In a recent high value case defended by Keoghs and arising from a serious road traffic accident in March 2021, the defendant successfully resisted, for a second time, the claimant’s application to rely on expert CPR 35 care evidence. The court dismissed the application and awarded the defendant its costs. Keoghs case lead, Andrew Baines, examines the details.
Proceedings were issued and the matter progressed to an initial Costs and Case Management Conference (CCMC) in September 2024, where permission to introduce various expert medical disciplines was allowed by the court. At a second CCMC in September 2025, the claimant sought permission to rely on a report from a care expert. It was apparent from review of the claimant’s updated costs budget that an assessment had taken place four months earlier. The court refused permission at the CCMC and held that care evidence was not “necessary or reasonably required for the purpose of determination of the final issue in this case”.
Importantly:
The claimant did not appeal the decision.
Two months after the second CCMC, the claimant lodged a second application, again seeking permission for care expert evidence. The claimant’s application was supported by short supplemental letters from the their neuropsychologist who said that a care expert would be “helpful”. The claimant’s neuropsychiatrist went further, suggesting the admission of such evidence was “essential”.
The defendant’s primary submission stated that this was an attempt by the claimant to reissue an application that had already been made and refused. In a combination of a rebuttal statement and a skeleton argument, the defendant relied on pertinent case law.
1) Tibbles v SIG Plc [2012]
This confirmed that, although CPR 3.1(7) gives the court jurisdiction to vary or revoke its own orders, the discretion is tightly confined. Ordinarily, it will only be exercised where:
a. There has been a material change of circumstances; or,
b. The original decision was based on a misstatement of facts.
2) Woodhouse v Consignia Plc [2002]
Emphasised the public interest in discouraging repeat interlocutory applications based on material that could and should have been deployed earlier.
In this case, permission was originally rejected. There had been no material change in circumstances, the medical evidence was substantively unchanged and the supplemental letters did not arise from any new reassessment, diagnosis or deterioration.
Even if the court had jurisdiction under CPR 3.1(7), the application still had to satisfy CPR 35.1 that expert evidence is restricted to that which is “reasonably required” to resolve the proceedings.
Across six expert disciplines, no expert had identified long-term accident-related care needs.
A further feature of the claimant’s application was the manner in which the supplemental letters from their experts had been prepared. In stating that a care expert would be “helpful” in establishing likely future care needs without further amplification or clinical reasoning, the claimant’s neuropsychologist had not addressed the correct question. The defendant emphasised that the correct approach is for a medical expert to identify whether an injury within their expertise gives rise to a need for care. A care expert, if required, will then provide their view on how that need should be met.
The claimant’s neuropsychologist did not identify any future neuropsychologically-based need for care that would warrant input from a care expert. Indeed, they had expressly agreed no such need existed in the joint statement.
Key issues which arose from the letters included:
The court was invited to attach little or no weight to the supplemental letters and went on to find that they did not identify any specific future care need. They simply suggested a care expert would be “helpful”. The court was not persuaded that care evidence had become necessary in the intervening months and its earlier reasoning still applied.
The claimant’s application, the second in a matter of months to introduce the same expert discipline, was dismissed, and the defendant was awarded its costs of the application, summarily assessed at £13,000.
The court accepted that finality is important and parties cannot repeatedly revisit case management decisions simply because they are unhappy with the outcome. The claimant could and should have appealed the decision at the time of the second CCMC rather than elect to issue a second application several months later.
This case provides some useful tips for litigation practitioners, including:
Andrew Baines
Large Loss Lawyer, Complex Injury
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