Wednesday, 11th May 2016
HIS HONOUR JUDGE COTTER Q.C.
B E T W E E N:
SUSAN EDITH MOORE
PLYMOUTH HOSPITALS NHS
Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269 0370
MS MICHELLE FANNERAN appeared on behalf of the Claimant
MS CAROLINE HARRISON Q.C. appeared on behalf of the Defendant
HHJ COTTER Q.C.:
This is an application for relief from sanctions. The claim is a clinical negligence action arising out of the alleged negligent medical treatment of the claimant on 19 August 2009. During the course hip replacement surgery, the claimant, then aged 54, suffered a severe injury to the left femoral nerve. The trial is listed on 6 June 2016, so some 17 working days from today; now being restricted to a three- to four day trial, quantum having been agreed in the sum of £950,000.
As for the detail of the surgery, it was intended to be minimally invasive, i.e. with a short incision, although the actual length of the incision remains in issue and otherwise a routine procedure. An anterior approach was used. During the surgery, the acetabular component had to be revised because the first socket became displaced. The surgery lasted at least two and a half hours, which was significantly longer than normal. It is not in dispute that the femoral nerve was injured during the operation. The claimant’s case was initially pleaded with allegations of negligence that can be broadly broken down into three themes. Firstly, there was a lack of consent. Secondly, that there was negligent surgical treatment, i.e. negligent surgery, and thirdly, lack of training or experience on the part of the surgeon. However, the claimant withdrew the first and third of these themes, notifying the defendant before a case management conference as long ago as November 2014 and formally withdrawing them in a reply in December 2014.
This left the sole allegation of negligent surgical technique or negligent surgery. That was pleaded at paragraph 31.1 as failing to take any or any adequate steps to protect the femoral nerve during the minimally invasive anterior approach surgery, and at 3.3, causing injury to the nerve whether by (i), a direct injury as a result of one or more instruments making contact with the nerve, (ii), using excessive force when retracting tissues with a view to providing exposure, and (iii), retracting tissues for an excessive period of time without taking any adequate steps to reduce or eliminate the consequences of the prolonged retraction. At 31.4, it is said there was a failure to take any or adequate care when applying the retractors to ensure that the femoral nerve was protected.
Within the allegation of negligent surgical technique, there were two subthemes; failure to protect the nerve and negligent use of the retractors. It was and is a specific allegation within the pleaded case that the retractors were used for an excessive period of time without any steps being taken to eliminate the consequential tension upon the nerve. As I have set out, the claimant restricted the case prior to the case management hearing on 29 November 2014. For that case management hearing, there was an agreed case summary. The agreed case summary set out that it was the claimant’s case:
‘Limited to the allegation that the surgery itself was carried out negligently and that the injury was caused by the incorrect retractor placement, excessive retractor force being applied to the tissue around the incision, which includes femoral nerve, or by retractors being applied for excessive periods of time, especially when it became clear interoperatively that the acetabular component required revision leading to the operation so considerably longer than would have been usual’.
An outline of the defendant’s case is also set out in that agreed summary. It was set out that the defendant’s case was that minimally invasive surgery such as this ensured that the femoral nerve is protected insofar as is reasonably possible, that the nerve injury is a well recognised complication, that the surgery lasted, it was admitted three and a half hours, longer than to be expected but that was as a result of a need to reinsert a larger femoral component. For the sake of completeness, I should add the defence had not addressed the specific allegation of the retractor being applied for an excessive period of time. As regards paragraphs 31.3 and 31.4 in the particulars of claim, it was stated within the defence that:
‘The claimant is required to prove the precise manner in which the femoral nerve was severed but in any event, nerve injury is a well-recognised complication in hip replacements. The claimant was adequately informed of this and duly consented to the procedure. The procedure was performed with reasonable care and skill. As a matter of law, then it is not liable in circumstances where a recognised complication for surgery materialises in these circumstances’.
So as long ago as 2014, the pleadings and the summary underlined the issue of the duration of retractor use as a central to the Claimant’s case as to breach of duty.
It is not necessary for me to deal with the chronology of this matter in great detail but I should also add the following dates. On 26 March 2015, District Judge Griggs made an order, inter alia, that lay witness evidence be served by 10 April 2015. The order specifically recites that oral evidence will not be permitted at trial from a witness whose statements have not been served in accordance with the order. In terms of the exchange of expert evidence, District Judge Griggs set a date but the period before exchange was subsequently extended by District Judge Field and then District Judge Leech.
Eventually, on 26 June 2015, factual statements were exchanged, so at the time of the signing of his witness statement dated 25 June, Mr Fekry had access not only to the pleadings but also to a report from an expert retained on behalf of the defendant, Mr Atkins. At Sections 6.1(4) and 6.1(5) of the report, Mr Atkins had referred to retraction as the usual cause of nerve damage.
The statement is one of some length. It sets out at paragraph eight that he had available to him and he used special instruments designed for a minimally invasive anterior approach and a 10cm incision was made. It deals with the detail of his procedure in terms of what he did and relevant sizes and measurements.
At no stage was any reference made to retractor use or to releasing the pressure caused by retraction during the course of this prolonged operation. He said that the surgery took longer than expected and the average surgery time was usually 90 minutes, but did not set out exactly how long it was. That he had in mind the pleaded case cannot be in doubt because at paragraph 17, towards the end of the witness statement, he says:
‘I understand that the claimant is alleging that the injuries to the femoral’ and he missed the word ‘nerve’ out, ‘occurred as a result of a direct injury to the nerve through using excessive force when retracting tissue with a view to providing exposure and/or from retracting the tissues for an excessive period of time without taking adequate steps to reduce or eliminate the consequences of prolonged retraction. Minimally invasive surgery is carried out between the muscles and does not involve splitting or detaching muscles from the usual anatomical positions. The technique is to be used within the [inaudible], the latter muscle which [by its nature protects the?] femoral nerve but other[?] excessive retraction was not used at any stage during this procedure’.
It is somewhat strange, to say the least, that there was no specific mention of the use of retractors in the statement
I should point out that the 10cm incision referred to is longer than the usual for minimal surgery. Both experts have measured the scar at 9cm, consistent with minimally invasive surgery but shorter than Mr Fekry states it was. In any event Mr Thackery clearly sets out in the first witness statement that the incision was long enough for the process.
In due course, on 2 October 2015, liability reports were exchanged. Mr Brindle, the expert on behalf of the claimant, refers to the likelihood of injury being caused by retraction. He specifically sets out at paragraph 10 of his report that, given that retraction is an important cause of nerve injury, it would be reasonable to suggest this prolonged surgical time will have increased the risk of nerve injury. The surgeon should certainly be aware of this. He will certainly consider extending the length of the wound and making sure that the retractors were relaxed when he was not directly working on the acetabular. It would be reasonable to suggest that, if such steps had been taken, on the balance of probability, the nerve injury would have been avoided. He also set out that he would expect during the course of a 90-minute hip operation that 15 minutes would be taken with surgical exposure, 30 minutes working on the joint with the retraction, 30 minutes on the femur, and 15 minutes closing the wound. He made the suggestion that, in this particular case, given the difficulties encountered, it would be reasonable to suggest that the majority of the extra time was spent working on the acetabulum.
On 2 October 2015, the claimant also served a schedule seeking an increased value of £1.35m. So the defendant has the report of Mr Bridle and the increased schedule on 2 October 2015. However the report of Mr Brindle was only sent to Mr Fekry in December. There is no explanation for this delay.
On 1 February, Mr Fekry supplied the defendant with some further information in response to sight of the report. A letter is annexed to the witness statement of Ms Hemming, revealing that the letter that was received on 1 February. Within that letter, Mr Fekry states, this is of Mr Bridle’s report
‘He also suggested that an excessive retraction was used, which is not the case. The retraction is always released whenever I was not actively working on the acetabulum. This is always practiced as part of basic surgical technique and it was practiced during the case’.
He continued later on:
‘The extended operation time has no bearing on the causation of nerve injury in this case. The exposure of the acetabulum took place up to [inaudible] slight pressure on a nerve which is inevitable would not have been sustained all the period of exposure. The same precautions during retractor placement, gentle retraction and releasing retraction intermittently would have been applied’.
It is now known that a conference with Ms Harrison, leading counsel, took place on 12 February 2016. It is said in the defendant’s application to have been at the earliest opportunity but there is no explanation as to why this was so, bearing in mind, as I have said, that the schedule and the expert’s report were served on 2 October 2015.
Following the conference on 12 February 2016, despite full knowledge of Mr Fekry’s explanation and response, and appreciation that the matters he was setting out were neither pleaded nor in his witness statement, no mention was made to the claimant that some new evidence might be forthcoming. Indeed, the claimant continued in blissful ignorance of any change in the Defendant’s case and the case seemed to be progressing in the ordinary way.
In March, there was an application for each party to amend the costs budget to cater for leading counsel. On 4 March, the defendant’s listing questionnaire was filed. The claimant’s questionnaire came slightly later. There were then discussions between leading counsel as to the agenda for the experts. For reasons that I will return to, the defendant continued throughout to fail to alert the claimant of the position as regards Mr Fekry’s evidence.
With the date for experts to produce a joint report of 2nd May almost upon the Defendant, on 28th April the application now before me was made for relief from sanctions. I should add that today’s hearing, 11th May, was already listed but it has been extended to cater for the application.
By the application for relief from sanctions the Defendant seeks to rely upon the supplemental statements of Mr Fekry dated 25 April. The application also seeks extended time for the orthopaedic surgeons to meet, up to 20 May or just over two weeks before the trial, giving the parties only a week and a half to digest the content.
As for the evidence on the application before me, there is evidence on the statement itself from Ms Fanneran. There is a statement in response from Mr Tassart on behalf of the claimant, much of it setting out argument. Yesterday, a statement from Ms Hemming, was served on behalf of the Defendant.
It is necessary to consider briefly the content of Mr Fekry’s witness statement. Its states out as follows.
‘Having read Mr Brindle’s report, I can see he has taken the lack of reference of steps to protect the femoral nerve in my previous statement and my operation notes as meaning I did not take any steps to protect the femoral nerve. This is not correct. I thought it would help the court to set out what my standard practice is to protect the nerve. I can confirm that I am always extremely careful when placing the anterior retractor over the front of the acetabulum as this is such an important part of surgical technique but I always release the retractor whenever I am not actively working upon the acetabulum. This is something I always practice as part of my basic surgical technique and this is what I did during the claimant’s surgery. These are such basic surgical steps I always undertake I did not consider it necessary to mention in my previous statement, as I assumed it would be understood that they were done’.
He then refers to the surgical incision. He did not return to its length but states that he had a clear view of the acetabulum and did not agree that it required to be extended. He then says he would like to take the opportunity to point out the length of the procedure was actually two and a half hours, and not three and a half as suggested by Mr Brindle. I pause to observe, he does not point out or in any way deal with the fact that it is admitted in the defence that the operation took three and a half hours. He continues in relation to retraction setting out that:
‘The acetabulum was exposed twice during the procedure …….. anterior retraction was required to facilitate the exposure of the acetabulum but I did not sustain this for the entire period of exposure. I applied the precautions I have set out before regarding retractor placement having gentle retraction and releasing retraction intermittently’.
He finally says that anterior retraction would have been brief because he always relaxes the retractor when not working directly on the acetabulum, and furthermore, anterior retraction is not necessary or possible for the majority of the time.
So Mr Fekry advances for the first time a detailed response on the central allegation; retractor use.
On the application, Ms Fanneran sets out the history that sets out that the second witness statement of Mr Fekry is needed for three reasons. Noting it explains more fully the surgical technique, particularly his use of retractors, Ms Fanneran states:
‘As would be ordinarily expected in cases of this sort, in consultation, Mr Fekry was able to explain and describe more fully his surgical technique. He was also able to respond to the new issue raised in Mr Bridle’s report, namely that the incision should have been extended to improve exposure’.
She states that Mr Fekry says that the reason he did not explain his technique on intermittent application of retractors and their release when he was not actively working on the acetabulum previously was because it was such a basic technique is that he took it for granted that it would be understood by any other surgeon.
It is also said that a statement is needed to deal with the length of incision and the length of the operation and, further, that these matters would inevitably come out in oral examination in any event.
In response Mr Tassart in his statement points out that a statement is not needed to address the incision length because it is dealt with in the first witness statement and he points out that according to the experts, Mr Fekry is wrong in his evidence in any event. Be that as it may, it is a matter that is expressly covered in his first witness statement and can doubtless be explored at trial.
He also points out that the operation notes did not need to be adduced by Mr Fekry and that he did not create the record in any event. It is of some significance that the defence specifically agreed that the operation took 3.5 hours and the statement, strictly speaking would require an amendment to the defence. However, in his report, Mr Atkins had already seen this record and set out in his opinion that the operation was two and a half hours long. So the record is already in evidence.
The reality, as is quite clear from the submissions before me, is that the heart of the application is the attempt at this late stage to introduce evidence as to the use of retractors and specifically of release during the course of the operation.
Mr Tassart says that this adds a new and fundamentally important dimension to the case. It seems to me, taking matters in the round that he is right. Mr Tassart also sets out that, if allowed in, the statement would have a number of repercussions. It would have to be considered by the legal advisors, there may well need to be a further report from Mr Brindle, who will have to consider these new matters, there should be amended defence and potentially a reply, that there would have to be a revision to the agenda for the joint meeting, and the claimant and the ATE insurer must be advised of the developments. He then says that the parties would need to take stock and consider matters and advise and prepare for trial. It is the Claimant’s submission that at this late stage just before the trial date this application effectively amounts to an ambush.
The statement of Ms Henning served only yesterday, and I pause to observe unaccompanied by a bundle, sets out that Mr Fekry’s evidence was prepared “collaboratively”, a somewhat odd phrase. Indeed, it would add some fuel to Mr Tassart’s assertion that the omission in the first statement should have been picked up by the solicitor were it not for the later comment in Ms Hemming’s statement that Mr Fekry had been asked to provide the level of detail, i.e. the sort of level of detail that would give rise to comments upon the use of retractors. Reading Ms Hemming’s statement, it seems that Mr Fekry was asked to set out all the details of the procedure, the steps taken, and he simply did not do so. Why this is not followed up when he produced the first statement, if it was not followed up, remains a mystery. At no stage is it set out in any of the evidence before me why Mr Fekry was not challenged about this as it would appear to be an obvious omission, unless, of course, it were believed that he had not in fact released the retractors during the course of the operation.
I turn to my analysis of the merits of the application. Initially, it is said to be under CPR 32.10 or 3.9 but there was an express order and it therefore properly an application under 3.9. No exegesis of the relevant law is required for me for what is now commonly known as a Denton application. In short the court must deal with an application such as this justly and post the judgment of the Master of the Rolls in Denton & Ors v TH White Ltd & Ors  EWCA Civ 906, the court has to consider a three-stage test. I shall turn now to those stages.
Stage one is the question of whether or not there is a significant breach. It is conceded that there is.
The second stage is whether there was a good explanation for the failure to serve the statement in time. In the application, the defendant says that there was and relies upon the reasons set out for the need for the further statement. However this argument is simply not sustainable. As I have indicated, it seems to me that the reality is that this is not an attempt to deal with three matters referred to, rather is an attempt, plain and simple, to introduce new evidence on a central issue. The issue of the length of the incision was already set out in the first witness statement. There may well be a problem if Mr Fekry is wrong in what he says ; however his evidence as to the length of the incision and what he was able to do with it is properly set out in that first witness statement. As to the length of the operation, this was admitted in defence but Mr Atkins has already relied upon the relevant note, which was not compiled by Mr Fekry.
So the real issue to be addressed is the use of retractors.
It is, in my judgement, quite remarkable, given the allegations in the particulars of claim that Mr Fekry did not set anything out about the use of retractors in the first witness statement and specifically release or retractors, given what is set out in the second witness statement.
Three further points are made in the application about the content of the further witness statement.
First, it is said that these matters would have come out in oral examination as Mr Fekry’s surgical practice is the key issue in the case, and it was inevitable that it would have been explored in detail at trial. The first and obvious observation is that this ignores the proper purpose of a witness statement a fortiori in a case such as this where the claimant can have no direct knowledge of what occurred in the absence of it being set out in disclosed documents, specifically the operative records, the defence, which I pause to observe is fully pleaded, or the witness statements. As I said, there is a curious comment in Ms Hemming’s witness statement at paragraph 10 but it seems clear that Mr Fekry was asked to descend into detail but simply did not do so.
The next point made is that the claimant’s objection is perverse because the use of the retractors has ‘emerged’ as the principal issue. However this ignores the fact that it has always been a central allegation in the claimant’s case. It may be that the other allegations have fallen away, but that does not mean that this allegation has suddenly itself gained the importance it otherwise did not have.
Thirdly, there is the explanation put forward that Mr Fekry simply took it for granted that no surgeon would contemplate leaving retractors in place throughout. Mr Fekry was a surgeon being criticised for his use of the tool in question and there was a specific allegation that he had used it for too long. He was professionally advised by solicitors who are nationally renowned in the field of clinical negligence. I have very considerable difficulty in accepting his explanation and indeed have no additional or further explanation as to why the omission was not picked up and he was not asked to further comment.
I should add that Mr Fekry does not in his witness statement rely on ill health, a matter raised in Ms Hemming’s witness statement as any reason why he omitted reference to retractors. Ms Hemming refers to the ill health at paragraph eight and states that Mr Fekry is now unwell. I do not know what his medical condition is and counsel has not have been given consent to release details. I do not know how it is said it affected him, if at all, at the time of the preparation of the first relatively comprehensive witness statement or indeed the second comprehensive statement. It is not an issue raised in the application. There has just been reference to the practical implications of his residence in Egypt and his personal circumstances. It is only by the later statement of Ms Hemming that there is reference made to it. I note that he was able to attend the consultation by telephone on 16 February.
The reality is it is quite clear that the issue of the use of retractors could and should have been dealt with in the first witness statement and none of the points raised give any good reason for the failure to do so. So the Defendant does not succeed at the second stage.
That therefore leaves the third ground, and consideration of all the circumstances. In dealing with an application such as this justly, all relevant factors must be considered. Of course, such factors and the weight to be attached to them varies considerably from case to case and within the assessment process the court must keep focused on the effect of a breach and pay specific attention to the factors expressly set out in the rule. Those factors are the need for litigation to be conducted efficiently at proportionate cost, and secondly the need to ensure compliance with rules, practice directions, and orders.
So I start with considering the effects of the breach? I turn first to the impending trial date.
The loss of the trial date would be a huge blow to the claimant. Further I have no doubt as the Designated Civil Judge for the region overseeing the listing of multi-track and High Court Cases, and indeed trying them myself on this region, that there would be very considerable delay caused by re-listing it due to judicial availability amounting to several months. That is before one takes into account the almost invariable problems with the availability of experts, that so frequently makes listing clinical negligence cases so problematic. Further, Ms Harrison raises the possibility that Mr Fekry may be too ill or worse, such that he cannot attend any resumed hearing, amounting to possible prejudice to the defendant if the trial is adjourned; so it is clear that the loss of the trial date would potentially have a devastating impact on the timely progression of this claim.
The application contains the assertion, and indeed it was Ms Harrison’s submission, that the trial date can still be met. It is now 11 May and the trial commences on 6 June. It is not as much as four weeks away, as Ms Hemming rather misleadingly states in the witness statement because that would take it to the third day of the trial. More accurately, as I said at the outset of this judgment, there are only 17 working days before the start of the trial. The orthopaedic experts are yet to speak and prepare a joint statement. It is a tight enough timescale without any significant developments. The application states that the trial date can be kept as the witness statement does not seek to bring in new facts or issues but simply clarifies the evidence already provided and responds to the new suggestion as regards the length of the incision. In my view that submission is simply untenable.
In my experience, the effect of a trial date is always a highly material factor in applications such as this and the decision of Chartwell Estate Agents v Fergies Properties (1) and Hyam Lehrer (2)  EWCA Civ 506began the first signs of a softening of the post Mitchell v News Group Newspapers Ltd  EWCA Civ 1537hard line adopted by so many courts .The factor that the trial date could be kept was seen as very important by Globe J, the judge at first instance in that case. Indeed post Denton, the issue of the trial date is often at the heart of the factors at the third stage of consideration, particularly if the application is made later in the life of the action and as the trial date approaches.
When challenged Ms Harrison expanded upon the reasons why she submits the trial date can be met and in my judgment, it is necessary to consider and explore what is really meant by the defendant’s assertion that the trial date can be kept. In my judgment it is not as simple, as just answering a binary question. My practical experience in the field of personal injury and clinical negligence over 30 years supports the claimant’s submission based on Mr Tassart’s witness statement that it would require the claimant and her legal advisors to take a number of important steps in a very short period of time.
Firstly, they would have to consider the new statement and the extent to which it can be challenged or clarification sought specifically in relation to the specific periods in which retraction was released. Mr Fekry still does not give particular or specific detail, simply referring to intermittent release. The alleged extent /times could be very important Ms Fanneran says that this would have inevitably led to a Part 18 request if the witness statement had been served as it should have been a year ago with this detail in but very careful consideration would now have to be given in the short time available as to whether it was possible or necessary to seek to get further information clarification. I pause to observe that she stated that if it had been served on time, back in June 2015, without the new information being the subject to the suggestion of prompting or only being set out in response to a report, and after proper exploration and consideration including with expert input was accepted by the claimant’s side as proper, then it is even possible it would have affected the claimant’s merits. However that is not now the position and what is faced is an entirely different one. The arrival of the statement is viewed with considerable suspicion as set out by Mr Tassart in his witness statement.
So the statement raises further questions that are unanswered, specifically as to the extent to which there was release. I do not accept the submission made by Ms Harrison that allowing the statement in would still allow the claimant to proceed in the case as before. Rather I accept that there would have been detailed and proper exploration of this issue and that cannot now be easily done. In reality what would need to take place in the short time available is that conference would have to take place with leading counsel to consider what could be done with the witness statement in its current form.
Another necessary step would be that Mr Bridle should be asked to comment by way of additional report. Of course, experts’ availability to do so at short notice is always an issue, busy as such experts frequently are. The need for further comment would potentially restrict the timeframe for the joint meeting. It may be that the agenda needs to be further addressed. Mr Harrison says that it does not but Ms Fanneran says that it does; such is the nature of many prolonged discussions about agendas. In any event there would then have to be preparation of the joint statement preparation, it would have to be digested and then further instructions taken and a consultation. The availability of legal advisors may well impede the easy arrangement of a consultation given busy professional lives.
Further the Claimant’s insurer will have to be notified. The insurer may respond and there may be ongoing discussions as to the contents of that response. In light of the insurers position the claimants may need to take stock.
All the matters now need to be completed between now and 6 June, and solely because of the late stage of the defendant’s application.
In my judgement, looking at the totality of these matters, and in light of a realistic view as to the likely availability of experts and counsel and the time it takes for these steps to be properly completed, the trial date is in peril. Any problem with any specific step may mean that the Claimant cannot achieve what needs to be done. I do not put it higher than that. However, even if it is kept, it cannot be kept without putting the claimant at a significant disadvantage due to the need to complete these steps and causing real prejudice to the proper presentation of their case.
Ms Harrison focused on the effects of not allowing relief. She argued that the claimant’s stance in seeking, in effect, to gag Mr Fekry, would make the trial impossible or at least artificial and that it is a highly important factor that Mr Fekry is going to give evidence in any event. She submits that Mr Fekry’s technique as he now wishes to set out would have come out at trial as this is exactly the sort of detail that emerges at trial.
However, Ms Fanneran says in response that this was by no means a certainty. Faced with this a glaring lacuna in the evidence, would Dr Powers Q.C. , leading counsel for the claimant have cross-examined this matter in, or would, bearing in mind his very considerable experience in this field, he have left very well alone? It seems to me there is a very strong likelihood that he would have done exactly that. So I favour Ms Fanneran’s response to this point; that this is by no means a matter that would certainly have come out during Mr Fekry’s oral evidence.
I make three further points. I do not agree as a generality that this is a sort of mere extra detail that often emerges at trial. This is a central allegation of breach of duty, properly pleaded and simply not addressed in the defence or the witness statement. There is a clear and obvious tension between Mr Harrison’s submission on the one hand this is the sort of detail that just emerges, almost as extra colour in the picture, and on the other hand her argument that Mr Fekry is being gagged from dealing with what is described in her skeleton argument as the key allegation. In my view this is a key allegation not extra detail.
The second point is in relation to Ms Harrison’s submission that the new evidence can be challenged in the usual way. In my judgment this ignores the significant difference between what would otherwise be afforded by a year to prepare, with the benefit of clarification of the content and expert consideration as opposed to assessing it potentially with no clarification and in a rush.
The third point relates to Ms Harrison’s submission that everyone would simply have dealt with the evidence as it emerged for the first time at trial. This seems to me to assume what needs to be established, i.e. that the trial judge would simply have allowed the matter to be advanced for the first time and expected the Claimant simply to have dealt with it with no more. For my part, I think that this would have been very unlikely, representing as it would have, an ambush of the first order. In the round, Ms Harrison’s submission on this point seems to amount this; because this evidence would have come to light during the oral testimony of Mr Fekry, in effect, trial by ambush, the application being a lesser ambush should succeed. I simply do not accept this. It may, and I can put it no higher than “may”, given limits on extra questions in chief and that it may not have been an area covered by cross-examination, have come to light during the trial, but even if it did so, the trial judge may well have refused to allow it in, particularly having regard to the fact that the matter was not pleaded.
Another point made by Ms Harrison is that Professor Atkins is inescapably fixed with knowledge of the technique set out in paragraph 11 of Ms Hemming’s witness statement. This rather misses the point that Professor Atkins is an expert whose sole duty is to assist the court within the realm of his expertise. It is not his role before the court to comment upon issues of fact. I accept that he has seen and heard matters other than matters properly in evidence before the court but, because he is not a fact-finder, it is not necessary that he has to deal with whether he accepts those matters or not when giving his expert evidence. He opines on the basis of the evidence before the court. Further, experts can, of course, deal with hypothetical positions. So I do not see that this is an insurmountable problem.
As for the fact that Mr Fekry will be giving oral evidence, I bear in mind that this is something which will undoubtedly have to be considered very carefully by all those involved in the trial process and poses some degree of difficulty. However it can and must be managed. Were the position to be otherwise, the applicant for relief from sanctions in a position such as this, and by that I mean seeking to add very significant fresh additional arguments from a witness is due to give other evidence, would always hold the trump card and relief axiomatically follow. That cannot be right.
Overall, the effects of the breach, in my judgement, would be at the very least to seriously undermine the proper preparation of a trial to the likely prejudice of the claimant. If, as it seems to me must be in some doubt, the trial date can be kept, the claimant faces having to do too much in too short a time.
I now turn to another relevant factor to be weighed into the balance; delay. Delay in the making of this application has unarguably caused avoidable impact on the progression of the claim.
As I have said, the use of retractors should have been dealt with in the first witness statement served now approaching 11 months ago. However, there has been further delay and such delay has been significant.
On 2 October 2015, liability reports were exchanged and Mr Bridle’s opinion was known to the Defendant. It is said that that provoked the instruction of leading counsel. 2 October is now over seven months ago. The report having been received, it was not sent on to Mr Fekry for at least two months. I take that from paragraph nine of Ms Hemming’s statement. There is no explanation for the delay.
I should also add that I do not accept on the limited evidence before me that 12 February 2016 was the earliest opportunity for a consultation with leading counsel. In the absence of detail, it seems to me it was clearly an excessive period, bearing in mind the approaching trial date.
In any event, and my view, most importantly, once it was appreciated there was a lacuna in the defendant’s case, and additional matters needed to be before the court an immediate application should have been made in February of this year, to rectify the position. That was nearly three months ago. I do not accept in the face of a June trial date that it takes from 12 February to 25 April to produce a further witness statement, particularly having regard to the fact that Mr Fekry had already set out the relevant details in a letter. I say this bearing in mind that Mr Fekry is now resident in Egypt. I simply do not understand in this context what is meant by the ‘inevitable time taken by lawyers’ being the significant factor in this. Given the urgency it was simply not properly addressed. Mr Fekry’s ill health has been mentioned as a factor but with no real detail and, significantly, it is not a matter raised by Mr Fekry himself.
It is, in my view, to say the least remarkable and regrettable that, whilst a new statement was being prepared, not only was the application not made, but the possibility was not even raised by anyone on behalf of the defendant, including during the doubtless exchanges of correspondence on issues between the solicitors and indeed the discussions between counsel in relation to the agenda for experts. The explanation for this is that it was deliberate; it is stated
‘We did not want to delay matters if it was not going to be possible to finalise a statement’.
This is, in my judgement, quite unacceptable as a litigation tactic. It was very far from the cards on the table approach to litigation the court is entitled to expect from litigators experienced in this field. It risked prejudicing the litigation and wasting costs and was a risk taken because it was no doubt appreciated that when put on notice of any potential further evidence, the claimant may well have made a pre emptory application.
That delay in making the application is a relevant circumstance has been recognised by Jackson LJ in the recent case of Oak Cash and Carry Limited v British Gas Trading Limited  EWCA Civ 153. Here, the delay is inexcusable and in part a deliberate choice. In my judgment the deliberate choice to delay making an application is likely to always weigh heavily against the grant of relief.
I now turn to the specific factors set out in 3.9. Orders to date in this matter have sought to map out the progression of this complex and high value case. As a generality the more complex and demanding the case, the greater the need to follow those orders to avoid the case being derailed with significant cost consequences. The orders gave adequate timeframes. The parties extended them. They did so no doubt because it still left enough time for the matter to be properly progressed. Experts have been rescheduled. However the result is that time, even in the absence of this application, was tight. As I have already set out if the application is to be allowed, there would be, if not an ambush, a very significant undermining of the trial preparation, because time is so short.
A last minute scramble is exactly what the detailed, the careful orders of the court were designed to avoid. CPR 3.9 underlines the importance of complying with orders and, in my judgement, this application if granted would in part condone the continuance of the old lax culture of non compliance and delay, as typified by the approach between February and April when no urgency was exhibited, and, indeed, the deliberate step was taken of not even telling the claimant that Mr Fekry had said something which was going to dramatically alter matters. The submission that there is no real mischief here because the evidence would have emerged somewhat like the proverbial rabbit out of the hat at trial is also in line with what I view as a somewhat complacent approach to litigation. Such approach is entirely contrary to the weight of recent jurisprudence. Litigation is to be conducted fairly and efficiently and court orders are designed to ensure that that is so. It is right and proper that 3.9 reminds a judge at this stage of the importance of compliance with orders.
Of lesser significance in this case but still a factor, is that there would also be additional and unavoidable costs, if the application be granted, caused by the need to respond to the statement.
As can be seen the specific factor set out in CPR 3.9 weigh against the grant of relief.
I have, of course, considered the overarching assessment of the matters set out at paragraph 13 of Ms Hemming’s witness statement and considered proportionality. If I refuse the application, the case will proceed to a trial on partial evidence. Further, this is a case of high value and of particular importance to the defendants and to Mr Fekry. However, such matters have to be balanced against the fact that the fault for the trial being as it is or will be lies squarely and solely with the defendant. There has been a failure to properly address the requirements of proper litigation practice, to comply with orders and to properly progress the case. There has been delay, in part deliberately, and there would be a very significant impact upon the claimant’s trial preparation should she be forced into cramming a great deal work involving an expert and Counsel into a very short period of time. This on the basis that the trial date can be kept; which is something about which there must be doubt. In my judgment the weight of these considerations favour refusing the application. I should add note that as a starting point proportionality is, as set out at paragraph 40 in the Court of Appeal judgment in Durant v Financial Services Authority  EWCA Civ 746, to be seen in light of the fact that the order of the District Judge should be considered to have contained a proportionate sanction. It was there to be seen and not appealed.
Having carefully considered all of the factors, and for the reasons that I have set out as I have dealt with each one of them in turn, they weigh individually against, and cumulatively very heavily against, the grant of relief. I well recognise the consequences of relief but, in my view, it is a proportionate sanction.