Matharoo v Medayway NHS Foundation Trust (2013)
Judge Swift’s pragmatic case management decision in the case of Matharoo v Medayway NHS Foundation Trust (2013) was reported on Lawtel yesterday. The decision is an illustration of the overriding objective being applied so as to progress the claim whilst, so far as possible, achieving an equal footing between the parties.
The applicant trust (D) applied to vacate a trial date for the hearing of a clinical negligence claim brought against it by the respondent patient (C). The trial concerned negligent performance of a surgical performed on M after she had had a miscarriage. Internal damage caused to her uterus and small bowel had resulted in unpleasant physical and psychological symptoms. Negligence was admitted by Defendant.
D intended to have C examined by its expert after it received C's expert evidence. In November 2012 D began to make arrangements for C to be examined in December 2012. C was unable to attend on the dates suggested by D and instead arranged with the experts' secretaries to attend in January, which she did. The trial date was fixed for February 2013.
D submitted that due to M's unreasonable behaviour in not making herself available for examination in December, it could not properly prepare the case for trial on time and would be prejudiced if required to do so.
Judge Swift held and directed as follows:
· The fact that C did not attend an expert assessment in December did not mean that she was acting unreasonably. C had psychological symptoms and for understandable reasons wanted her husband to attend with her. She and her husband were both in employment and had two young children for whom childcare arrangements were required to be made in time for any appointments. It was therefore understandable that attending the assessments in December might have been difficult for C.
· C had clearly not sought to avoid the assessment as she had readily agreed to the January appointments and attended them. Although the delay was unfortunate, it was not attributable to any unreasonable behaviour by C.
· It was plainly in the interests of C, the court and the general administration of justice that the trial date was maintained.
· Regard also had to be had to any prejudice that D might experience if the trial date was maintained.
· Provided that D made a Part 36 offer one-week prior to the trial date, it would take effect as though it was made 21 days prior to trial.
Whilst pragmatic, it should be noted that this direction minimises, as opposed to eradicates, the prejudice to D. This places some pressure on the Defendant to quantify their case quickly and may also deprive them of an to explore issues raised by their expert.