A High Court judge has overturned the decision to throw out a clinical negligence case where the defendant had submitted their evidence far earlier than agreed. 

In Hewes v West Hertfordshire Hospitals NHS Trust, Mr Justice Foskett said it was unreasonable to expect the claimant’s solicitors to produce a full response months before it was directed to. 

In June, Master Cook had dismissed the claimant’s case against a doctor, saying the claimant had to put in clear evidence in response to the defence’s application for summary judgment. 

The master’s ruling caused concern among claimant lawyers that more defendants might simply apply for summary judgment knowing the opposition had yet to put together their witness statements and expert evidence. 

In Hewes, where the defendant denies responsibility for the claimant’s serious bowel dysfunction, the parties were directed in January to exchange witness statements by 27 April and reports from GP experts by 3 July. The trial was fixed for March 2019. 

But in late February, lawyers for the defendant applied for summary judgment, along with an expert report, and argued that because the allegation of breach of duty had no real prospect of success, the court should dismiss the case before statements and reports were exchanged. 

Mr Justice Foskett noted it was ‘hardly surprising’ that the claimant’s solicitors were not ready to respond immediately with their own report in support of the case.  In the event, their GP expert could submit only a short statement confirming that he would continue to support the claimant’s case. 

The judge said Master Cook had relied on the adequacy of this response to make a summary judgment, and satisfied himself the claimant had no reasonable prospect of success. 

On appeal, the claimant argued that the defendant did not have permission to serve the witness report  which in any case was never tested in court, and that the master failed to have any regard for the evidence that would be available at trial. 

Mr Justice Foskett said it was unreasonable to expect the claimants to respond in full to the defence’s premature evidence, adding: ‘I can well understand the reluctance of C’s advisers to permit their expert to tie himself to the terms of a rapidly-produced, short response. Any omission or infelicitously expressed observation would doubtless be seized upon at trial.‘ 

The appeal was allowed and the judge indicated that the original trial date should stand.