Magee v Willmott: Skype appeals, relief from sanctions and getting your application right

June 15, 2020

By Helen Rutherford

The recently-decided case of Magee v Willmott, heard on 1st May 2020, had judgment handed down by email at 2pm on 29th May 2020. It was heard by Mrs Justice Yip QC sitting at Manchester High Court. What would have been unusual only a few months ago has now become the norm: it was heard by Skype for Business.

Appearing in the High Court generally means attending the court centre, going through security, sitting in a large court room (possibly with various observers) and getting to one’s feet to make submissions. We may be robed. Invariably there is a sense of occasion and a great degree of formality.

On the 1st May 2020, while Mrs Justice Yip QC was sitting in the High Court in Manchester, in that large court room, I was sitting in my front room/office space. Instead of rising to my feet to speak, I clicked the unmute button. There was still formality, and a sense of occasion, but it was a very different experience to my previous appearances in the High Court.

I have to say, the technology worked almost flawlessly. There was a strange echo at the start, but this was identified as being because the court clerk was in the court room as well, also on the “call” and was resolved with him dropping off.

Both sides had every opportunity to argue their case, respond to questions and concerns and reply to opposing counsel. The call was also attended by various interested parties, confirming that the court was truly open. While I do not anticipate that appeals will regularly be heard in this way when life is back to normal, it’s good to know that this option exists and is perfectly workable.

The Case

The appeal was from a decision by Mr Recorder Riza QC. The application was heard in Oxford and the judgment handed down a few weeks later in the County Court at Reading.

The original hearing was listed for a day and dealt with three separate applications. Two of those applications were the subject of this appeal.

The Claimant’s claim was for clinical negligence, relating to an alleged late diagnosis of bowel cancer. The Second Defendant, the appellant, was the Claimant’s GP. No detailed discussion on the allegations at this stage is appropriate, given that the matter remains ongoing.

The Claimant relied upon medical evidence in bringing her claim. That evidence was due to be updated and consolidated (each expert had provided a report and various letters or addendums) and exchanged by 15th July 2019. On the 6th August 2019 the Claimant applied to rely upon three new reports, served out of time: GP, consultant surgeon and oncologist.

The Claimant applied for relief from sanction, and the Second Defendant applied for strike out on the basis that there was no medical expert evidence in support of the allegations contained within the Particulars of Negligence.

The First Instance Decision

At first instance Mr Recorder Riza QC granted the Claimant relief and permission to rely upon the medical reports. It was accepted that the breach was serious and/or significant. The reason for it was a mistake by the Claimant’s solicitor, in believing that he was serving consolidated reports, when in fact he was serving the original reports (although the Defendant did not accept that was a true and accurate account). In looking at all of the circumstances, the fact of losing a trial date was said to be important but not conclusive. The Recorder felt the balance tipped in favour of the Claimant.

He stated: Now all the expert evidence is to hand and the case is trial ready my task is to ask whether it is necessary and proportionate to the legitimate aim of the overriding objective to deprive C a trial of her claim owing to the serious and inexcusable breaches of the rules and/or orders.”

The Recorder referred to the fact that the breaches were caused by the Claimant’s representatives, not the Claimant herself, and noted the seriousness of the Claimant’s condition and thus the importance of her claim, to her.

In response to the Second Defendant’s request for clarification and permission to appeal, the Recorder referred to the Claimant’s right of access to justice, pursuant to Article 6 of ECHR. This is not a consideration which the Claimant raised at the hearing.

Having granted the Claimant relief from sanctions, the Recorder then continued to dismiss the Second Defendant’s application for strike out.


The Appeal

Venue for the Appeal

Despite the case being managed in Reading and the original hearing being in Oxford (due to judicial availability on the day), the appeal was issued in Manchester. The reason for that was the convenience not only of Counsel for the Appellant, but also the solicitors. Coincidentally, solicitors for both parties were based in the North West.

The Respondent did not take issue with the venue for the appeal, but it was noted in the Judgment that CPR PD52B makes it clear that the appeal should be issued in the appeal centre listed in the table at the end of the Practice Direction; in this case, the venue would be Oxford. It was stated that in choosing a venue other than those specified in the Practice Direction could lead to the appeal not being accepted. In this case, however, jurisdiction was accepted by the court and the matter proceeded.

Relief From Sanction

The decision to grant the Claimant relief from sanction was overturned on appeal. The reasons were as follows:

  • The Recorder erred in his approach to the application for relief from sanction:
    • He referred to the test in CPR 3.9, as explained in Denton but his analysis demonstrated a different approach;
    • The Recorder asked whether it was “necessary” to deprive the Claimant of her right to a trial;
    • When looking at the balance of prejudice, the Recorder did not consider all of the relevant factors, including the factors specifically mentioned in CPR 3.9;
    • It was not enough to balance the Claimant losing her claim against the prejudice to the Second Defendant/Appellant caused by the loss of a trial date and ongoing worry. The court must look at all of the circumstances, with reference to the overriding objective.
  • Granting relief “rewarded the inefficient and improper conduct of the Respodent’s solicitor at the expense of a party who has done everything possible to conduct the litigation efficiently and without incurring unnecessary cost”.
  • The refusal to grant relief was not incompatible with the Respondent’s rights under Article 6 of the ECHR.

Strike Out

The decision not to strike out the claim was upheld. The Particulars of Claim “do disclose a claim, which if made out on the evidence, would succeed.” The expert evidence available at the time of the issue of proceedings was sufficient to mount a claim.

It was noted that the court should be slow to strike a claim out as an abuse of process.

Things to Take Away

While the decision in this case is fact specific, there are some useful points to take away.

  • Ensure the appeal is issued in the correct appeal centre: See CPR PD52B Table A.
  • When applying for relief from sanctions, be as accurate as you can. The application is more likely to be successful if there are no concerns about the accuracy of the witness statement in support of the application.
  • Make the application for relief from sanctions at the first available opportunity. In this case, the solicitor for the Claimant was criticised for waiting until he had the evidence together before making his application.
  • If concerns are raised in a witness statement in response to the application, respond to those concerns with evidence in support. This will ensure that your version is as clear as it can be.
  • Breach evidence is fundamental to clinical negligence claims. Make sure it is all in order at the earliest possible opportunity.
  • When drafting Particulars of Claim for clinical negligence proceedings, ensure that all allegations of negligence are supported by breach evidence from an appropriate expert.