Skip to content

“Don’t quote me” – a sorry tale of a witness statement that was a carbon copy of the pleading and other failings.

On 20 December 2023, Recorder Sheehan KC sitting at the County Court at Birmingham handed down judgment in Donna Louise Ball v Royal Wolverhampton NHS Trust, a clinical negligence case in which Nadia Whittaker acted for the successful Defendant NHS Trust.

The judgment is a helpful reminder to practitioners not to cut corners when taking witness statements, communicating with clients, and testing expert evidence before trial. The judgment shows that, even where experienced legal teams are involved, failures in communication between lawyers, clients, and experts can fatally undermine the prospects of a client’s case.

The claim

The Claimant had been suffering from a knee problem and underwent an arthroscopic procedure which unfortunately resulted in damage to the femoral nerve from the tourniquet, a non-negligent complication. The Claimant was investigated by her treating orthopaedic surgeon and referred for a second opinion to neurologists. Her treating clinicians concluded that there was no surgical treatment available to her. The Claimant was upset by her outcome and consulted solicitors, which is what brought her into contact with an expert in peripheral nerve surgery, Dr Sinisi.

Dr Sinisi told the Claimant that she could have benefitted from peripheral nerve surgery and went as far as to say that even a few years after the injury it was not too late for her to benefit from it. He suggested a referral to one of his colleagues, a peripheral nerve surgeon. When that colleague did not recommend surgery, the Claimant issued a claim against the Defendant under whose care she received the original treatment.

The Claimant alleged that there was a failure to recommend to her a referral to a peripheral nerve surgeon, which she contended amounted to a failure to obtain her informed consent. She alleged that a peripheral nerve surgeon would have offered her the surgery Dr Sinisi told her about and that she would have agreed to it. She relied on the expert evidence of Dr Sinisi who opined that, had she been so referred, she would have benefitted from surgical treatment.

Liability was denied on the basis that no such referral was reasonably indicated and that the same did not form part of the “reasonable alternatives” for the purposes of obtaining her informed consent.

The trial was on the preliminary issue of liability. By the time of the trial the Defendant the seminal case of McCulloch and others v Forth Valley Health Board [2023] UKSC 26, in which David Myhill acted for the successful Respondent health board had been decided by the Supreme Court. McCulloch clarified that the concept of a “reasonable alternative” about which the patient needed to be counselled for the purposes of informed consent was to be determined with reference to the classic Bolam test rather than the concept of materiality from the patient’s perspective as may have been understood from Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 143. The refinement of the relevant test regarding the concept of reasonable alternatives in McCulloch created a hurdle for the Claimant in the present case.

Key Takeaways from Ball

This case is a useful illustration of how McCulloch applies in practice: a reasonable body of medical opinion would not have referred the Claimant to a peripheral nerve surgeon. The Defendant’s clinicians were therefore not in breach of their duty in not making this recommendation to the Claimant.

The case is of interest to legal practitioners on account of the three other important points made by the Judge about the pitfalls facing the parties in claims where witness testimony and expert evidence are critical:

  • The rules about in Pt 32 of the CPR are there for a reason. Practitioners fails to abide by them at their peril. The Claimant’s witness statement was a carbon copy of the Particulars of Claim. The unreconcilable gap between her written evidence and her oral evidence shredded her credibility in the eyes of the Court.
  • Disclosure responsibilities must be taken seriously. The Claimant’s solicitors’ failure to explain to her the requirements of standard disclosure landed her in hot waters and exposed her to allegations of dishonesty although, ultimately, the Court was not satisfied that these allegations were made out on the evidence.
  • The dangers of assuming that an eminent expert would carry the day by virtue of their eminence alone combined with a pre-trial failure to robustly test their expert evidence against the appropriate legal tests (here: McCulloch and Bolam).

(1) Claimant’s evidence

One striking feature of the case extensively commented upon by the Judge was the nature of the Claimant’s evidence: see [93]-[125]. The Judge stressed that the “essential requirements” of Pt 32 of the CPR, including ensuring witnesses prepare their statements thoroughly independently. He referred to the summary of the function of a witness statement contained in the new Practice Direction introduced into the Business & Property Courts last year, PD 57AC. This states that a witness statement should contain the evidence the witness would give “if they were allowed to give oral evidence at trial without having provided the statement”.

The approach taken by the Claimant and her legal team, did not fulfil this basic function.  The Claimant’s first witness statement was “a virtual cut and paste” of the Particulars of Claim, and “patently not in the Claimant’s own words” [95-99]. This unacceptable ‘labour saving device’ adopted by her lawyers when preparing her statement was even more egregious as, at times, they did not even replace the word “Claimant” with the pronoun “I”.

The Claimant’s second witness statement included 16 paragraphs commenting in detail on an expert report and a chronology of relevant events that indicated an “apparently clear and precise recollection”. This contrasted sharply with the Claimant’s initial oral evidence that she did not recall having read the expert report or having it read to her. The Judge observed, “making full allowance for the Claimant’s dyslexia [and] the passage of time”, the disparity between her written and oral evidence was “very striking” [104]. He noted that “her lack of clarity about her own recollection can be summarised by her repeated use of the comment “but don’t quote me” when answering questions.”

Unsurprisingly, the gulf between the Claimant’s written and oral evidence, which the Judge also found to be contradictory and inconsistent, led to a wholesale rejection of her factual evidence as unreliable. Accordingly, she was unable to establish any aspect of her factual causation, which is critical in a consent case. Not only did the Judge find that she would not have agreed to the peripheral surgery she argued she should have had, but that she would not have even requested to be referred, if offered this as an option. This finding would have been fatal to her case even if she established a breach of duty, on which issue she also failed albeit due to the nature of her expert evidence.

This judicial criticism of the Claimant’s written evidence is a reminder that the Courts are increasingly mindful that witness statements should be in the parties’ own words, and situations where witnesses are unfamiliar with the contents of their witness statements are unacceptable. PD 57 AC is one example of this more critical approach.

(2) The importance of the duty of disclosure

The Claimant’s approach to disclosure was at best lackadaisical in that she apparently failed to appreciate (although it may be that she was not told) that all of her applications to the Department of Work and Pensions both immediately before and after the index events were disclosable, along with the Care Allowance records for her partner who was claiming substantial sums in respect of loss of earnings she suffered due to the need to provide the Claimant with care.

A belated discovery of the DWP applications indicated that the Claimant was already significantly disabled before the index events, which was contrary to how she presented herself in her evidence. The discovery also showed that her partner was directly remunerated by the Local Authority as her full-time carer, receiving sums not dissimilar to the earnings from her previous employment, which she was claiming as a loss. This enabled the Defendant to cross-examine both the Claimant and her partner on the basis that they were dishonest.

In submissions, the Claimant argued that the Defendant should be precluded from advancing a case on fundamental dishonesty as the same was not pleaded whereas the Defendant argued that this did not preclude the Court from making a finding that the Claimant acted dishonestly. As liability was disputed, the issue of whether any dishonesty found was “fundamental” within the meaning of section 57 of the Criminal Justice and Courts Act 2015 did yet not arise.

The Judge did not agree with the Claimant that his discretion to make a finding of dishonesty (if appropriate) was fettered, although ultimately, declined to find dishonesty.

In relation to the contention that the Claimant dishonesty misrepresented her pre-accident level of function, the Judge declined to make a finding of dishonesty for procedural reasons. The trial was limited to a preliminary issue of liability and there was no condition and prognosis evidence available against which the Claimant’s assertions could be tested for the purposes of determining whether they satisfied the test in Ivey v Genting Casinos Limited [2018] AC 391 at [74].

Despite the lack of pleadings on dishonesty, the Judge held that there was no such procedural impediment to dealing with the remaining dishonesty allegations which did not turn on medical evidence.

One such issue was whether the Claimant was dishonest in including in the Schedule of Loss a sum of around £100,000 for loss of earnings by her partner when she knew or should have known that her partner was employed by the Local Authority instead to provide her with full time care. The Judge found that in relation to the Schedule of Loss, “the Claimant stated that she did not realise that [her partner’s income] should be referred to in the Schedule and she denied any intention to be dishonest in the presentation of the Schedule.”  The Judge considered it relevant that the Schedule of Loss had been prepared by the Claimant’s lawyers using financial information provided to the Claimant by her partner, whose “evidence was that she had discussed the information required with the Claimant’s legal team and was not aware that she was required to provide detail of her Carer’s Allowance.”  As to the disclosure failings, the Judge considered “the relationship and the information passing between the Claimant and her lawyers” and that the Claimant’s partner “had gone to very significant efforts to obtain disclosure of additional records.” In the circumstances, the Judge’s conclusion was that there was no sufficient evidence to conclude that the Claimant’s failure to disclose her partner’s income was dishonest. There was evidence that the Claimant had relied on her partner for the provision of the relevant information and did not therefore have the requisite dishonest state of mind. As to the Claimant’s partner, the Judge did not consider that it was part of his remit to find dishonesty on her part “particularly when [the Claimant’s partner] was actively involved in obtaining the disclosure documents, albeit on a delayed basis”.

In the circumstances, the significant shortcomings in the disclosure process did not lead to a finding of dishonesty, which would have been disastrous for the Claimant due to a potential disapplication of the qualified one-way costs shifting regime.  However, she came perilously close to that outcome. Had it not been for the involvement of the lawyers in the drafting of the Schedule of Loss and the involvement of the Claimant’s partner whom the Judge did not consider could be found dishonest in the context of a claim to which she was not a party, the outcome could have been very different.

A lesson for practitioners is to ensure that their clients understand, so far as possible, the nature of the loss they are claiming for and the kinds of documents that must be disclosed during the litigation process. A failure to do so leaves the door open to allegations of dishonesty with potentially disastrous consequences.

Another lesson is a reminder that the judicial ability to make a finding of dishonesty is ultimately unfettered and those representing the Claimants should be wary of relying purely on the lack of pleading in this context. Ultimately, what matters is whether the party against whom such allegations are made has had sufficient notice to be able to address them in evidence. In this case, the Claimant prepared her second statement in response to the allegations of dishonesty advanced in correspondence and therefore did have sufficient notice for the Judge to allow cross-examination on this issue and to consider dishonesty.

(3) Test expert’s evidence in conference before trial

Ball is also a reminder to practitioners to thoroughly test the limits of their technical arguments before trial. The eminence of the expert alone will not suffice, particularly, if he does not understand the legal test to which his evidence is relevant.

In respect of breach of duty, the burden of proof is on the Claimant to show, applying Bolam, that no responsible body of medical opinion would have failed to offer her an option of a referral to a peripheral nerve surgeon. Such evidence can only be led from experts in the relevant field. In this case it was for the Orthopaedic Surgery experts to comment on, not the specialist to whom it was alleged the Claimant should have been referred. The judge noted that the Claimant’s expert “did not directly answer questions about whether he considered that there was a reasonable body of orthopaedic opinion that would make or discuss a referral in the Claimant’s circumstances”. Instead, he gave evidence of his own view that making a referral was reasonable: he described referral to a nerve specialist as “a possible management option” and “his preferred route”. The judge recognised that “the emphasis in his evidence was on his personal view rather than on the existence or otherwise of a responsible body of medical opinion”. More embarrassingly, even at the time of the trial, the Claimant’s expert “still did not know whether it would be possible for a [Tourniquet-Related Nerve Injury] causing damage to the femoral nerve to be treated surgically”, which was the key question on the issue of liability. In contrast, the Defendant’s expert gave “cogent” evidence going directly to the Bolam question: a responsible body of medical opinion would not have made or discussed a referral to a nerve specialist. The Claimant failed to satisfy the Bolam test.

The Judge also dismissed a Bolitho argument advanced by the Claimant, which was that a referral involved no risk for the Claimant and therefore there was no logical basis not to offer it.  The Defendant’s expert provided a logical explanation that a referral would not be warranted when there was no identifiable area that would be amenable to surgical decompression and where there was still scope for spontaneous improvement.

An interesting observation was made by the Judge in relation to the argument that a failure to offer a referral amounted to a failure to obtain the Claimant’s informed consent. He reminded himself that the “duty in Montgomery is expressly discussed in terms of consent being required to “available forms of treatment” prior to undergoing any treatment which interfered with the “bodily integrity” of the patient”. He has “not been referred to authority that addresses whether the Montgomery duty applies in the context of a referral which does not in itself involve any form of treatment, albeit that it might later lead to treatment being proposed which would clearly be subject to the Montgomery duty”. The Judge concluded, “For my part, and without the benefit of any detailed legal argument on this point, I would consider that the Montgomery duty does not apply to referrals which do not in themselves involve any treatment and accordingly do not give rise to any treatment risks or benefits”. If he was wrong about this conclusion, he held that, given that McCulloch confirmed that Bolam applied to the determination of the concept of “reasonable alternatives”, his determination on it disposed of the Claimant’s case on consent.

The judgment serves as a reminder to practitioners not to wait until cross-examination to discover the limits of their own expert’s evidence.

A point to consider in future cases is whether the doctrine of informed consent (developed in the context of a patient’s right to their bodily integrity) applies to cases whether the “reasonable alternative” is a possibility of a referral.

Article by Nadia Whittaker and Benn Sheridan (currently taking pupillage).


Related People

Portfolio Builder


Select the practice areas that you would like to download or add to the portfolio

Download Add to portfolio
Portfolio close
Title Type CV Email

Remove All