Substantial claim for damages for clinical negligence - need for parties to be on equal footing - no requirement to limit number of expert witnesses to one

S v Chesterfield and North Derbyshire Royal Hospital NHS Trust: CA (Lords Justice Kennedy and Brooke and Mr Justice Holman): 25 July 2003

The claimant brought an action against the defendant claiming damages of around 1.5 million for personal injuries, alleging clinical negligence against the hospital's obstetric registrar.

The master, pursuant to the Civil Procedure Rules 1998 (CPR), rule 35.1, ordered, in relation to the issue of duty and standard of care, that the number of independent expert witnesses as to the practice of the body of obstetricians be limited to one, in addition to the evidence of the registrar and a consultant from the same hospital who would give evidence as to what the registrar had done as a reasonable obstetrician with his qualification and experience.

The master refused the claimant's application to allow evidence from another independent expert witness, on the ground that that would delay the trial and cause additional expense.

The claimant appealed.

Simon Wheatley (instructed by Edwards Geldard, Derby) for the claimant; Andrew Hockton (instructed by Eversheds, Newcastle upon Tyne) for the defendant.

Held, allowing the appeal, that nothing in the CPR required the court to limit the number of independent expert witnesses to one when the litigation involved an inquiry as to the standard of reasonable care of the body of obstetricians; that, where the issue in the litigation was complex and the claim for damages was substantial, the overriding objective required the court to ensure that the parties were on an equal footing; and that, therefore, the court was not restricted to the mechanical application of CPR, rule 35.1.

Financial services - regulator serving notice proposing to make prohibition order - claim for judicial review of notice not appropriate other than in most exceptional circumstances

R (Davis and others) v Financial Services Authority: CA (Lords Justice Kennedy, Mummery and Carnwath): 30 July 2003

In July 2001, the Securities and Futures Authority (SFA) started proceedings against the claimants pursuant to the Financial Services Act 1986, relating to their alleged misconduct in securities dealings with the clients of their former employers.

Prior to the conclusion of the proceedings, the defendant authority replaced the SFA when the Financial Services and Markets Act 2000 came into force.

The defendant, being unable to take disciplinary proceedings against the claimants by reason of the expiry of the two-year time limit for the bringing of proceedings on the allegation of misconduct, served on the claimants warning notices under section 57 of the 2000 Act, proposing to make prohibition orders against them on the grounds that they were not fit and proper persons to perform certain regulated activities.

The judge [2003] 1 WLR 1284, refused the claimants permission to seek judicial review of the notice on the ground that the claim was unarguable.

The claimants appealed.

Michael Beloff QC and Pushpinder Saini (instructed by Denton Wilde Sapte) for the claimants; Javan Herberg (instructed by Financial Services Authority) for the defendant.

Held, dismissing the appeal, that the legislative purpose evident from the detailed statutory scheme was that those aggrieved by the decision and actions of the authority should have recourse to the special procedures there provided, first by making representation to the authority to vary its decision under its statutory power, and then by making reference to the Financial Services and Markets Tribunal with a right to appeal direct to the Court of Appeal on points of law arising from the decision of the tribunal; that recourse to the general jurisdiction of the Administrative Court could be available only in most exceptional circumstances; but that the claimants had not shown such circumstances.