ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust

ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust

In this case, the presence of three consultant obstetricians on the defendant's side (two as witnesses of fact and one as an expert) constitutes an exceptional feature justifying the exercise of discretion to allow the claimant to call two experts in obstetrics. Limiting the claimant to one expert would create inequality of arms and would not achieve justice in accordance with the overriding objective. The additional cost and time are proportionate given the value and importance of the case.

Parties
Claimant/appellant: E S (by her Mother and litigation friend D S); Defendant/respondent: Chesterfield and North Derbyshire Royal Hospital NHS Trust
Jurisdiction
England and Wales
Judgment Date
25 July 2003
Procedural Posture
Civil Appeal (clinical Negligence) / Appeal From Case Management Conference Order
Outcome
Appeal allowed
Legal Topics
Expert Evidence, Case Management, Equality of Arms, Bolam Test
Civil Procedure Medical Negligence Expert Evidence Case Management Equality of Arms Bolam Test

Case Brief

Summary, issues, holding and outcome

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Parties

E S (by her Mother and litigation friend D S)

Claimant/appellant

Chesterfield and North Derbyshire Royal Hospital NHS Trust

Defendant/respondent

Procedural Posture

Civil Appeal (clinical Negligence) / Appeal From Case Management Conference Order

Legal Issues

  1. 1 Whether the claimant should be permitted to call two experts in obstetrics in a clinical negligence action
  2. 2 Whether limiting the claimant to one expert while the defendant has three consultant obstetricians (two as witnesses of fact) creates inequality of arms
  3. 3 Whether the court should exercise discretion to allow more than one expert per party in a single discipline

Ratio Decidendi

In this case, the presence of three consultant obstetricians on the defendant's side (two as witnesses of fact and one as an expert) constitutes an exceptional feature justifying the exercise of discretion to allow the claimant to call two experts in obstetrics. Limiting the claimant to one expert would create inequality of arms and would not achieve justice in accordance with the overriding objective. The additional cost and time are proportionate given the value and importance of the case.

Court Disposition

Appeal allowed

Orders

  • Paragraph 7A of the master's order varied to permit the claimant to call two experts in obstetrics
  • Respondents to pay the appellant's publicly funded costs of the appeal, such costs to be assessed