TAIT v Toray & South Devon NHS Foundation Trust

1. MR JUSTICE SOOLE: I have before me the defendant Trust’s application dated 28 November 2024 which at its heart applies to vacate the 9-day trial on causation and quantum issues which is currently listed to commence in a 5-day window beginning on 3 March 2025.

2. The claim arises out of admittedly negligent medical care provided to the claimant between 2008 and 2017. It claims damages in excess of £13 million. Proceedings were issued on 27 October 2021. On 7 November 2022 judgment was entered for damages to be assessed. The judgment order recited a number of admissions which the defendant had made.

3. At the time of that order, the claim was based on allegations that the claimant, who was born in 1990, was suffering from a functional condition known as Dysfunctional Breathing (‘DB’) and also the effects of excessive and unnecessary steroid prescriptions.

4. In February 2023 the claimant, through her own initiative, sought further specialist advice. She was diagnosed with a functional neurological disorder (‘FND’). There has been a dramatic deterioration in her condition since that diagnosis. She requires a high level of care. There is enormous interference with her activities of daily living, including looking after her children, and serious pain and disability. The diagnosis of FND was made by a Professor Edwards and is now undisputed.

5. Without the benefit of that diagnosis, case management directions were made on 6 February 2023. On 16 October 2023 the claimant made an application for permission to vary the expert evidence, so as to include evidence in the field of neurology to address the issue of FND, and for consequential directions. That application was heard by Master Sullivan on 22 November 2023. Permission was granted and the directions included service of amended particulars of claim.

6. No defence had been served initially. The judgment had been obtained on the basis of a letter of admissions. The defence and the defendant’s quantum evidence were to be served by a date in July 2024. There was a little delay and they were served on 13 August 2024. On reading the defence and the expert evidence, the claimant’s legal advisers concluded that the defence and the expert evidence - in particular that of the claimant’s neurologist, Dr Sare - were inconsistent with the judgment order and the admissions which it recorded.

7. An application to strike out the defence and to bar the defendant from relying on such evidence was issued on 10 September and heard by Master Sullivan on 28 October 2024. On 20 November 2024 Master Sullivan handed down judgment, concluding that the defence was inconsistent with the judgment order in two essential respects. First, that it advanced a case that treatment for DB would not have been successful from 2008. Secondly, insofar as it is suggested that the symptoms recorded in the judgment, up to the date of the judgment, were not caused by the negligence. I understand it to be common ground between the parties that the claimant’s current symptoms are entirely accounted for by her FND.

8. The defendant had concern at the hearing that, if the claimant was right and the defence had to be revised, there would be difficulty in having all the evidence available for the trial date. The directions included a requirement that, if there was to be an application, it must be done within a short timescale. As already noted, the present application was dated 28 November 2024.

9. On behalf of the defendant, Ms Laura Johnson, KC says that, as a result of the Master’s decision, the evidence has had to be reviewed in every respect, and starting with a fresh report from Dr Sare. There is a planned meeting with Dr Sare on 13 December to consider the matter. She submits that that report, once obtained, will then have to be provided to the other medical experts to consider its effect on their evidence. When the other medical experts have completed their reports, they will in turn have to be supplied to the non-medical experts - accommodation and care in particular being a very large part of the claim of future loss - for their consideration. There would then have to be time for preparation of the defence and counter-schedule.

10. Taking into account the availability of experts and the necessary time taken by each to do their work, and considering the potential chronology in some detail, they simply would not be ready for a trial in the 5-day window commencing 3 March 2025.

11. On behalf of the claimant, Ms Katie Gollop, KC reminds me of the familiar authorities on applications to vacate the trial. She submits that the problem which has arisen is entirely the responsibility of the defendant in having allowed a case to proceed which was in conflict with the judgment order. If there are difficulties, that is the misfortune of the defendant. It should not allow the date to be lost for this claimant with her very serious disability and condition. She reminds me that the admitted negligence relates to a period which began some 16 years ago, when the claimant was 18.

12. Ms Gollop further submits that, faced with the application that was being made to strike out and debar, the defendant’s advisers could and should have made preparation for alternative reports to be prepared in the event that the claimant’s submissions on inconsistency were found to be correct. They have chosen to put all their eggs in one basket, but that should not be to their advantage. They could and should have considered alternative possibilities.

13. Ms Gollop then submits that, in any event and on a close analysis of the evidence, there is very much less in dispute between the parties than the defendant suggests. In that respect, particular criticism is focussed on the defendant’s proposition that there is a real issue as to causation in respect of FND, i.e. as to whether or not FND was caused or materially contributed to by the admitted negligence. Ms Gollop says that too much is being made of the distinction between DB and FND. They are both functional conditions and the latter essentially involves a relabelling of that which was always the case. The defendant should be in a position at this stage to produce something by way of positive evidence from Dr Sare that there really is an issue on causation. If there is no such issue, then much of the work on further expert reports falls away; and with carefully tailored case management the matter could be heard.

14. Ms Gollop then points, with force, to the claimant’s witness statement dated 29 November 2024. This sets out her very great distress at the possibility that the trial does not go ahead. Ms Tait states that she has been told that, if the compensation hearing does not go ahead in March, it will not come back to Court until around September or October next year, at the earliest. She says that the thought of having to live an extra 7 to 9 months in limbo with no treatment and the condition getting worse, living in a cramped house where she cannot manage the stairs and needs help to get around, is awful. She and her husband live with their two young boys who are home-schooled. She is absolutely desperate to make whatever gain she can with her health, so that she can start living her life with her husband and her children as she would want. The delay affects the whole family and, in her words, “it is absolutely crushing to think about the idea of being where I am now this time next year.” She goes on to state that all that has happened is entirely the fault of the defendant and not of her own.

15. Ms Johnson realistically and inevitably acknowledges the considerable hurdle that the application has to overcome. I have not found this an easy matter to weigh up. I am very conscious of all that is said by the claimant in her witness statement. I am also conscious that the defendant is in its position because it took a wrong turning in its evidence; which has then required the hearing before Master Sullivan, at which it was unsuccessful.

16. However, in my judgment, the just and fair course is that the trial should be vacated. There is no suggestion that the defendant has acted in bad faith, nor could there be. Having got into the position of which it is the author, the defendant has to revise its evidence in the way that is suggested. I accept that this needs to be done in the sequential order that Ms Johnson outlines. I also accept that that cannot be done by March.

17. As I have indicated, Ms Gollop presented a careful argument as to how a more nuanced and carefully tailored case management approach could be adopted. I am not persuaded by that analysis. It requires the court to take a view on the merits of the case and of the detailed arguments which arise. The court is simply not in the position to do at this stage.

18. Ms Gollop also raised the possibility of using the March hearing date for a hearing on causation alone. She submitted that this could be done in a couple of days, simply hearing the evidence of the rival neurologists. I am not persuaded that such a hearing could, necessarily be confined to those two disciplines. In any event, there would then almost inevitably be a reserved judgment; and then further directions for quantum. The matter would be postponed perhaps even longer than if all the matters were heard together. I therefore see no advantage to the claimant in that course.

19. I also have taken into account the position of the court. In my judgment, if the trial were to go ahead now on some accelerated timetable for all the evidence, the result would be a muddle and problems for the court. It would not be a fair trial.

20. I have then weighed in the balance the very powerful witness statement from Ms Tait and the court. These are long times to wait, and it is in her interest, and her family’s interest, to have the matter determined as soon as possible. She has indeed waited a long time. However, I am quite satisfied that if the matter proceeded the result would not be a fair trial; and that the claimant’s anguish and disappointment at the delay, serious as that is, does not outweigh that factor.

21. Accordingly the trial will be vacated. I propose that it be relisted in a long window, earlier than that which would normally apply if we were starting on the first directions hearing. At the moment the current published trial period for a 9-day trial is 12 January 2026 to 27 March 2026. I will make an order that the trial should be relisted in a trial window commencing earlier than is suggested in the application, namely 4 June 2025 until 19 December 2025. Counsel should now get together and draft a timetable towards a trial within that window. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected]