 20 days before trial.

Accommodation Expert Evidence

This left the question of accommodation expert evidence, where Fordham J noted that the position in respect of necessary expert evidence should normally be resolved at “the earliest possible stage in proceedings” and not three weeks before the trial.

The course proposed by the Defendant was that the trial should proceed without any accommodation expert evidence, with the Defendant recognising that the Court would then either “do its best” on the material available or, more likely, that the accommodation claim would fail entirely – a scenario described by Fordham J as “fundamentally unfair to the claimant with his claim failing on this head through lack of evidence”.

Fordham J eschewed any analysis of fault as between the parties for the state of the case preparation just three weeks before trial, saying “it is not necessary to engage on a dig into the archaeology of how that has come to be”. This approach led him to the conclusion that a course was available that “resolves all the imperatives; achieves fairness; is in accordance with the overriding objective; and secures that the question – should it be reached – of quantifying future accommodation costs will be addressed by a court having the material that it reasonably required; all of which can be achieved without losing the 5-day trial date.”

The solution adopted was to give the Claimant permission under CPR 35.4(1) to adduce the expert accommodation evidence but order that the issue of quantification of future accommodation costs was removed from the trial, with any consequential order being made by the trial judge. Fordham J was clearly influenced by the concession by both counsel that the issue of quantum of future accommodation costs could, in principle, be removed from the trial without any adverse knock-on effect for the consideration of other issues; with there being no inter-linkage with other issues which made that removal of one aspect unworkable.

Fordham J also considered that this course reflected proportionality as the order made did not impose on the defendant any duty today to expend resources on an expert report – it would only need to do so, if necessary, after trial.

Learning Points

Do not expect this case to be the start of a trend towards ‘hiving off’ distinct issues in PI litigation as a result of deficiencies in case preparation.

In very few cases will expert evidence in a particular field and the head or heads of loss to which it relates be truly divisible from other issues. A factor not considered here was how the adjournment of the issue would have affected (probably impaired) the ability of the parties to settle the claim in its entirety.

The judgment is brief and gives little detail as to how the case had got into the shape it was in three weeks before trial. The pragmatic approach taken by Fordham J means that we do not know what the findings of an ‘archaeological dig’ would have been – which is perhaps a shame! 

Nevertheless, the outcome seems very favourable to the Claimant. Had the boot been on the other foot with the Claimant having an accommodation report and the Defendant trying to get late permission for an expert to respond, it is difficult to imagine many judges regarding it as fundamentally unfair to the Defendant for the Claimant’s claim to succeed through the Defendant’s lack of expert evidence.