At 2am on 26 January 2006 Jonathan Boyle was at a bus stop on Grove Road in East London with a friend. They had been out that evening and had been drinking. At the same time a police car was being driven south along the road on the way to deal with a pub fight, although not being driven with lights or siren or in any sort of hurry. The driver was travelling at about 33 miles per hour. As the driver approached the bus stop the Claimant suddenly fell from the pavement into the path of the vehicle. The vehicle collided with him and he suffered life changing spinal injuries. The Claimant brought a claim against the police: Boyle v Commissioner of Police of the Metropolis  EWHC 395 (QB). At trial in February 2013 Turner J rejected the Claimant's primary case that an incident was occurring at the bus stop, at or around the time of the accident, that should have put the driver on notice that someone might suddenly enter the road, causing him to react in a way that would have enabled him to avoid the accident. Turner J did find the driver to be in breach of duty for travelling at 33mph and concluded that he should have been travelling at around 5 miles per hour more slowly. The claim was dismissed however because the Claimant had no medical evidence to suggest that his injuries would have been less had the driver been travelling at an appropriate speed.
The Claimant served a report on causation from a spinal surgeon on the Friday before the trial was listed to start on the following Monday. He made an application on the morning of trial to rely on that evidence and, if necessary, to adjourn the question of causation to be dealt with at the quantum hearing, with the trial to address only the issue of breach of duty. Turner J refused the application on the grounds that it had been made too late and that the report did not assist him in determining the issue in any event. The Defendant's solicitors had repeatedly drawn the attention of the Claimant's solicitors to the fact that they had adduced no evidence on this issue and no explanation was given to Turner J about how the report had come to be served so late.
The Claimant appealed and the Court of Appeal dismissed the appeal on Tuesday. The decision is of some wider interest because the Court placed weight on the wider prejudice caused by such late applications not only to the Defendant but to the system of justice as a whole and to waiting litigants. Although Turner J's decision was made before 1 April 2013, the new climate in litigation of adherence to rules was taken into account.
Longmore and Black LLJ concluded that although the judge had a discretion to admit the report even though it was served late, he had considered the relevant rules in CPR Pt 35 and the factors enumerated in rule 3.9 so far as relevant. It was impossible to say that the judge had gone wrong in his analysis. No explanation had been given for the delay and the Defendant had invited the Claimant's solicitors to serve the relevant evidence. The judge had not erred in conflating the issue of whether the report should be allowed in and whether it was adequate for its intended purpose. The judge was correct that there was no point in serving the report if it did not assist. The report appeared to do no more than state the obvious, namely that if the speed at impact had been less the Claimant would probably have been less seriously injured. The expert's evidence might have been useful if he had given oral evidence or there had been a meeting of experts, but neither course would have been consistent with the permitted way of deploying expert evidence which required the sequential disclosure of reports. The Court of Appeal concluded that adjourning until after the court had made a finding as to the speed at which the driver had been travelling might have been sensible at some earlier stage but was contrary to an earlier master's order providing for a split trial and would have left the court to decide the issues of breach of duty and safe speed in a vacuum. It was not right to contemplate such an outcome so late in the day. There had been a prolonged and persistent failure to serve the evidence. The judge's decision was properly arrived at and he was entitled to find that the Claimant's case had to fail.
Edward Bishop QC and Laura Johnson successfully represented the Commissioner of Police of the Metropolis both at first instance and on appeal