Joel and Martyn were instructed by Dr Jock Mackenzie and Amy Wedgwood at Anthony Gold Solicitors. The Master’s decision ( EWHC 1345 QB) evoked widespread comment and some consternation among commentators. There is no clinical negligence case, at least in recent memory, in which either a claimant or a defendant has managed to obtain summary judgment, and the circumstances in Hewes are of particular note.
The defendant GP served his expert’s breach of duty report in support of his application, ahead of the Master’s order for exchange of witness statements and some 10 weeks prior to the date for exchange of reports. The claimant’s advisers faced the difficult choice of how to respond, as a report from his own expert would inevitably have been incomplete. They therefore served a supportive letter from the expert. However, the Master deemed this insufficient to demonstrate that Mr Hewes had any realistic chance of success. On appeal Mr Justice Foskett upheld Joel and Martyn’s arguments that this approach was wrong. The Master did not have proper regard to the evidence that would reasonably be available at a trial of the claim, and should not have regarded the defendant’s report as determinative.
Although there may be clinical negligence claims in which an application for summary judgment is appropriate, there would be few cases in which such a course should be contemplated prior to exchange of experts’ reports and, in most cases, prior to joint discussion between the experts.