William Audland QC, acting for the Claimant, successfully resisted an application by the Defendant to stay a clinical negligence claim (and adjourn the assessment of damages) pending the outcome of the Court of Appeal’s decision in Reaney v University Hospital of North Staffordshire NHS Trust.
The Claimant in Simon claims damages in respect of sacral pressure sores which he developed as a result of clinical negligence occurring in the course of his treatment by the Defendant Trust for spinal injuries. The Claimant’s case is that he spent an additional year in hospital as a result of the pressure sores, and was under-rehabilitated on his discharge due to the fact he could not undergo the spinal rehabilitation programme that would otherwise have been offered to patients with his condition. He claims substantial damages for his increased lifelong care needs attributable to his permanently vulnerable sacral skin. Although the Trust has admitted breach of duty, causation is denied on the basis that the majority of his care needs would have arisen from his paraplegia in any event. Judgment had been entered for the Claimant, with damages to be assessed at a quantum-only trial listed in 5 months’ time. The case had progressed and was almost ready for trial: the only outstanding steps being the joint statements. The Defendant valued the case at £83,000; whilst the Claimant’s claim was for £1.6m. The Claimant had relied on Sklair v Haycock [2009] EWHC 3328 and Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016 (QB) in support of his valuation, contending that he does not have to give credit for care that would have been provided by the local authority but for the Defendant’s negligence .
The Defendant’s primary case was that there is nothing inconsistent between the decision in Reaney and its contention that the Claimant does have to give credit but its alternative case was that Reaney (and Sklair) was wrongly decided, and that as this is an important issue for the NHSLA in clinical negligence claims generally, a stay was appropriate pending clarification from the Court of Appeal as to the correct approach in law to the assessment of damages in such circumstances.
The Claimant argued thata stay was contrary to the overriding objective. First, a stay was inappropriate because these were first instance decisions so the Defendant is not prevented from advancing either its primary or its alternative case at trial. Secondly, the primary issue as to causation turned on the expert medical evidence, not the law, and that would benefit from an early resolution. Thirdly, if the Defendant lost the relevant legal argument at trial, it could seek permission to appeal and a stay of any appeal, or an extension of time in which to appeal, pending the outcome of the appeal in Reaney, which was to be heard some two weeks after the trial of this case, so no injustice would flow from the refusal of a stay. Further, it was far from clear that the appeal in Reaney will succeed, the decision being in line with Sklair (which was never appealed). If, by contrast, the Court of Appeal overturned the first instance decision in Reaney, any appeal in the instant case could be compromised in terms of credit given in damages. By contrast, significant injustice would result to the Claimant from any stay: a lengthy delay in the early trial of the expert evidence relating to the key issue; and that delay was prejudicial to the Claimant personally.
The Defendant contended that the Claimant would not be prejudiced by any stay as he would recover damages eventually, was in receipt of local authority care presently and had received an interim payment. It was submitted that a failure to grant a stay would lead to wasted expenses, the likelihood of an appeal, and a delay in the final determination of the matter. It was further argued that the refusal of a stay would result in the parties not being on an even footing because the Trust would be unable to engage meaningfully in ADR.
Supperstone J held that the Court’s discretionary power in CPR 3.1(2)(f) to stay proceedings must be exercised in accordance with the overriding objective, and he was not persuaded that there was any substantial or real injustice to the Defendant for the reasons given by the Claimant’s counsel. A stay would mean that there would be substantial injustice to the Claimant arising out of a probable delay of a year or more and the consequent financial hardship. Further, for reasons personal to Mr Simon, a stay would be particularly objectionable in this case. It was desirable that the directions set down to trial should proceed. The balance of competing considerations under the overriding objective favoured continuing to the trial originally listed. The application for a stay was therefore refused.
COMMENT
In addition to being a valuable addition to procedural precedent, the case is a reminder that the interests of the individual litigants cannot be subordinated to the legal issues alone.
Decisions on case management are rarely reported, turning largely on the discretion of the judge hearing the case. However, there is little guidance for practitioners in relation to the circumstances in which the Court should stay/adjourn a trial at first instance pending the outcome of an appeal in another case on a material point of law. It is generally thought that a stay of proceedings may be granted pending the outcome of a test case (see e.g. Blackstones Civil Practice 2015 and Zuckerman on Civil Procedure: Principles of Practice) and the authority commonly cited is Woods v Duncan [1946] AC 401. However, although that case is a House of Lords authority, the text of the decision in fact provides little support for the principle. Rather, it is more the circumstances surrounding the case and less the dicta in the case itself which support the principle. The opening paragraphs of the judgment notes that “claims by many other plaintiffs depend on the decision in this appeal.”
Supperstone J’s decision in this case, however, demonstrates that a close consideration of the factors in the individual case (including the progress of the timetable, the circumstances of the parties, the arguments being advanced by either side, and the procedural alternatives available to each party if a stay is not granted) is determinative of the balance of justice/prejudice pursuant to an application of the overriding objective.
