In Sellar-Elliott v Howling  EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute. This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence.
The Claimant, represented by Penningtons Manches LLP and Simon Dyer of Cloisters, alleged that the Defendant, a consultant radiologist who carried out a CT scan on the Claimant in 2008, had failed to report on a mass on the Claimant’s liver. In early 2012 the mass was identified as a malignant tumour as a result of which the Claimant underwent “extensive, distressing and debilitating treatment.”
The Defendant admitted breach of duty in its response to the Letter of Claim, on the basis that there had been a failure to identify and report on the mass, to undertake a contrast enhanced CT study and inform the Claimant’s GP. She reserved her position in relation to causation and indicated that she was in the process of obtaining further expert evidence.
An initial request for an interim payment of £100,000 was made on 17 December 2014, which was refused on the basis that the Defendant was still obtaining expert evidence as to causation.
The Claimant issued and in the Particulars of Claim alleged that had the mass been identified on the CT scan further investigation would have led to surgical resection of a benign mass, which would not have undergone malignant transformation and the Claimant would not have developed liver cancer. The Claimant sought damages in excess of £630,000 in the Preliminary Schedule of Loss.
The Defendant disputed causation and averred that by 2008 the mass was already a well differentiated carcinoma. She indicated that causation was still being investigated.
The Claimant made a further request for an interim payment, which was refused, following which she made an application on 7 May 2015 under CPR 25.7 for a payment of £65,000. Prior to the application being heard the Defendant agreed to pay £17,500 and the hearing was adjourned.
On 23 September 2015 the Claimant served a report on causation by Professor Middleton and the next day renewed her application for an interim payment, this time for £100,000. The Defendant’s expert, Professor Price commented by way of letter that Professor Middleton’s report did not change her opinion and that she considered that evidence from an expert histopathologist was required. The Defendant did not disclose Professor Price’s report.
On 15 October 2015 Master Cook refused an application for an expert histopathologist and ordered Professor Price’s evidence be disclosed by 11 December 2015.
Master Cook heard the application for an interim payment on 29 October 2015 and made an order for a payment of £100,000.
The Defendant’s permission application was heard by Sweeney J on 15 December 2015.
At first instance the Claimant had successfully relied on Smith v Bailey  EWHC 2569 (QB) in which Popplewell J decided that on an interim payment application there was an evidential burden on the Defendant to put before the court material raising any issue of contributory negligence and the court had to apply the relevant legal test to the evidence before it. Master Cook drew a comparison with Smith and noted that the arguments raised by the Claimant’s expert on causation were “formidable”, and despite time to do so, had not been subjected to “reasoned criticism” by the Defendant. Accordingly, deciding the application on the evidence before him, Master Cook had made the order for £100,000.
On behalf of the Defendant it was argued that Master Cook erred in drawing a parallel between Smith and the circumstances of this case. It was also argued it was the wrong decision given that the Claimant had only disclosed her causation evidence in September and that the Defendant had submitted a witness statement stating that the Defendant’s defence was supported by reputable expert opinion. The Defendant also argued that the impact of Master Cook’s decision was that a Claimant could apply for an interim payment, unilaterally disclose supportive evidence and force early disclosure from the Defendant.
Simon Dyer argued that the comparison Master Cook drew with Smith was correct, that the Defendant had an evidential burden to adduce sufficient evidence for the issue to go before the tribunal of fact and that it was not penalising the Defendant to expect more than a witness statement to the effect there was supportive evidence, without particulars including information as to why the Defendant’s expert’s view differs. Mr Dyer went on to argue that the argument of the Defendant amounted to saying “we’ve pleaded it and therefore no interim payment can be applied for or made.”
Sweeney J, refused permission to appeal and gave reasons in light of the importance of the issue to clinical negligence litigation. He referred to the test as set out in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (No 2)  1 WLR 2375 and concluded that the Claimant had served evidence in support of the application and the Defendant had chosen only to serve limited evidence in response. Nevertheless, the court has to decide the application on the evidence before it and Master Cook was entitled to conclude on that evidence that on the balance of probabilities the Claimant would obtain judgment and was likely to obtain a substantial amount of money. Sweeney J also concluded to that to the extent Master Cook relied on Smith, he was clearly entitled to do so.
Sweeney J pointed out that the courts would of course be alive to Claimants making applications for the purpose of forcing early disclosure. However, where the Claimant has a genuine need, this case is a reminder that representatives should not be discouraged from making a well-supported application for an interim payment merely on the basis that causation is disputed and that proceedings are at an early stage.