EWJ 60 April 2025 web - Journal - Page 23
misunderstandings in preparing its case, which he described as “deeply regrettable” – but he contrasted this
with “deliberate or tactical conduct to which the court
should be giving short shrift.” Yet almost every application of this sort will identify some sort of error or
change of heart that underlies it. The analysis here
seems a far cry from the quest for the elusive ‘good reason’ in a relief from sanctions application, for example.
a court should not make any very detailed assessment
of the prospects of success or ‘conduct a mini-trial’.
Referencing the well-known decision of Lambert J in
Arboleda-Quiceno v Newham London Borough Council
[2019] EWCA 2660 (QB), the judge commented that
this was not a case that “manifestly has glaring difficulties” or where “the evidence is so flawed that it is
not going to have any prospect of success”. It was “at
least reasonably arguable, and that is sufficient”.
(b) new evidence
Similarly in considering factor (b) the judge said that
there was “no material on which [he] could proceed or
infer otherwise than that the second defendant has
acted in good faith”: it had not “made an economic or
a tactical decision to make an admission and then had
a change of heart later or taken a conscious decision
not to investigate a particular aspect of a case which it
later regrets”. So although the ‘new evidence’ came
from a known witness, it was merely “an error and an
oversight” that it had not been elicited sooner.
(g) administration of justice
Finally in relation to factor (g), the interests of the
administration of justice, the judge rejected the
claimant’s argument that to allow the application
would ‘devalue the currency of an admission’, encouraging parties “to make decisions which are not
based on a proper investigation knowing they might
be able to retrieve the position later.” That was not the
case here because “there are none of the hallmarks of
a party which has played games or made any deliberate or conscious economic or other decisions not to
properly investigate”.
(c) conduct
One might think that factor (c) would have weighed
particularly heavily against D2 given the litany of delays and acknowledged errors leading to the application. And the judge accepted that D2 “should have
acted more quickly”, had not been ‘prompt’, and had
‘waited too long’ to disclose the new evidence and then
to make its application – all of which he again described as ‘regrettable’. But, he said, one should not
assume “that because a considerable amount of time
has passed that is fatal to the application” – unless the
lack of expedition “has some impact which goes
against the overriding object such as rendering the
position unfair when otherwise it would have been
fair.” The court, he said, “is not in the business of automatically punishing parties for failing to act with sufficient alacrity if, in reality, that has not had a material
impact on the conduct of the case.”
Since few if any of those factors could really be
characterised as weighing significantly in D2’s favour,
it was plainly crucial to his decision to allow the application that the judge did not consider that doing so
would have “a material impact on the fairness of the
proceedings or the ability of the other party to
advance its claim”. And if there is a lesson here for
claimants in responding to such applications, it is to
search for and highlight such prejudice as clearly and
distinctly as possible: in the judge’s words, “evidential
prejudice certainly cannot be assumed; it must be
established.”
(d) prejudice
The kernel of the judge’s approach therefore seems
to have been his observation that “there is no suggestion that there is evidential prejudice to the claimant
here”. Although the claimant would be ‘disappointed’
that she had to face additional defences, breach of
duty had never been admitted in full, and there were
no missing witnesses and no effect on the trial. Meanwhile the prejudice to D2 was ‘significant’ and while it
had brought that on itself “it has not done so intentionally or deliberately and it [has] certainly not done
so in a way which is tactical or knowing.” A fair trial
was still “eminently possible”: indeed it seems tolerably clear that the judge thought that the trial would
have been unfair (to D2) had he not granted the application.
MR SAMEER SINGH
CONSULTANT ORTHOPAEDIC SURGEON
MBBS, BSc, FRCS (Trauma and Orthopaedics)
Specialist interests
All aspects of Trauma (soft tissue and bone injuries), Upper Limb Disorders,
Whiplash Injuries. Medical Reporting - Personal injury, Medical Negligence,
Work related disorders and Repetitive Strain Expert.
Mr Singh delivers reports for both claimant and defendant solicitors producing
fair unbiased reports to assist the courts. Mr Singh provides legal training to
assist solicitors in trauma and orthopaedic related matters.
Mr Singh is an expert in personal injury and medical negligence and performs over 200
reports per year. Mr Singh is committee member of the British Orthopaedic Association
Medico Legal committee. Mr Singh is Bond Solon trained and MedCo registered and has
undertaken training for medical negligence and court room experience.
Mr Singh undertakes regular CPD to ensure his clinical and legal
practice is up to date.
Clinic locations in London, Milton Keynes and Bedford:
London
10 Harley Street, Marylebone, London, W1G 9QY
(e) stage of proceedings
It is rare for factor (e) and the timing of the application
to be of much significance unless a trial fixture will be
lost, and the judge considered that, with effort from
the parties, a trial date four months later could be kept
even if the admissions were to be withdrawn.
The Manor Hospital
Church End, Biddenham, Bedford, MK40 4AW
Bridges Clinic
Bridge House, Bedford Hospital NHS Trust, South Wing, Bedford, MK42 9DJ
The Saxon Clinic
Chadwick Drive, Saxon Street, Milton Keynes, Buckinghamshire, MK6 5LR
Tel: 01908 305127 Mobile: 07968 013 803
Email: orthopaedicexpert@gmail.com
Website: www.orthopaedicexpertwitness.net
(f) prospects of success
In considering factor (f) it is now well established that
EXPERT WITNESS JOURNAL
21
APRIL 2025
