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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Clair Sellar-Elliott v Howling  EWHC 443 (QB) (03 March 2016)
Cite as:  EWHC 443 (QB)
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QUEEN'S BENCH DIVISION
HIGH COURT APPEAL CENTRE
ORDER OF MASTER COOK DATED 29 OCTOBER 2015
APPEAL REFERENCE: QB/2015/0531
Strand, London, WC2A 2LL
B e f o r e :
| CLAIR SELLAR-ELLIOTT
||Claimant / Respondent
|- and -
DR SARAH HOWLING
Simon Dyer (instructed by Penningtons Manches LLP) for the Claimant / Respondent
Hearing date: 15 December 2015
Crown Copyright ©
Mr Justice Sweeney :
i) An application by the Defendant/Appellant (hereafter "the Defendant") for permission to appeal an order made by Master Cook on 29 October 2015 that the Defendant make an interim payment of £100,000 to the Claimant/Respondent (hereafter "the Claimant") by 12 November 2015.
ii) An application by the Claimant to set aside an Order made by Singh J on 16 November 2015, by which he granted a stay of Master Cook's Order until the determination of the appeal.
" ..For the avoidance of doubt, it is denied that the Claimant's mass underwent a malignant transformation after 8 August 2008. It is averred that by 2008 the tumour was already a well differentiated carcinoma. Causation is the subject of continuing investigations and the Defendant reserves the right to plead further upon receipt of expert evidence."
"The court may only make an interim payment where any of the following conditions are satisfied - .
(c) it is satisfied that, if the claim went to trial, the Claimant would obtain judgment for a substantial amount of money (other than costs) against the Defendant from whom he is seeking an order for an interim payment whether or not that Defendant is the only Defendant or one of a number of Defendants to the claim ..."
i) The Defendant's position was that the Claimant's clinical natural history was compatible with the tumour being a well differentiated HCC in 2008 and not an HCA.
ii) Professor Price's preliminary view was supportive of the Defendant's pleaded case and she advised that the change in size of the lesion in the period between 2008 and 2012 was compatible with a very slow growing, well differentiated, HCC and that the evidence suggested that it was already a well differentiated HCC by 2008.
iii) Professor Price had been provided with a copy of Professor Middleton's report and had confirmed that it did not alter her view as to the nature of the Claimant's tumour at the time of the admitted negligence in 2008. Thus causation was unlikely to be resolved prior to the joint statement by the experts - which was due to be served by 6 February 2016.
iv) The Defendant was not yet in a position to serve Professor Price's report, as it had not been finalised in part because of the perceived need for evidence from a histopathologist, and in part because of problems with disclosure of the Claimant's medical records.
v) The Defendant's position was that it was not accepted that, had there been earlier diagnosis, the extent of surgery and follow up treatment would have been much reduced. On that basis the damages that the Claimant was likely to recover were likely to be extremely limited and far less than the £100,000 requested as an interim payment particularly in the light of the earlier voluntary payment of £17,500.
vi) It was premature to ask the Court to consider an application for a further payment, and the application should be adjourned until the Case Management Conference on 19 February 2016.
i) The Defendant had had ample time to investigate the core issue of whether or not, in 2008, the mass that was identified was already a well differentiated HCC; the Defence must have been pleaded on the basis of some expert evidence; and Professor Price had been able to put a letter in relation to histopathology before the Court on 15 October 2015.
ii) Professor Middleton's report was coherent, logical and presented a powerful justification for his conclusion that the mass that was identified in 2008 was not malignant.
iii) In particular, his evidence that the lesion was simply too big to be an HCC; that its rate of growth in the period from 2008 to 2012 was too slow for it to be an HCC; and that the median survival rate for untreated HCC was about three months, with no patient being alive after three years, was compelling.
iv) Therefore it was close to inconceivable that the Claimant would still be alive in January 2012 (at the time of her initial HCC diagnosis) if the tumour had been malignant as early as 2008.
v) Hence, in the absence of any evidence to the contrary, the Court could be satisfied that the Claimant would receive substantial damages at the conclusion of the case.
i) The Defendant had pleaded a defence, which was based on the opinions of her experts; was not in breach of any court order or rule; and was not required to serve the evidence of Professor Price until 11 December 2015.
ii) An interim payment application should not effectively be used as a vehicle to force the defendant's hand and require her to produce her expert evidence at a point before the court had ordered its exchange.
iii) The evidence that the Defendant would be serving in due course would be supportive of the averments in the Defence and of the relevant aspects of Miss Fox's second witness statement (above).
iv) The letter from Professor Price that had first been placed before the Court on 15 October 2015 provided further support for the contention that there was a fully arguable defence.
v) In all those circumstances, the court could not come to the conclusion that the Claimant would succeed in recovering substantial damages.
"The legal and evidential burden of proving contributory negligence at trial is on the defendant. On an interim payment application there is an evidential burden on the defendant to put before the court material raising an issue of contributory negligence. The task of the court is to apply the relevant legal test to the evidence before it. There may be cases in which such material cannot reasonably be expected to be available to a defendant at the time of the application. This is not one of them. No suggestion of contributory negligence has been raised in the two years since the accident and prior to the service of the defence"
"18) In that particular case the judge went on to hold that the Master was entitled, on the basis of the evidence before him, to discount the defendant's argument that there was likely or might likely be a substantial reduction in damages due to contributory negligence, notwithstanding the fact that the contributory negligence had been pleaded in the defence.
19) It seems to me that approach of the judge in relation to arguments of causation is comparable. Whilst the Claimant must prove his case, to me there must be, at the stage of an interim payment application, an evidential burden on a defendant to raise matters, on the basis of evidence, which would justify the court in concluding that a Claimant would not succeed in obtaining substantial damages. In other words, in my judgment, a defendant must go further than simply saying: we have pleaded it, it is there in the pleading and verified by a statement of truth when faced with compelling evidence from the Claimant. In particular, I take into account the fact that the defendant has had a considerable period of time to consider the application that is put before me today.
20) The application was issued in May 2015, and I note the first witness statement from the defendant in response was in June 2015. Whether or not a defendant needs to serve its entire expert evidence or its expert reports in final form, it seems to me that a defendant who is maintaining a causation defence such as this should be in a position to provide particulars of that defence, and to counter any formidable argument that is made against them on an application such as this.
21) In my judgment the two arguments that have been raised by Professor Middleton are indeed formidable. In my judgment, such arguments require reasoned criticism before they can be rejected or discounted or before it can be assumed that such evidence might be forthcoming in the period up to trial. On the basis of the material before me, no such criticism has been put forward by the defendant.
22) What then is the position of the court? I have to judge these matters on the basis of the evidence as it is before me. Based on that evidence I must consider what a trial judge might do. If this is the state of the evidence before a trial judge, I think I can be satisfied that the claimant will succeed in obtaining a substantial award of damages. I fully appreciate that the defendant may well in due course serve expert evidence which goes to undermine the conclusions of Professor Middleton. But, it seems to me, if the defendant is in a position to do that, she is in a position today to put forward arguments either in summary form or supported by letter which would go to undermine the two very powerful pillars of Professor Middleton's argument to which I have already referred.
23) In these circumstances, the amount of an interim payment not seriously being in dispute between the parties, I make an order for a payment on account of damages in the sum of £100,000. That is in addition to the £18,000 that has already been paid."
The Grounds of Appeal
i) Drew a parallel with and relied upon the decision in Smith (above), a case on the inter-relationship between interim payment applications and allegations of contributory negligence, which was different on its facts and turned on different legal principles.
ii) Penalised the Defendant for failing to provide the Court, on an interim payment application, with detailed expert medical evidence to rebut evidence unilaterally served by the Claimant in circumstances where:a) the Defendant denied causation and pleaded a positive case in the Defence;b) the Defendant served evidence from her solicitor (a) confirming that the Defence was supported by reputable expert evidence and (b) confirming that the Defendant's expert had seen Professor Middleton's report and that it did not alter her views;c) the Defendant had not broken any rule or Court order and was under an obligation to disclose expert evidence by the 11th of December 2015 in any event (i.e. in about 6 weeks).
iii) Criticised the Defendant for failing to respond to the Claimant's evidence, the application for an interim payment having been made in May 2015. He did so without taking account of (or knowing) that the Claimant did not serve her evidence until 23 September 2015.
iv) Categorised the Defendant's response to the application as saying no more than "we've pleaded it"; the Defendant's evidence went further than that and established that the causation defence was supported by reputable expert opinion.
v) Concluded he could be satisfied that the Claimant's expert evidence would prevail at trial, knowing that the Defendant's expert disputed it.
vi) Failed to take into account the consequences for litigants in general if his decision is correct, i.e. that Claimant's can apply for an interim payment, unilaterally disclose supportive expert evidence and then force early disclosure of expert evidence from a Defendant or, if it is not forthcoming, obtain an interim payment.
vii) Inferred that because the Defendant chose not to serve its expert evidence (or to provide a reasoned expert response to Professor Middleton's evidence) that the Defendant had no arguable defence.
i) The Defendant positively alleged in her Defence that the mass was malignant in 2008 and that the Claimant would thus have required the same treatment with the same result, even if the malignancy had been diagnosed much earlier but had given no details as to why she said that.
ii) Professor Middleton's report provided powerful and cogent reasons as to why the mass was not malignant in 2008 including, in particular, given that the average sufferer survives three months, 90% are dead within 2 years and no one was alive after 3 years, it was highly likely that if the mass had been malignant the Claimant would have been dead long ago.
iii) The Defendant had had 18 months to investigate causation, and the benefit of the early disclosure of Professor Middleton's report on 23 September 2015, and there was thus no good reason why the Defendant could not provide evidence, in one form or another, for her allegation that the mass was malignant in 2008.
iv) It was not, and could not be, suggested that the Claimant had any oblique motive in making the application, on the contrary, she had been in desperate need; nor that Defendant had been ambushed or taken by surprise, or had had insufficient time to investigate and formulate her causation case; nor that Professor Price had had insufficient time to consider Professor Middleton's report; and nor that there was insufficient time for Ms Fox to include a reasoned response in her second witness statement.
i) On an application for an interim payment the Claimant has to satisfy the court, upon the balance of probabilities, that the requisite conditions have been fulfilled .
ii) On an application under CPR 25.7-(1)(c) the Claimant must therefore satisfy the court, upon the balance of probabilities, that if the claim went to trial, the Claimant would obtain judgment for a substantial sum of money from the Defendant .
iii) That means that the court must be satisfied, upon the balance of probabilities, that if the claim were to go to trial then, on the material before the judge at the time of the application for an interim payment, the Claimant would actually succeed in her claim and furthermore that, as a result, she would actually obtain a substantial amount of money .
iv) It is not enough for the court to be satisfied, upon the balance of probabilities, that it is likely the Claimant would obtain judgment, or that it is likely that she would obtain a substantial amount of money .