The exclusion of expert evidence as inadmissible duplicative hearsay evidence - Nancy Kelehar, Temple Garden Chambers

30/10/23. Crypto Open Patent Alliance v Wright [2023] EWHC 2408 (Ch), Date of Judgment: 03/10/2023. This case is one of several strands of litigation that relate to Dr Craig Wright’s claim to be the creator of the Bitcoin system. This High Court judgment has been given following a Case Management Conference in which there were five applications before the court. Of wider importance in terms of civil procedure is Mr Justice Mellor’s decision in relation to Dr Wright’s application to exclude hearsay evidence sought to be adduced by the Crypto Open Patent Alliance (COPA).

A previous order in these proceedings granted permission to adduce expert evidence – limited to one expert per party – in the field of forensic documents analysis. COPA subsequently served hearsay notices under the Civil Evidence Act 1995 (CEA) in respect of 7 further expert reports, two of which were particularly dense documents running to several hundred pages with various detailed appendices.

In opposition, Dr Wright submitted that COPA was effectively seeking to rely at trial on expert evidence of three experts in the same discipline. It was conceded by COPA that the primary relevance of the further reports was their alignment and corroboration of the conclusions of their...

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A Limitation Conundrum without a Precedent: Shaw v Maguire [2023] EWHC 2155 (KB) - Amy Lanham Coles, Temple Garden Chambers

30/09/23. The case arose out of a deeply unhappy set of circumstances, as well as an unhappy procedural history. The Claimant was the widow of a man who had died of metastatic melanoma in 2014. It was alleged he had died as a consequence of clinical negligence, as he had been seen in 2007 by a Consultant Pathologist (the Defendant) who had wrongly concluded - despite samples confirming otherwise - that his complaint was benign. This had come to light in November 2009, when the malignant melanoma returned. However, his condition had been treated immediately at that stage. Unfortunately and notwithstanding, the Deceased deteriorated dramatically in later years and became aware in June 2013 that his condition was terminal. He died on 9 January 2014. The Claimant then instructed legal professionals in November 2014 who failed to pursue her fatal accident claim, such that she pursued a professional negligence claim against her former solicitors. The result of this was an agreement that the Claimant’s former solicitors would indemnify her for pursuing an out of time fatal accident claim against the Defendant. Proceedings were therefore issued against the Defendant on 10 August 2022.

The issues to be determined (by reference to ss. 11, 12, 14 & 33 Limitation Act 1980) were:

• when the limitation period had expired;
• whether the court ought to (or indeed was able to) exercise its discretion under s. 33 Limitation Act 1980 so that the case was not time barred.

The Defendant’s primary position was that the relevant date of knowledge was November 2009 and therefore the Deceased’s cause of action had already expired at the time of his death in 2014 and therefore the Claimant could not pursue a fatal accident claim at all in line with s. 12(1) Limitation Act 1980. Further, the Defendant argued that there was no scope for the exercise of discretion under s. 33 Limitation Act 1980 in those circumstances as this was expressly prohibited by s. 12(1). The Claimant argued that her date of knowledge was either the date of death or afterwards, and therefore the limitation period expired at the earliest on 9 January 2017 (three years after the Deceased’s death). She contested the Defendant’s approach to the application of s. 33 Limitation Act 1980.

On the facts, Master Cook (“the judge”) concluded that the date of knowledge for both husband and wife could be taken as identical, because of their very close relationship (para 35). Further he determined that they had not considered the injury significant until they were told he was terminally ill and therefore he did in fact have vested in him a personal injury claim at the time of his death so the limitation period expired on 9 January 2017 (paras 52 & 53).

In light of the above findings, the judge’s conclusions on the interaction between s. 12(1) and s. 33 Limitation Act 1980 were obiter but nonetheless of note. The judge concluded the passage in Kemp & Kemp relied upon by the Defendant was misleading (para 51). There was not an absolute bar to the application of s. 33 in circumstances where an injured person with capacity dies three years or more after the accident or date of knowledge without commencing proceedings (paras 48 & 51). The judge agreed with the Claimant and ostensibly the commentary in Clerk & Lindsell (quoted at para 46). Essentially, s. 12(1) dictates that when considering if a Deceased person had a personal injury action vested in them at the time of their death one should disregard any hypothetical reliance on s. 33 they may have pursued. However, this does not prohibit claimants under related fatal accident claims seeking to rely on s. 33 and indeed that may be their only option (para 48).

The judge exercised his discretion under s. 33 by reference to the guidance given at para 42 of Carroll v Chief Constable of Greater Manchester [2017] EWCA Civ 199 (para 54). On these facts, he noted that the Claimant had instructed solicitors, but through no fault of her own the claim had become time barred (paras 56-60). He found her delay in instructing a solicitor from June 2013 until November 2014 entirely understandable, given these were her husband’s final months (para 74). He noted that delay could negatively impact the cogency of evidence but that in clinical negligence claims, where much turned on contemporaneous records and samples, liability would be primarily assessed by reliance on expert evidence, not the testimony of the Defendant (paras 63 & 77). Equally, the Claimant’s evidence would speak primarily to quantum and would also be heavily reliant on documentary evidence (para 64). He considered that whilst it was relevant that the Claimant may have a remedy against her former solicitors, this remedy was itself far from guaranteed and would necessarily be less favourable to the Claimant as it constituted a loss of a chance claim (para 73). He considered that the Claimant would have no adequate alternative remedy if he refused to disapply the limitation period (para 75). He noted that the Defendant had previously been informed that the case against her would not proceed but found that whilst this was relevant and significant, it was only one factor to consider. Accordingly and having undertaken a balancing exercise of all the relevant circumstances, the judge concluded it was equitable to disapply the statutory time bar.

The case is a welcome comment on the interaction between s. 12(1) and s. 33 Limitation Act 1980 where there is a lack of judicial precedent.

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Silence did not amount to a failure to engage in ADR and Part 36 applied - Nancy Kelehar, Temple Garden Chambers

27/09/23. In this case, a separate judgment on costs was given by Master Marsh (sitting in retirement) following written submissions by the Claimant and the Third Defendant. The underlying action was a probate claim and the judgment on costs addressed three issues: (1) whether a letter marked ‘without prejudice’ was in fact sent on a without prejudice basis; (2) whether Part 36 consequences applied in probate claims; and (3) whether the Claimant had failed to engage in ADR such that it would be unjust to apply the consequences under CPR 36.17(4).

Decision 

In addressing the first issue, Master Marsh determined that despite the Claimant’s letter being marked ‘without prejudice’ it was in fact sent on an open basis and it was right for the court to have regard to it [15]. The Master considered the manner in which the letter was drafted, how a reasonably minded recipient would regard the letter, the chain of communications of which it formed part, and the fact that the letter did not contain an offer.

In relation to the second issue, the court considered whether the fact that CPR 36.14(1) provides that if a Part 36 offer is accepted then the claim will be stayed meant that Part 36 could not apply to probate claims which could not simply be stayed as this would leave an estate in limbo [23]. The Third Defendant submitted that the court should have no regard to the Part 36 offer as it was of no effect in probate proceedings. The Master observed that although probate claims “are not entirely on all fours with mainstream litigation”, he could not see any basis for concluding that Part 36 does not apply to probate claims [23]. Importantly, while there may be different steps that need to be taken in probate claims and Part 36 “primarily functions in money claims”, it is capable of operating in other claims and did in fact operate here [23(2)].

Finally, the Third Defendant sought to rely upon the letter (referred to above) and other correspondence to show that the Claimant failed to engage in ADR which thereby warranted a reduction to the costs recovered and factored into the consideration of whether it would be unjust to apply Part 36 consequences. However, the Master determined that while the Claimant’s “failure to engage more positively with ADR…without providing any explanation was surprising” [26], on the facts of this case it could not be said that silence amounted to refusal to undertake mediation or other form of ADR [27]. 

Comment

In concluding that the Claimant’s conduct was not such as to warrant any costs deduction, the Master took into consideration the fact that the Claimant had made a number of offers to settle, the Third Defendant’s conduct of the claim was very unsatisfactory, it was the Claimant who first raised the question of ADR, and the merits of the claim were weighted heavily in favour of the Claimant [25]. Therefore, although the Claimant had not responded when asked in writing about its unwillingness to attend mediation, the court may make the determination on this issue by looking at both of the parties’ conduct more broadly.

Additionally, it should be noted that paragraph 23 of the judgment provides useful guidance as to how Part 36 and Part 57 should be read together and applied in relation to probate claims.

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