Expert Evidence: A Peek Behind The Curtain?

A defendant who fails to provide court with demonstrable expert evidence in support of a causation defence being maintained in a clinical negligence claim, and in the context of an application for an interim payment made by a claimant runs a real risk of an interim payment award being made. That was the net result of the decision in Claire Sellar-Howling v Dr. Sarah Howling [2016] EWHC 443 (QB) decided at first instance by Master Cook in the Queen's Bench Division and upheld on appeal by Mr. Justice Sweeney.

The underlying claim centres on a failure to correctly diagnose a malignant tumour located on the left lobe of the claimant's liver.

The Defendant had made admissions on breach of duty. However, the pertinent issue, for purposes of the Claimant's application for an interim payment, was the causation defence maintained within the Defence. That centred on the Claimant's case that the mass had become malignant during the period of delay, where it had previously been benign. The Defendant's causation position was that the tumour had always been malignant and, as a result, that the Claimant's treatment and pathway would have been almost identical.

The Claimant, in advance of the application for an interim payment (which was heard in October 2015), had unilaterally served her liability expert evidence, particularly from Professor Middleton, expert oncologist.

The Directions set previously by the Court provided for the exchange of liability experts evidence in December 2015 i.e. some weeks after the hearing of the Claimant's application for an interim payment. Pursuant to the causation defence pleaded within the Defence, the Defendant intended to serve supportive liability expert evidence by December 2015 i.e. in accordance with the Directions set by the Court.

The First Instance Decision

At First Instance, Master Cook awarded an interim payment of £100,000.

That decision was seemingly based on the absence of any compelling evidence from the Defendant before the Court to rebut the application and the evidence of Professor Middleton which Master Cook found to be 'formidable'.

Master Cook having referred to the decision of Popplewell J in Smith -v- Bailey [2014] EWHC 2569 (QB) noted that on an interim payment application, there was an evidential burden on the defendant to put before the Court material raising the issue of contributory negligence and that the task of the Court was to apply the relevant legal test to the evidence before him.

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