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Cite as: [2002] EWCA Civ 478

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Neutral Citation Number: [2002] EWCA Civ 478
A2/01/2301

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Buckley)

Royal Courts of Justice
Strand
London WC2

Thursday, 21st March 2002

B e f o r e :

LORD JUSTICE BUXTON
LORD JUSTICE LATHAM
SIR DENIS HENRY

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KERSTIN PARKIN Respondent/First Claimant
MARK BARRINGTON PARKIN
- v -
BROMLEY HOSPITALS NHS TRUST Defendant/Appellant

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(Computer Aided Transcript of the Stenograph Notes
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 0207-421 4040
Fax No: 0207-831 8838
Official Shorthand Writers to the Court)

____________________

MR. P. HAVERS Q.C. and MR. A. ANTELME (instructed by Messrs Kennedys, London, EC1) appeared on behalf of the Appellant/Defendant.
MR. J. GRACE Q.C. and MR. P. REES Q.C. (instructed by Messrs Bindmans, London, WC1) appeared on behalf of the Respondent/First Claimant.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE BUXTON: In this appeal it is sought to reverse a case management decision taken by a judge of the Queen's Bench Division in the middle of a long and difficult trial that he had already been conducting for several days, and in respect of which he had had the conduct for some considerable period before that. That statement of the nature of the issue indicates the unusual nature of the appeal, and also indicates that the appeal is, on its face, not a matter that would normally be entertained by this court. However, the case has some unusual features allegedly involving matters of general public interest. It was those considerations that led to this court giving permission for this appeal to be pursued.
  2. It is necessary to say only very little about the factual background and the proceedings in which the question arises. The claimant, Mrs Parkin, suffered major brain damage when she was in labour with her first child. That brain damage was the result of negligence which was admitted before trial by the appellant. It is not necessary to say more of the facts than that, but the major brain damage has caused severe disability for Mrs Parkin.
  3. The proceedings were served in October 1998, and they had within them a report made in September 1998 by a Dr. Derek Wade, who is a consultant in neurological disability at the Radcliffe Infirmary in Oxford. Amongst others things, Dr Wade said at the end of his report that the claimant's life expectancy should be considered to be normal or near normal. At that time, and for some considerable time thereafter, the defendant did not seek to challenge that view.
  4. In December 1998 directions were given for trial, at that stage both on the question of liability and of quantum. So far as quantum was concerned, both parties were given permission to call evidence from no less than 16 different types of expert, including physicians, neurologists, speech therapists, case management experts and others of the many professional disciplines that are now properly engaged in dealing with the future progress of these extremely serious, distressing and burdensome cases. The claimant's schedule of damages served in July 1999 was based upon the assertion that the first claimant had an unaffected life expectancy. No application was made for any expert to examine the first claimant on behalf of the defendants and no defence expert did so.
  5. The admission of liability in respect of the claimant took place in September 1999, and in October 1999, somewhat but not grossly after the period ordered by the court, the defendants served a counter-schedule of damages. That schedule acknowledged a full life expectancy. It will be convenient here to say that that period, for a person of Mrs Parkin's age, was an expectation of some 51 years, indicating a multiplier in the region of 26 on the discount rate then operating. The defendants served only four reports on care accommodation, assisted technology and occupational therapy, and served no medical evidence as to quantum; nor sought to do so. On 29th October 1999 the court made an order precluding the defendants from relying upon any further evidence other than that which had already been served. In January 2000 the defendants agreed five of the expert reports that had been served by the first claimant, including the report by Dr. Wade to which I have already referred.
  6. The trial, now a trial only on quantum, opened on 26th January 2000 before Buckley J. Evidence was heard on that day and on two subsequent days. It became clear that a major issue was whether, as Mrs Parkin and those assisting her wished, she should be cared for in her own home; or whether she should be cared for in some form of institutional (I do not use that word derogatorily) accommodation particularly designed for people with her extensive disability.
  7. After evidence in relation to that issue had been heard, Mr. Robert Owen QC, who was then representing Mrs Parkin, properly conceded that the appropriate course in the circumstances would be for Mrs Parkin to be cared for in her own home. That was an important departure or development in the case. Very sensibly, it was determined that the court should adjourn for, as it turned out, more than two days so that negotiations could take place between the parties (Mr. Owen leading for the defendant, Mr. Grace QC leading for the claimant) as to the implications of the decision that Mrs Parkin should be cared for at home. It was envisaged that eventually it would be sensible for the case to be adjourned generally so that the way in which Mrs Parkin reacted to home conditions could be properly assessed, it not having been possible to do that thus far, and also that any implications that the home situation had for the quantum of damages should be before the court. After those extensive discussions leading counsel returned to court and informed the judge that substantial agreement had been reached. An order was drawn and approved by the judge in detailed terms as to the settlement of various heads of damage, particularly as to past losses and certainly items of future cost. Then the order recited as follows:
  8. "Upon the parties agreeing and the court approving the above agreements as to future losses acknowledging on the evidence currently before the court that the First Claimant has a normal life expectation and that the full life multiplier upon a 3% discount as at today's date is 26.2 years and that the first claimant is most appropriately cared for in her own home."
  9. On that agreement it was ordered that the case be adjourned to a date to be fixed not before 1st October 2001; that is to say, a period of nearly two years in advance. It was reserved to Buckley J. It will be noted that there was recorded as agreed, not only that the claimant should be cared for in her own home, but also the life expectation and the implications for multiplier that had been envisaged in Dr. Wade's report and not there dissented from. It was also agreed that before the adjourned date various experts had permission to carry out assessments of the claimant and they were to serve supplementary reports no later than 2nd September 2001. Those experts were listed by name. They included a care expert on each side, a technical assistance expert on each side and a speech expert. It was envisaged and indeed specifically ordered that only those experts were to be permitted to advance further evidence before the court.
  10. Although it does not seem to have been emphasised at any stage before the judge, one has to have in mind, in respect of the defendants, the order that has already been referred to, of 29th October 1999. So far as the defendants were concerned, specific permission would be needed for further evidence to be adduced.
  11. It is then necessary to go forward a considerable period of time to 28th August 2001, that being, it will be noted, some five weeks before the date on which it was envisaged that the trial before Buckley J would recommence, and some 18 months or more since the order to which I have just referred. On 28th August the defendant Hospital Trust filed an application in court. That applied, first of all, for an extension of a modest nature for service of the defendants' counter-schedule; but also asked that the defendants be given permission to introduce independent expert evidence from four people, Mr. Mark Williams, a speech and language therapist; Miss Sharmin Campbell, case manager; Dr. Christina Williams, consultant in Rehabilitation and Disability; and Professor Strauss, who is a statistician; it being envisaged that the evidence was to be disclosed by 11th September 2001. The grounds for that change were:
  12. "(i) since service of the claimant's undated Schedule of Loss at 02.07.01 it is apparent that the pleaded claim has massively and unexpectedly increased from approximately 8.5 million to 13.5 million, and
    (ii) further evidence has come to light since the Approval Order of 02.02.00,
    (iii) the discount rate has been reduced by the Lord Chancellor from 3% to 2.5% thereby significantly increasing the whole life multiplier in this case."
  13. These were alleged to be together "a major change in the circumstances of the case".
  14. So far as the increase in the quantum of the claim is concerned, the judge referred to this briefly at page 10G of his judgment, pointing out the rise in the total claim already indicated and saying that the largest increase was in the cost of future care and case management which had risen by about 3m. That was recorded in and arose as a result of the evidence called on behalf of the claimant, for which permission had been given in the year 2000.
  15. The new application, to call extensive further evidence, was made very shortly before the trial. It was plainly highly inconvenient that that should be so. I accept entirely what we were told by Mr. Havers QC, who appears today as he appeared before Buckley J on this application, though not at the substantive trial, that efforts had been made by those instructing him to see whether it was possible for Buckley J, to whom the case was reserved and who knew a great deal about it, was available to hear this summons. Unsurprisingly, the judge was not available in the fourth week of August, and the matter therefore had to come before the judge in chambers.
  16. Faced with this application and faced with the strenuous submissions that were made on paper before him, it is not surprising that the vacation judge did not feel able of his own motion to discharge the application. What he did do -- indeed, it is difficult to see how any other course could have been open to him -- was to stand the application over to Buckley J on the first available date. But the result of that order was necessarily, and the vacation judge so ordered, that the trial date envisaged for the resumed substantive hearing had itself to be vacated. It was not known until Buckley J had dealt with the application what further evidence might be necessary and proper on the part of the claimant, should the defendants' application be granted.
  17. I have to say that it is wholly unsatisfactory that matters developed in that way. They developed in that way because, at least so far as the evidence of Dr. Williams and Professor Strauss was concerned, any decision to call them or to seek to call their evidence had not been taken until a very late hour. Moreover, as again we will shortly see, their evidence relates to the question of life expectancy, an issue that everybody had thought for many months to have been agreed, and no longer in contention. Professor Strauss was not instructed until 13th August. That in itself effectively made it impossible that any application based upon Professor Strauss's evidence could be heard by the trial judge. I shall have to come back to that aspect of the case and the late change in posture on the part of the defendants very shortly, but I cannot forebear from emphasizing at this stage that it is wholly unreasonable to expect a judge, who is not seized of the trial and who was -- I speak from experience in this respect -- a vacation judge in the middle of August, to grapple with matters of the detail, complexity and anxiety that arise in this case. That arose, not I accept because anyone was trying to keep the case away from Buckley J, but because the matter was not put in hand until a time at which Buckley J in all reality could not be available.
  18. It is necessary to say something about the basis upon which this application was made; that is to say, that the three matters relied on counted as a major change in the circumstances of the case. It will have been noted that that term does not appear in the order that was made in February 2000. However, it does appear in the exchanges between counsel and the court that preceded Buckley J making that order; although, for reasons I shall explain, the detailed wording of those exchanges is now of less centrality in this case than we had thought at the beginning of the day. The background to this application is so much affected by those exchanges that I think I must necessarily set them out:
  19. "Mr Grace: My Lord, can I just for the avoidance of doubt, I think I just did, but can I just check -- on pages 5 and 6 of the draft order in respect of Mrs Parkin are there a total of three manuscript alterations?
    Mr Justice Buckley: Two on page 5 and one on page 6, yes.
    Mr Grace: Good. (Pause)
    Mr Justice Buckley: Mr Grace, again just to avoid any possible future arguments, page 3 the first and upon(sic) paragraph.
    Mr Grace: Yes.
    Mr Justice Buckley: The reference to 'on the evidence currently before the court', that is intended, I take it, to refer only to life expectation.
    Mr Grace: My Lord, this has been the subject of as much debate as any other point in the order and the effect of it is to apply to both, it qualifies both life expectation and that she is appropriately cared for in her own home.
    Mr Justice Buckley: What is the effect of this, is it to re-open then the question of the appropriate regime?
    Mr Grace: My Lord, no. It is intended that the position should remain as it is at the moment. That is to say, in other words the evidence as your Lordship is aware and was indeed conceded by the defendant, that it was more appropriate for her to be cared for in her own home.
    Mr Justice Buckley: Yes.
    Mr Grace: But one has to acknowledge that it may be that the defendant will seek to say on the adjourned hearing that in the light of events that may have happened in the intervening period, that is no longer appropriate. We very much hope and expect that will not be the case. We hope and expect that she will continue to be cared for and will be cared for successfully in her own home. But in the end on the basis that if we were to come back to court and the court were to find that everything was totally upside down as compared to what is now anticipated, then on the basis that the court does not act in vain, it would be somewhat fruitless to seek to argue that matters should remain as they are put to be as of now, 2nd February 2000.
    So whilst the position is and remains that she will be and should be cared for at home, one has to acknowledge at least the possibility that something may happen in the intervening time. That is really all it is intended to cover. That was the defendant seeking that protection and, as I say, we had as much debate about that as we did about any other aspect of the case.
    Mr Justice Buckley: Yes.
    Mr Grace: I emphasise that it would require, obviously as far as we are concerned, not simply a rerun of Mr Blackshaw's arguments, and I am sure that my learned friend accepts that is the case.
    Mr Owen: It may assist if I say at this stage, my learned friend has set out very clearly the nature of the discussion between us and why it is that that is incorporated.
    My Lord, it is to cover the possibility -- one can of course not put it any higher than that -- that there may be a major change of circumstances which would have a direct bearing upon both of those limbs; the question of multiplier and the question of appropriate place for care. It is to ensure that the court would not be dealing with the situation divorced from the realities. My Lord, that is why it is there. It is to cover that possibility. (Pause)
    Mr Justice Buckley: Yes, I am just wondering whether it is sufficient for both your purposes, that we leave that paragraph on the basis that the transcript of today can be obtained if necessary.
    Mr Owen: Yes.
    Mr. Justice Buckley: Or whether it would be more desirable to spell it out. As drafted, and I do not say this critically at all, it would just permit of argument as to precisely what was agreed. Certainly the introduction of the present evidence reference seems to open up the argument, which you both agree I think may be opened up but only in the event of developments and only on the basis of evidence as to future development, and not re-opening what has happened to date.
    Mr Grace: Yes.
    Mr Justice Buckley: The transcript I think will now make that plain.
    Mr Owen: I hope so, my Lord. I sought to choose my words with care, and I indicated that they would only be reopened if there was evidence of a major change in circumstances.
    Mr Justice Buckley: For my part I think probably what is on the transcript -- well, I delete 'probably'-- is clear enough.
    Mr Grace: Yes. It may be if there is a change in circumstances the defendant might argue they were major and we might say they were minor, but we would have to deal with that as and when the factors arose, if they did."
  20. What was sought to be argued before Buckley J in this application was that it had been the intention of Mr. Robert Owen when addressing the judge, and that it had been agreed by Mr. Grace, to reserve the possibility of future developments affecting not only the question of the cost of care but also the multiplier.
  21. The new evidence that was sought to be adduced, that which is most controversial, is the evidence of Dr. Williams and Professor Strauss. They contest, in terms to which I will come, the correctness, the reliability and effectively the professional competence of Dr. Wade, the opponent on behalf of the defendants as to life expectancy. It was principally the emergence of their evidence that was said to be the major change of circumstance in the case. That evidence had caused the defendants to think that the previous agreement, based on the view of Dr. Wade as to life expectancy, had been seriously mistaken, and that the court would be serious mistakenly if it acted on such evidence. The defendants said that such a development fell within the concept of major change of circumstances to which Mr. Owen had referred when explaining the order to Buckley J, and therefore the adduction of the evidence of Professor Strauss and Dr. Williams fell within the terms that had been agreed collaterally with regard to the order. That was the explanation of the expression in the order referring to the acknowledgement of normal life expectancy "on the evidence currently before the court".
  22. I am entirely certain, as was the judge (who, it must be remembered, had been the judge who had the benefit of seeing and hearing the exchange between Mr Owen and Mr. Grace) that no such intention was present in those exchanges; that Mr. Owen did not intend anything that would extend to the adduction of further experts of the type envisaged; and that certainly Mr. Grace had not agreed, either actively or passively, to any such thing. That seems to me clear, as it was to the judge, from a fair reading of the words, but also because of the specific terms in which Mr. Owen expressed himself. At page 10G he said this, as already set out:
  23. "It is to cover the possibility -- one can of course not put it any higher than that-- that there may be a major change of circumstances which would have a direct bearing upon both of those limbs; the question of multiplier and the question of appropriate place for care."
  24. What was plainly envisaged by Mr. Owen, and what the judge accepted, was that there might be physical developments in the period up to the trial which the court ought to take into account, not only on the question of care but also on the question of multiplier and life expectancy. The type of development that Mr Owen was envisaging was a development that affected both of those issues equally. The only development that could affect both issues would be some physical development in Mrs Parkin's condition. If she had the misfortune to suffer a stroke or some deterioration in her condition, that would or could impact both on her life expectancy and equally on whether it was right that she should be cared for in the home or in institutional surroundings. What Mr. Owen did not envisage, and what the judge did not agree, and what the order did not mean, was that there could be called further evidence of an expert nature under the head of "change of circumstances". That is the nature of the evidence of Professor Strauss and Dr. Williams, which does not deal at all with any development in Mrs Parkin's condition since she was seen by Dr. Wade, but which criticizes on technical and professional grounds the conclusion that Dr Wade had reached. There is no ground for saying that the evidence of Professor Strauss and Dr Williams represented a change of circumstances, or that its discovery, or a decision of the defendants to adduce it, represented such a change.
  25. Although this matter was strenuously argued before the judge and formed the central point, it is fair to say, of the submissions before him; and formed the central aspect of the written submissions to this court; Mr. Havers, after some exchanges with the court, no longer placed in the forefront of his argument that the observations of Mr. Owen could be called into assistance to justify the adduction of the evidence from Professor Strauss and Dr Williams. Mr. Havers did not concede that the order did not extend to new evidence, but as I have indicated that I would, without hesitation, find that it did not.
  26. That meant that the only question before the judge was the exercise of his general discretion as to whether he should permit the evidence of Professor Strauss and Dr. Williams to be adduced at all. Indeed, the argument about whether the evidence constituted a major change of circumstances was only itself relevant to the question of the proper exercise of the judge's discretion, because it was definitely not the defendants' case that there had been within the exchanges some contract or other binding agreement that inhibited the judge as a matter of law from exercising his general discretion as a trial manager. Therefore, one has to approach the question of the judge's discretion, and the elements the defendants argue should take their part in it, against the background that the major fact that was relied on before the judge as governing the exercise of his discretion was misconceived, and was found by the judge to be such. The argument could only be that if the position had been reserved by Mr Owen that could not bind the judge, but was a matter that he should take into account. As the position was however not reserved by Mr Owen, that element drops away.
  27. What was left? Effectively two points were relied on by Mr. Havers, the first more substantial than the second. His first point emphasised that the evidence of Professor Strauss and Dr. Williams represented what he described as a devastating critique of the evidence and reliability of Professor Wade. As Mr. Havers argued, I think rightly, their evidence did not identify the difference between themselves and Dr. Wade as an acceptable difference of opinion. They said in clear terms that his position was wrong and unsupportable. Professor Strauss said that Dr. Wade's statement of full life expectancy represented a common error among people who were unfamiliar with the subject, and was contradicted by all available actuarial data. Professor Strauss estimated Mrs Parkin's life expectancy to be about 15 additional years and said that Dr. Wade in thinking otherwise must be wrong. His opinion to that effect was based upon extensive statistical and actuarial material collected by Professor Strauss in the course of a long and distinguished career as a medical statistician.
  28. Dr. Williams is a consultant in disability medicine and is particularly experienced in the case of severely neurologically damaged persons, having been a consultant in the leading centre, the National Hospital in Queen's Square in London. She commented that it was difficult to understand how Dr. Wade could not have taken into account the risk factors inherent in Mrs Parkin's condition, of immobility and gastrostomy feeding. Her opinion was that, although it was difficult to estimate life expectancy in such a case, the life expectancy was one of 15 years. She had not examined Mrs Parkin. She was working solely from documents. The reason she had not examined Mrs Parkin was that the court had ordered in February 2000 that there should be no examination of Mrs Parkin other than by the persons stated in the order, and the claimant's solicitors were not in the circumstances minded to waive that order.
  29. The judge had to consider this evidence. In looking at what he said about it, it is important to note that he reviewed this evidence and the other evidence in the case in the context of what he believed at that time to be the major part of the defendants' case, the question of major change of circumstance. His observations have to be read in that context. The judge, so far as Professor Strauss was concerned, set out Professor Strauss's comments, that I have already set out, as to the almost unique nature, as he thought, of Dr. Wade's opinion, and the judge went on in the following terms at page 16E of his judgment:
  30. "I accept that is strong comment, however actuarial data going back over a 100 years would need to be looked at with great care because it is well known and accepted and the evidence in this case illustrates how dramatically care regimes and the expertise involved have improved in recent years. Without further evidence I cannot judge how relevant actuarial or statistical evidence would be to the present case based, as it inevitably is, on past studies. I do not know the view of the medical profession on such evidence. All I need say is that whilst Professor Strauss' evidence would doubtless be extremely interesting it falls far short of persuading me that the court, or the defendant's advisers in hitherto accepting Dr Wade's evidence, can now be seen to have acted on a mistake or some wholly erroneous basis sufficient to bring the matter within the change of circumstance Mr Owen adverted to."
  31. As to Dr. Williams' evidence and the factors that she said Dr. Wade had not taken into account, the judge said this:
  32. "The 'two factors' are clearly the immobility and gastrostomy feeding. Both those factors are expressly listed in Dr Wade's report. True Dr Wade in his concluding prognosis paragraph does not list them again, but to conclude that despite expressly describing those problems in the body of his report he has then somehow ignored them in arriving at his prognosis is, in my view, untenable.
    I acknowledge that on its face Dr. Williams' report is strong evidence that Mrs Parkin's life expectancy should be regarded as reduced, but the fact remains that Dr Wade's report is to the contrary. Mr Havers cannot and does not suggest that Dr Wade has failed in some way in his duty to the court. He is a respected consultant and, indeed, the defendant was prepared until very recently to accept his report.
    I am wholly unpersuaded that Dr Wade's report is now shown to be so 'unsupportable' that a 'major change in circumstances' has arisen. Manifestly all that has occurred is that the defendant's advisers have taken the opportunity to obtain further evidence, probably when they fully appreciated the likely size of, or increase in, the claim and have thus done what Mr Owen, in my judgment, clearly and fairly said they would not do when explaining his position."
  33. Mr. Havers criticizes those passage in the context of the judge's consideration of the exercise of discretion by saying that they put the case too high. It was not necessary for the claimant to demonstrate that Dr. Wade's report was unsupportable, merely to demonstrate that there was evidence available to the court which, if it was accepted after further consideration and no doubt further evidence on the other side, might show that Dr. Wade's report was not merely controversial or even wrong, but plainly unsupportable.
  34. However, the judge said what he said in the context of reviewing the way in which the case was put to him, as to major change in circumstance. He was right to set the standard that he did. But it was also legitimate, quite apart from what was said to turn on Mr. Owen's statement, to require in these circumstances a high test of cogency before the evidence was allowed to weigh with the court. The judge was facing an application to adduce evidence on a matter that had been agreed for several years, evidence that was undoubtedly available to the defendants' advisers from the very first day of the case, had they wished then to challenge Dr. Wade's view. The judge was also right to be cautious about the cogency of the evidence, particularly that of the statistician. The judge brought to this case great experience in personal injury litigation, and he was right to be cautious in thinking that the statistical evidence in particular would necessarily, or indeed might very likely, lead to different conclusions from those adopted by Dr. Wade. I do not think that he made an error in the way in which he approached this evidence. I do not think that his exercise of discretion was damaged, much less nullified, by the way in which he approached the evidence of Professor Strauss and Dr. Williams.
  35. The second ground that it is said that the judge should have taken into account was the increase in the size of the claim: which, as we have seen, is substantial. The short point about that is that that increase was caused by the very considerable increase in the claimants' claim so far as the multiplicand is concerned, on the basis of the new evidence that they had been permitted to adduce in Mrs Parkin's new situation. That evidence is strongly contested, and at the resumed trial the defendants indeed seek to contest it. That is their prerogative. But it cannot possibly be the case that an increased claim so far as the multiplicand is concerned in itself permits or potentially permits the revision of a previous decision as to the multiplier. I have to say that I am wholly unpersuaded as to that part of the argument.
  36. What did the judge say? He of course had gone in detail through the argument based upon change of circumstances and rejected it. He then said this at page 20A:
  37. "Thus it remains for me to exercise my discretion on the basis that the claim has increased very greatly and the defendant now wishes to make an issue of life expectancy having agreed it at the outset, and made plain at the time of the consent order that it would not seek to do so at the adjourned hearing.
    I have to say, I find the defendant's attitude unattractive. It is an attempt to go back on their word in a case of the greatest sensitivity and one that has already caused untold distress to all concerned, particularly Mr Parkin. The possibility of an increase in the cost of the home regime was always apparent. In my view, it would be grossly unjust now to open a new issue, with all that that would involve, because the increase happens to be a very large one. I have considered all the circumstances relevant to the parties themselves, but I also feel that to allow a party to withdraw an agreement or concession in these circumstances would be calculated to disrupt the just and convenient administration of civil litigation.
    I might have added that Mr Grace submitted, and I accept, that but for Mr Owen's clarification and reassurance in open court he would not and would not have been instructed or permitted to agree to the adjournment. As he put it 'as matters then stood evidentially the claimant was bound to succeed on the two major issues of home regime and life expectancy.' I accept that latter statement."
  38. In my view, those were all considerations that it was entirely legitimate for the judge to take into account. It is said, however, that he failed to give sufficient weight to the guidance given by this court in Gale v Superdrug Stores Plc [1996] 1 WLR 1089, a case put before him which he does not refer to in his judgment. The principle that was said to come out of that case is best found in the observations of Millett LJ at page 1099:
  39. "I respectfully agree with the observations of Ralph Gibson LJ in Bird v Birds Eye Walls Ltd ... when he indicated that a defendant should be relieved of an admission and allowed to withdraw it or amend it 'if in all the circumstances it is just to do so having regard to the interests of both sides and to the extent to which either side may be injured by the change in front.'
    In conformity with the approach of the court towards applications to amend the pleadings where no withdrawal of an admission is involved, I consider that the court should ordinarily allow an admission to be withdrawn if it can be done without injustice to the other party and if no question of bad faith or overreaching is involved."
  40. That was a very different case from this. There had been an admission of liability in correspondence. At the pleadings stage a defence was lodged denying liability, attributing liability to a third party and also pleading contributory negligence. It was sought to strike out that defence on the basis of the previous admission. Here, however, we are not concerned simply with the withdrawal of an admission and are not concerned with something that occurred at the pleadings stage before the case had even properly got under way. We are concerned with an order of the court, reached after full consideration by the parties, including leading counsel on both sides. I cannot think that this court, in the observations it made in Gale v Superdrug, had anything like the present circumstances in mind. The judge was quite right not to think himself constrained by Gale and in my view he was right not to refer to it in his judgment.
  41. Mr. Havers summarizes this part of the case by saying that there are a number of key factors that the judge did not give sufficient weight to. Those were (1) the striking nature of the evidence of Professor Strauss and Dr Williams; (2) the financial consequences in the increase from 8m to 14m when it had been calculated on a 15 year life expectancy at best; (3) the real prejudice to the defendants of having to pay that large sum; (4) the fact that the payment would have to be made out of public funds by the National Health Service, and (5) the danger that the trial would be conducted on a false basis. True it is that the judge did not refer to all of those in the passages to which I have referred. He was plainly aware of them all. He introduced the passage at page 20 of his judgment by pointing out that he was exercising his discretion on the basis that the claim had increased greatly. It was self-evident, and would be supererogatory to say, that it would be detrimental to the defendants to have to pay a higher rather than lower claim.
  42. So far as the conduct of the trial was concerned, the judge himself was the man who was going to do that. It was for him to decide the fair way in which the trial was to be conducted. As far as the point about the National Health Service is concerned, that does not appear to have been put before the judge. Public bodies appear in the courts as litigants like anybody else. They are constrained by the same rules as everybody else.
  43. The positive factors that the judge did and could take into account were that the defendants were seeking to go back on an agreed order; there had been a lengthy and unexplained delay in seeking evidence to counter the life expectancy evidence; and the extra stress that would be caused by the adjournment of the case. Mr. Havers argued that it was not legitimate for the judge to take that into account because the disruption had already occurred by reason of the adjournment granted by the vacation judge. But that adjournment, as I have already pointed out, was caused by this application and by the way in which it was moved. If it had been moved when it should have been moved, and before Buckley J, the delay would not have occurred. The evidence sought was easily available and had been so over the whole period of the case; and it was fairly said before us that a deliberate decision was taken to stand on the evidence of Dr. Wade after advice was given by leading counsel. There is no basis on which the judge's exercise of discretion can be criticised. I would dismiss the appeal.
  44. There is a cross appeal in respect of the judge's decision to permit the calling of the two other witnesses whose circumstances are less dramatic than those of Professor Strauss and Dr Williams, the two witnesses already referred to, Mr Mark Williams, a speech and language therapist, and Miss Sharmin Campbell, a case manager. The judge said that those witnesses in his view fell into a different category. Their evidence was not seeking to introduce an issue that had previously been conceded. Although they were not listed amongst the permitted new witnesses, it was legitimate for them to be called in the context of the large increase in the claim that was now being made. That was a matter, if it was a matter for the judge's discretion, in which the judge properly exercised that discretion, and Mr Grace properly agrees that that is so.
  45. He says however that the judge did not have a discretion to exercise in this case, because there had been an agreement between the parties, incorporated in or evidenced by the order of 2nd February 2000, that new evidence should be limited to those people there listed. Therefore the court could not intervene. He took us to the recent decision of Neuberger J in Ropac Limited v Inntrpreneur Pub Company and from within that decision to the quotation from Lord Denning MR in Siebe Gorman [1982] 1 WLR 189. In that latter case Lord Denning distinguished between a consent order that evidences a real contract between the parties and a consent order which is simply an order to which the parties had not objected. Mr. Grace said that this case fell into the previous category. It is, however, striking that Neuberger J held that he had a discretion to intervene of a general nature, even in the first category referred to by Lord Denning, and even in a case such as that before him, where the consent order was a consent that comprised the whole of the litigation; that is to say, ended all the disputes between the parties.
  46. I am minded -- I use that expression carefully -- to agree with Neuberger J. It seems to me that, quite apart from any other consideration, in the world of the Civil Procedure Rules it is no longer the case, nor should it be, that the agreement or determination of the parties as to how cases should be conducted should deprive the judge of his overall discretion to conduct the case fairly and to control carefully, not least from the point of view of expense, how it should develop. I do not need to base the present decision on that general conclusion and I do not do so. In my view, the order in this case clearly fell within the second category envisaged by Lord Denning in Siebe Gorman. It was not an order, at least so far as it extended to the calling of further evidence, that was intended to conclude finally a specific dispute between the parties. It was clearly an arrangement made with the approval of the judge for the future conduct of the litigation. It was therefore only a consent order, in my judgement in a rather technical sense, and certainly not one that evidenced any sort of contract in the sense spoken to by Lord Denning. I therefore think that Mr. Grace is not correct in saying that the judge did not have discretion to admit this evidence. He did have that discretion. As I have said, it is fairly accepted that his exercise of that discretion cannot be criticised in this court. I would dismiss the cross appeal.
  47. LORD JUSTICE LATHAM: I agree.
  48. SIR DENIS HENRY: I also agree.
  49. Order: Appeal dismissed; cross appeal dismissed.


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