PI Brief Update

When is adjournment appropriate in a high value personal injury claim? - Anisa Kassamali, Temple Garden Chambers

19/01/23. Benford v East and North Hertfordshire NHS Trust [2022] EWHC 3263 (KB) considered whether a trial should be adjourned on the assertion that the assessment of future loss and expense arising from the Claimant’s injuries was either impossible or so speculative that it would be unjust to the Defendant.

Background

The Claimant suffered brain damage around the time of her birth. The Defendant ran the hospital at which she was born. Liability for clinical negligence had been admitted by the Defendant for that brain damage, and the outstanding issue was quantum.

The Defendant submitted that the expert medical evidence on key issues would be too uncertain by the trial date for the Court to be able to make a fair judgment. There was a real risk that an assessment of damages on that date may be wrong. This was opposed by the Claimant on various bases, including that (1) the submission should have been made earlier, (2) in clinical negligence and personal injury claims, quantification of future loss always rests on prognoses by various medical experts, which involve an element of experience, expertise, speculation and uncertainty, and this case was no different, and (3) the burden of proof rested with the Claimant in any event, and so any uncertainty about any prognosis fell on her shoulders and not the Defendant’s (see [18]-[22]).

High Court decision

Ritchie J considered the Court’s power to adjourn proceedings at CPR 3.1(2)(b). He also noted the Court’s power to stay proceedings at CPR 3.1(2)(f).

He considered the specific facts of the case against the following factors, which he identified as relevant:

(1) The overriding objective of achieving justice between the parties.

(2) Whether the Defendant (or Claimant) will suffer prejudice by the trial going ahead.

(3) Whether the Claimant (or Defendant) will suffer prejudice by the trial being adjourned.

(4) The balance of the prejudice which may be suffered.

(5) The need for finality in litigation.

(6) The need for justice to be done without unreasonable delay.

(7) The conduct of the parties and in particular whether the Defendant (or the Claimant) has complied with the Court’s directions.

(8) The choices made by the parties on the date for trial and any consent orders made.

(9) Reasonable and fair allocation of the Court’s resources.

(10) The wishes of the parents who carry the burden of caring for the Claimant and running the litigation and being present at each assessment by experts.

(11) The alternatives to adjournment including (1) whether a stay or an adjournment for a shorter period would be fair and (2) whether different directions between now and the listed trial date would be sufficient.

On the facts of the case, Ritchie J held that the trial date should stand (although he extended the time for serve of the Defendant’s expert reports and counter schedule). In so doing, he made various observations which have broader relevance for practitioners operating in this area.

· As to certainty in relation to expert prognoses: “[m]aking awards for damages for future loss is an exercised upon a comparison between an estimate of what the ‘but for’ position would have been and the ‘future actual’ position will be. Both of those are crystal balls through which the judge has to look with the guidance of experts. Certainty is admiral (sic) but is often not achievable. Uncertainty is ever present in such assessments. The Courts are used to assessing probabilities.” [49]

· Consent orders in the proceedings to date: “As to the choices made by the parties on the date of trial, I have set out above that the parties agreed to the trial in 2023 one year and two months ago. When parties make serious choices like this in very high value brain injury litigation it seems to me that the general rule should be that they should stick to their choices.” [54]

Image ©iStockphoto.com/sellingoutstieglitz