Update – Requirement to give due consideration to the need for updated witness statements during the life of the claim.
CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770 (KB), Mr Justice Ritchie, High Court of Justice, Kings Bench Division, is important for anyone involved in litigation where witness evidence is required and in particular in cases spanning several years or where the circumstances covered in witness evidence are developing or subject to change.
The Claimant was a young girl aged 8 years and 4 months who sued the Defendant, by her Litigation Friend, for damages for negligence, resulting in her suffering cerebral palsy. The parties corresponded under the clinical negligence pre-action protocol and liability was admitted in full by the Defendant on the 28th of May 2019. The Claimants issued a claim form on the 25th of February 2020. Liability was admitted.
The issues before the Court related to various substantial heads of loss within the quantification of the Claimant’s claim.
The Claimant sought a lump sum of £9,214,862 (gross of IPs) and a periodical payments order [PPO] of £394,940 pa. The Defendant accepted that the Claimant should be paid a lump sum of £3,301,938 (gross of IPs) and PPOs of £167,279 pa to age 19, and £324,254 pa from age 19. The main issues in the case related to the quantification of: Care, Case Management, Accommodation, Transport and Equipment.
Directions were made for the service of witness statements. The trial took place in June 2023. In October 2022 the claimant sought permission to rely upon updated witness statements from the case manager and the Claimant’s deputy. The Defendant did not object. However, the Claimant also sought permission to rely on other witness statements, also served in October 2022, from the Claimant’s support workers. Those witnesses provided evidence in respect of a specific issue between the parties over whether there should be two waking night carers or one sleeping night carer and one waking night carer, and also dealing with an error made by the Claimant’s care expert, in the first joint expert statement provided to the parties in April 2023.
The Claimant also sought to serve updated witness evidence, at the same time, from the Claimant’s support workers which were also served in October 2022.
The Defendant objected to service of evidence by those new witnesses.
The Claimant’s applications for permission to call additional witness evidence and for relief from sanctions came before Mr Justice Ritchie on the first day of the trial.
The Defendant’s objection was not based on any prejudice suffered by the Defendant, nor supported by any witness statement, but presented purely on the basis of a procedural objection that the Civil Procedure Rules had to be followed. The Defendant relied on CPR rule 3.9 and submitted that the Claimant had to pass through the test set out in Denton v TH White [2014] EWCA Civ 906.
The Claimant’s response to the Defendant’s objections was to point out that the issue on waking night care and sleeping night care had only crystallised in January 2023, when Miss Sargent provided her final report, advising that two waking night carers were required for the Claimant’s needs. Before that time Miss Sargent had advised one waking night carer and one sleeping night carer, pending her full review of the care workers’ notes for the care which the Claimant required at night.
It was noted that the time for service of statements, expert reports, trial schedule, counter schedule and joint experts’ statements were extended throughout the course of the litigation, however, no directions order was made in relation to the service of updating witness statements or additional care worker or lay statements. No provision was made in relation to evidence relating to up-to-date factual events, which amounted to the most relevant 1 year and 8 months of the Claimant’s life to date.
The application for permission to rely on the statements was treated as an application for relief from sanctions, in effect.
In considering whether there was a breach of a Court Order, the Court concluded that, on the facts of this case, the Claimant did not intentionally breach a Court order by failing to serve witness statements from the support workers in accordance with the directions provided by the Court. At the time that the lay witness statements were to be served, the expert evidence was not complete, the Claimant was 6 and a half years old and the issues for trial had not been identified.
Later in the case, when the issues crystallised, the Claimant sought to put in updating witness evidence. The Court accepted that this was a necessary step because the courts required an updated view of the factual evidence, particularly when dealing with a severely injured child. Likewise, it was reasonable to obtain evidence from the then employed support workers to deal with the key issues of waking night care, among others, so as to keep the Court properly informed of the up-to-date facts in the light of the emerging issues for trial.
Mr Justice Ritchie noted that the error was the parties’ joint failure to build into the main directions a provision for up-to-date factual evidence, for which both were found to share responsibility, however, did not consider the conduct amounted to a breach of the Court Order, or that, if there had been such a breach, it was sufficiently serious, inappropriate or intentional.
Whilst the Court were not required to consider the second stage of the test in Denton, and whether the application was made promptly and whether there was a good reason for the failure, Mr Justice Ritchie indicated that he would have found in favour of the Claimant, as the trial issues crystallised the evidence of the then employed care workers which became potentially crucial to the issues for determination at trial. Furthermore, the Defendant’s somewhat opportunistic objection to the lay witness statements was criticised by the Court.
Accordingly, the Claimant was granted permission to rely on the witness statements of the 3 care workers and relief from sanctions was granted to the extent necessary.
This is a High Court decision, so is persuasive rather than binding but it marks the latest decision in a number of cases addressing the importance of case management and appropriate consideration of the evidence required from the outset of the claim through to trial.
The case provides a good example of the application of the Denton judgement in relation to applications for relief from sanctions, and to the obligation upon the Court to consider all of the circumstances of the case in considering a claim for relief from sanctions.
Perhaps more importantly, however, although the comments were made obiter dicta, was the clear indication from the Court that parties are responsible for ensuring that directions and case management provide for all aspects of the evidence required by the Court at trial, including any updated witness, or it can be inferred, expert evidence.
Although the Claimant in this matter was successful in their application, the Court adopting a common-sense approach and having regard to age of and injuries sustained by the Claimant, the Court has now indicated the importance of due consideration and there is therefore significant potential in future cases for a Claimant who does not provide for the necessary updating evidence to find themselves unable to rely on the same, if the Court considers that it was reasonable to provide for the same in case management directions.
Certainly, it can be expected that Defendant practitioners may raise future objections in relation to updating evidence served outside of the remit of existing Court directions, so as to exclude otherwise relevant evidence, and potentially avoid or reduce the extent of a valid claim, on purely procedural grounds.
All practitioners should take care when filing Directions Questionnaires, Applications to vary directions, budgets and at any other case management hearing where directions are revisited, to ensure that full consideration is given to outstanding issues in the case and whether updated witness or other evidence will be required to prove those elements of the claim, and if so, to obtain a suitable direction from the Court.
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Corrina Sexton, Costs Consultant
09.08.2023