Case No: B3/2012/2639 + 2639(A)
Neutral Citation Number: [2013] EWCA Civ 491
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR’S & CITY OF LONDON 
COURT, HHJ BIRTLES
REF: 9MY00950
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/05/2013
Before :

LORD JUSTICE MAURICE KAY, 
Vice President of the Court of Appeal, Civil Division

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Between :

	SEEAR	Applicant	
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	ST GEORGE’S HEALTHCARE NHS TRUST	Respondent	

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Mr Simon Butler (instructed by Stone Rowe Brewer Solicitors LLP) for the Appellant
Mr Pritesh Rathod (instructed by Bevan Brittan LLP) for the Respondent

Hearing date : 25 April 2013
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Judgment
Lord Justice Maurice Kay  : 
1.	This is a renewed application for permission to appeal, permission having been refused on the papers by Sir Richard Buxton.  There is also an application before the Court for permission to adduce fresh evidence.  The present proceedings are in the form of a claim for damages for clinical negligence.  On 18 October 2011 in the Mayor’s and City of London Court the claim was struck out by District Judge Trent.  The applicant appealed but on 24 September 2012, her appeal was dismissed by His Honour Judge Birtles.  This is therefore now an application for a second appeal within the meaning of CPR 52.13.  It is important to place the present claims in their historical context.  
2.	On 16 July 2004 the applicant suffered personal injuries in a road traffic accident.  Following the accident she was taken to St George’s Hospital.  In due course she commenced proceedings against the driver of the other vehicle claiming that the accident had been caused by his negligence.  He was an uninsured driver and the Motor Insurers’ Bureau (MIB) became the effective defendant.  In paragraph 5 of the Particulars of Claim in those proceedings the applicant pleaded that she had sustained personal injuries “to both her neck (fracture of the odontoid peg at C1/2 level) and her ankle …”  The MIB served a defence in which it stated that it did not admit that the applicant had sustained a fracture of the odontoid peg as a result of the accident and the applicant was put to strict proof in relation to causation.  In those proceedings the applicant was represented by Shoosmiths and the MIB was represented by Weightmans.  
3.	By a letter dated 15 February 2008 Weightmans made an offer to settle the claim for £60,000.  That was significantly less that the £100,000 plus claimed by the applicant.  Weightmans stated:
“We have to say that we are concerned as to causation issues and our clients are minded to obtain a report from the radiologist … to clear up any question marks as to the causation of the spinal fusion, bearing in mind the failure to spot any spinal problems at the time of the accident.  Nevertheless, they accept that even without the spinal fusion, you client’s claim does have a value and we are therefore instructed to make an offer on a compromise basis in the sum of £60,000.
That is a gross offer before deduction of interim payments and benefits.  If that offer is not accepted we will require the documentation and the further medical investigation referred to in our last letter and we therefore look forward to hearing from you when you have your client’s instructions.  We will diarise the matter for 21 days and if we do not hear from you within that time with acceptance we will write to the radiologist with a view to establishing a timescale for preparation of their report.”
The offer was kept open beyond the 21 days and, eventually, the applicant accepted it in the net sum of £57,000.  Her case is that developments in the medical evidence meant that the odontoid peg fracture could no longer be attributed as a matter of causation to the road traffic accident, because it was a pre-existent condition.  
4.	As regards that injury, it was not diagnosed when she was taken to St George’s Hospital.  Notwithstanding X-rays and scans, no bony injury was noticed.  Her symptoms persisted and it was only in May 2006, when she attended a different hospital, that the odontoid peg fracture was first diagnosed.  In October 2006 she underwent spinal fusion surgery in connection with that injury.  
5.	The present proceedings against St George’s Hospital are in the form of an allegation of negligent delay in diagnosis of the odontoid peg fracture.  Essentially, what the applicant is saying is that she settled her claim against the MIB on the basis that the odontoid peg fracture was not causally related to the road traffic accident and she is now pursuing her present claim against St Georges Hospital for the separate matter of her suffering which resulted from the negligent failure to diagnose the injury in 2004, which suffering continued in a severe form until October 2006, the date of the spinal fusion surgery, with continuing consequences thereafter.  
The application before the District Judge
6.	The respondent applied to the District Judge for an order striking out the claim pursuant to CPR 3.4 (2) or for summary judgment against the applicant pursuant to CPR 24.2.  The case for the respondent was that the applicant had already been compensated in the road traffic accident proceedings for the damage in respect of which she is seeking to recover damages in the present proceedings.  It is plain from his judgment that the District Judge was surprised that the applicant had produced little evidence in relation to the road traffic accident proceedings and that he was being required to deal with the case on the basis that the letter from Weightmans and the subsequent acceptance of the offer was the only contemporaneous material available to him.  He said (at paragraph 14):
“… I cheerfully construe the letter as implying that the claimants were in fact claiming damages arising out of the spinal fusion which they claim to be a causative effect of the road traffic accident.  Indeed, Weightmans are expressly saying ‘We do not accept causation .  If we go ahead further, we may well make further investigations or require further medical evidence to deal with this aspect of the case’.  But it is plain as a pike staff that Shoosmiths were making a claim in respect of the damages and injury suffered by Miss Seear arising out of the spinal fusion and the spinal problems.”
7.	Having referred to relevant authorities, he concluded (at paragraph 20):
“… based on the only piece of evidence that the claimants have condescended to produce in response to this claim, again applying and construing them on the balance of probabilities and in the light of the rather modest nature of this damages claim … I am of the view that the claimant has in fact exhausted her claims for damages arising out of the pain and suffering and loss of amenity she had allegedly [sustained] as a result of the defendant’s negligence.  It is a fruitless claim and it should be dismissed on the grounds that it shows no real prospect of success or other compelling reason to remain in existence.”
8.	There is a continuing issue as to whether the District Judge was correct when he stated that the only claim in the present proceedings was for general damages in respect of the period between the road traffic accident and the spinal fusion surgery.  
The appeal to the Circuit Judge
9.	Although almost a year past between the hearing before the District Judge and the hearing of the appeal before the Circuit Judge, there was still a dearth of contemporaneous material relating to the period of the settlement of the road traffic accident proceedings.  This led Judge Birtles to observe (at paragraph 25):
“What I find extraordinary about this case is that between the hearing before District Judge Trent on 18 October 2011 and the hearing before me on 9 July 2012 was that neither side took any steps to obtain any papers from Shoesmiths or Weightmans along the lines that I have said were lacking before District Judge Trent.  In saying this I fully appreciate the potential effect of an application to admit fresh evidence and the hurdles that an applicant would have to overcome but it is surprising that the matter was not apparently investigated further by either side before the hearing of the appeal before me.”
10.	Judge Birtles identified the relevant issues as being: (1) what injuries was the applicant compensated for when her road traffic accident claim was settled?  (2) What are the consequences of a finding that her neck injury was already compensated for in the previous claim?  As to the first issue, Judge Birtles stated (at paragraph 31):
“… that letter [of 15 February 2008] shows that the causation of the neck injury was still in issue during the period of negotiations … the spinal fusion surgery had been carried out by this date and Weightmans had concerns about whether that surgery (which was necessitated by the odontoid peg fracture) was related to the accident.  The District Judge held (in my view rightly) that the offer made (and the settlement reached) was in respect of the full extent of the … neck symptoms for the relevant period, including those related to the odontoid peg fracture.”
11.	He later concluded (at paragraph 40):
“Whether the [applicant] received the full value of her claim (ie on a 100% liability basis), or on some discounted basis to reflect the litigation risk in relation to the issue of liability and causation, she had received full satisfaction for the tort.  Her cause of action in relation to the same loss was extinguished.  …  District Judge Trent had to do the best he could with the material before him.  As I have said he was not asked to adjourn the case and give directions for further disclosure.  He was asked to decide the application on the material before him.  He did so.  He based himself on the Weightmans letter of 15 February 2008.  He was entitled to do so in the absence of any other evidence provided by the parties.  On that evidence he was entitled to form a view about what damage was within the scope of the first personal injury claim.”
Judge Birtles agreed with that view.
The application to this Court
12.	Since the hearing before the District Judge and the Circuit Judge, the applicant’s solicitors (who were not involved in the road traffic accident proceedings) have obtained a witness statement from Mrs Andrea Rusbridge, a partner at Shoosmiths, who had supervised the applicant’s claim in the road traffic accident proceedings.  She exhibits a number of documents from that time.  She explains how the claim had been originally valued at a sum of at least £100,000 but that it had been settled on the significantly discounted basis because of the assessment of the causation difficulties in relation to the odontoid peg fracture.  She states:
“I can confirm that the compromise reached between the parties was on the basis that the fracture and/or any on-going symptoms connected with the fracture were not caused by the road traffic accident on the grounds that we did not have sufficient medical evidence to establish causation … the award of damages would have been much higher had evidence been available to link the fracture to the accident.”
Her statement is dated 13 February 2013.
13.	I deal first with the application to adduce and rely upon the evidence of Mrs Rusbridge.  By CPR 52.11 (2), this Court will not receive evidence which was not before the lower court “unless it orders otherwise”.  Although the principles expounded in Ladd v Marshall [1954] 1 WLR 1489 are not written into the CPR, it is well established that they remain relevant.  The first limb of the Ladd v Marshall test requires consideration of whether the fresh evidence could not have been obtained with reasonable diligence before the previous hearing.  I have no doubt that it could have been obtained before both of the previous hearings.  In a witness statement dated 13 February 2013, Mr Philip Holt, the solicitor acting for the applicant in the present proceedings, states:
“I did not expect for one moment that the letter dated 15 February 2008 could be interpreted in a manner which demonstrated that the [applicant] had accepted damages for the neck fracture … we honestly and sincerely believed that the appeal would be successful on the grounds that the letter could not be construed in the manner suggested by the [defendant].  Had we seriously believed that a court would interpret the letter in the manner suggested by the District Judge then we would have taken steps to obtain a witness statement from Mrs Rusbridge sooner … ”
14.	In my judgment there could be no clearer evidence that the first limb of the test in Ladd v Marshall has not been satisfied.  On behalf of the applicant I am asked to take a benevolent view of this partly on the basis that we are concerned with circumstances otherwise than after the completion of a trial process.  I cannot accept this submission.  The fact is that not once but twice the applicant’s case has been heard without this evidence; she was on notice as to the judicial surprise about that following the judgment of the District Judge; and yet the battle before the Circuit Judge proceeded without any diligent attempt to procure it.  I consider that it would be unfair on the respondent to permit it to be adduced and relied upon at this stage.  I should add, in any event, not all the evidence of Mrs Rusbridge would be admissible on the issue of construction of the letter of 15 February 2008 and that, as is submitted on behalf of the respondent, the new material is not entirely all one way.  
15.	Having refused the application in relation to the evidence of Mrs Rusbridge, I turn to the appeal on the basis of the original material.  As this is a second appeal within the meaning of CPR 52.13, permission cannot be granted unless I am satisfied that:
“(a)	the appeal would raise an important point of principle or practice; or
(b)	there is some other compelling reason for the Court of Appeal to hear it.” (CPR 52.13 (2)).
16.	The proposed appeal is entirely case specific and Mr Butler accepts that he cannot satisfy the first criterion.  The question therefore is whether this is a “some other compelling reason” case.  In Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, Dyson LJ said that a good starting point will almost always be consideration of the prospects of success, adding:
“It is unlikely that the Court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high …”
17.	Very high prospects of success may not be enough.  What is called for is an examination of all the circumstances.  Mr Butler submits that an examination of all the circumstances establishes not only very high prospects of success but also the opportunity to avoid an injustice flowing from the fact that the applicant will otherwise be denied an adjudication on the merits of her clinical negligence claim.  Although the applicant has already had two bites at the cherry, and although Mr Butler is constrained to accept that the consequences to her of being refused permission do not equate to the consequences in relation to, say, an alleged victim of persecution, he maintains that the interests of justice require the grant of permission.  He also asks me to view the case as extending beyond general damages for the period between the road traffic accident and the spinal fusion surgery, maintaining that there are on-going consequences of the failure to diagnose and treat timeously.
18.	It is also necessary to look at the proposed appeal from the perspective of the respondent.  Once the proposed evidence of Mrs Rusbridge is removed from the picture, the respondent is facing effectively the same case as was argued before the District Judge and the Circuit Judge.  This Court would be assessing the same material, in particular the Weightmans letter, at the time when the compromise offer was made and later accepted.  It is almost nine years since the hospitalisation, more than four years since the present proceedings were commenced and about 18 months since the application to strike out was issued.  The respondent has dealt with the case advanced in the courts below.  As a result of the view I have taken about the fresh evidence, it would be dealing with essentially the same case for a third time, albeit with two favourable orders for costs behind it.  The interests of justice also embrace the need for finality in litigation.  
19.	I return to the second limb of the second appeals test and the starting point of “very high” prospects of success.  Approaching the case on the basis of the original material, the issue was essentially one of construction of the compromise agreement founded on the Weightmans letter.  It has to be construed objectively and in its context.  The ultimate question becomes whether the District Judge and the Circuit Judge were so arguably wrong in their construction as to give rise to a very high prospect of success on appeal to this Court.  I do not feel able to reach such a conclusion.  Accordingly, and in the light of the history of this matter I do not consider there is a compelling reason to grant permission to appeal.  I therefore refuse permission.  I express no view on whether the outcome would have been different if Mrs Rusbridge’s statement had been obtained when the application to strike out was first issued.