Tom Gibson succeeds in ‘Jackson-themed’ case management appeal

Tom Gibson represented the successful defendant in Green (Deceased) v Mid Essex Hospital Services NHS Trust (County Court at Central London, 28 April 2016, HHJ Baucher) in a ‘Jackson-themed’ case management appeal about single joint experts.

This clinical negligence claim was brought after Mr Green, who was suffering from terminal cancer, died suddenly while he was an in-patient at the Defendant’s hospital. In its defence the Defendant admitted breach of duty, in failing to monitor Mr Green adequately, and apologised to his widow. However the causation of Mr Green’s death was disputed.

Because of Mr Green’s limited life expectancy, the Claimant’s case was said to be worth between £20,000 and £25,000 at the first Case and Costs Management Conference. At the CCMC, District Judge Fine refused permission for there to be either (i) a 3-day trial with an expert physician and oncologist on both sides (as the Claimant had requested) or (ii) a 2-day trial with an expert physician on both sides (as the Defendant had requested).

Instead, DJ Fine ordered that the case should proceed to a 1-day trial, with the parties having permission to rely on a single joint expert physician on causation.

The Claimant appealed. HHJ Freeland QC granted the Claimant permission to appeal DJ Fine’s decision to order a single joint expert. The Defendant resisted the appeal.

Her Honour Judge Baucher dismissed the Claimant’s appeal. She held that DJ Fine’s decision had been “well within the limits of discretion open to her”, having regard to the overriding objective as modified from 1 April 2013 by the Jackson reforms.

HHJ Baucher also distinguished the appellate cases on single joint experts of Oxley v Penwarden (Court of Appeal, Mantell and Kennedy LJJ, 21 July 2000) and S (a Minor) v Birmingham Health Authority (QBD Birmingham, Curtis J, 9 July 1999), both of which were referred to in the White Book (and both of which featured counsel from Outer Temple: David Westcott QC and Andrew Spink QC, as they then were). HHJ Baucher reasoned that both Oxley and S (a Minor) involved matters that were “extremely complex” and that both cases were “considerably reduced in force by the new [Jackson] regime now operating”.

News 9 May, 2016