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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Joyce v James & Anor [2001] EWCA Civ 1367 (23 August 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1367.html Cite as: [2001] EWCA Civ 1367

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
FROM GUILDFORD COUNTY COURT
(HHJ PARRY)
(Application of 2nd Defendant for PTA)

		Royal Courts of Justice Strand London WC2 Thursday 23rd August 2001

Thursday 23rd August 2001

1. LORD JUSTICE MAY: This is a renewed application for permission to appeal an order made by His Honour Judge Parry at the Guildford County Court on 11th July 2001. It is a personal injury action. The order dismissed an appeal against part of case management directions and orders which had been made by District Judge Derbyshire on 30th April 2001. Clarke LJ refused permission on paper and Mr Charlton has very kindly interrupted his holiday to renew the application orally this morning.
2. The trouble is this would be a second appeal and an appeal to which rule 52.13 and section 55 of the Access to Justice Act 1999 apply. I say straight away that, in my judgment, eloquent though he has been, Mr Charlton comes nowhere near persuading me that the criteria for giving permission to appeal for a second appeal are met. I refuse the application and these are my brief reasons.
3. The claimant, Mr Joyce, was involved in what by description was a terrifying road accident as long ago as 31st March 1994. Liability is admitted. The case, so it seems to me - but I emphasise I know less about it than some people - should have been brought to a conclusion long ago. It looks, from what I have read, as if Mr Joyce did not suffer a physical head injury and it has not been established that he suffered physically discernible brain damage, but a part at least of his claim for damages depends on the assertion that he suffered and suffers from post traumatic stress disorder.
4. Dr Kidd was a treating psychiatrist of this claimant, who in a report dated 17th September 1996, diagnosed post traumatic stress disorder.
5. There was apparently another expert's reports obtained on behalf of the claimant from a Dr Bolton, who died. Dr Ball replaced Dr Bolton and wrote a comprehensive report dated 7th September 2000 which, as Mr Charlton has pointed out correctly, takes account of Dr Kidd's report and the opinion which Dr Ball expressed and concludes is that the claimant is suffering from post traumatic stress disorder.
6. The defendants have instructed as their expert in this field Professor Trimble. He made reports dated 10th December 1998 and 7th March 2001. He appears to question this diagnosis and refers to the use of amphetamines as being of relevance to any condition that the claimant may be suffering. Needless to say that that is a single sentence allusive summary of what Professor Trimble says in full.
7. On 30th April 2001 the District Judge held a case management conference. He gave case management directions, which included that the claimant could rely on Dr Kidd's report in addition to that of Dr Ball. He directed that the three psychiatric witnesses should meet for discussion, and, if possible, to reach such agreement as they might, and that there should be a pre-trial review on 3rd September 2001, that is to say next week, to decide, among other things, whether Dr Kidd should be called at trial.
8. The defendants contended and contend that the claimant should be limited to one psychiatric expert and that Dr Kidd should be excluded. The judge upheld the order of the District Judge on appeal.
9. The defendants' proposed grounds of appeal and submissions in summary are: firstly, that Dr Kidd is unnecessary. The material in his report is wholly encompassed and covered by Dr Ball. Secondly, that to call him is a waste of time and cost, including a waste of the court's time. Thirdly, that it is disproportionate for the claimant to have two experts when the defendant only has one. Fourthly, that the terms of rule 35.1 and 35.4 for permitting reliance on Dr Kidd are not met. Fifthly, that the defendants are prejudiced in their ability to submit on 3rd September that Dr Kidd should not be called.
10. Mr Charlton tells me this morning, firstly, that his understanding is that the three experts have not yet met. It looks as if they have to get on with that because the District Judge is obviously not going to be happy if they have not done so by 3rd September. Secondly, that in the meantime the claimant has produced yet further reports from Dr Kidd and Dr Ball and they reach different or, in some respects, conflicting conclusions.
11. As to those, it seems to me that I have nothing to do with them this morning. It is an entirely open question whether, in this long drawn-out affair, the court is going to allow or not allow the claimant to have yet further reports from one or either of these two experts. The only question for this morning is whether the defendant should have permission to appeal against the judge's upholding of the District Judge's case management directions. As I have said, in my judgment, the defendant comprehensively fails to meet the rule 52.13 criteria. I note that Judge Parry found that the nature of the appeal to him was difficult to justify.
12. Mr Charlton submits that a point of principle does arise. The purpose, he submits, of Part 35 is to reduce the incidence of reliance on expert evidence, and rule 35.1 and 35.4 lay down criteria beyond which expert evidence should not be permitted. He submits that, unless the Court of Appeal gives a decision on these provisions as to how they should be applied in practice, the courts will be left, if not floundering, at least prone to error. He submits that it is insufficient in the present case for the judge to have concluded that hearing from a treating doctor might be "interesting", in the absence of it being demonstrated that Dr Kidd had anything to say which Dr Ball might not say on behalf of the claimant. He submits that Dr Ball deals with everything that has gone before and he can, it is conceded, says Mr Charlton, deal with everything that Dr Kidd had said.
13. This was a discretionary case management decision. I do not think that it raises any great point of principle at all as to any test to be applied under rule 35. The rule itself is perfectly clear. This was, up to a point, a discretionary application of it, but in fact the court has yet to decide whether to permit Dr Kidd to be called or not. I see nothing whatever wrong with directing that the three experts should meet, and, as I say, it has yet to be decided whether Dr Kidd should be called, but, as Clarke LJ observed, he was a treating doctor.
14. I have indicated my view that no great point of principle arises and that the criteria of rule 52.13 are not met. Even if I had thought there was a point of principle, I am confident I would not have been persuaded to consider that this was a proper case for the Court of Appeal giving the kind of guidance that Mr Charlton suggests should be given. I say that for this reason. The overriding objective has many aspects. One of them is that cases should be brought to a conclusion and decided. It seems to me that no injustice is caused to the defendants for the matter to go forward to 3rd September, when the District Judge will be able to make whatever decisions are then necessary as to expert evidence in the light of any application that the claimant may make in relation to the new reports. One thing is abundantly plain, and that is that this particular case needs to be brought to a speedy conclusion and that the timetable that has been set for trial in October should be adhered to. It would not be adhered to if this particular case management point were brought to the Court of Appeal. It seems to me that that would be a strong reason, if I had got that far in my determination, for refusing permission on the ground that I do not think the defendants are suffering any injustice by the order has been made. It seems to me that the matter should proceed.
ORDER: PTA refused.