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High Court denies relief from sanctions - Louise Jackson, Browne Jacobson

20/06/20. In the recent case of Magee v Willmott the Defendant successfully appealed a lower court decision to allow the Claimant relief from sanctions to rely upon expert evidence served after the deadline had passed for exchange and not to strike out part of the Claimant’s case which was unsupported by the Claimant’s breach expert and where no case on causation had been pleaded.

The facts

The Claim was initially brought against three Defendants for the alleged delay in diagnosing bowel cancer. The Claim was discontinued against the First Defendant and the Second Defendant. The Second Defendant obtained an Order for wasted costs on the basis that the Claimant had brought the Claim against the Trust without the relevant expert evidence.

The allegations against the remaining Defendant (Appellant) spanned three consultations; two in August 2012 and one in April 2013. Expert evidence was exchanged in July 2019 and upon review, the Appellant noted that the Respondent’s evidence did not appear to support many of the pleaded allegations of breach of duty and that no oncology causation evidence had been served. The Respondent’s solicitor advised that he had made an error and not all of the evidence in his possession had been served and made a late Application seeking permission to rely upon further expert evidence, all of which post-dated the date of exchange of expert evidence. The Appellant issued a cross Application to strike the Claim out making it clear to the Court that the Respondent’s Solicitor’s explanation in respect of the error regarding expert evidence was not accepted. The Trial date was lost as a result of the Claimant’s Application.

The lower Court granted the Application made on behalf of the Claimant (Respondent), which was accepted to be a relief from sanctions Application, despite it being accepted that the breach was serious and there was no good reason for it. The Recorder dismissed the cross Application to strike out the Claim despite the Claimant’s (Respondent’s) advocate accepting that they could not succeed on the April 2013 consultation irrespective of whether permission to rely upon the ‘new’ evidence was allowed as the breach expert did not support the allegations...

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