Summary judgment can be entered by a Court for one party against another at an early stage of the proceedings where the Court considers that either the claimant or the defendant has no real prospect of succeeding or successfully defending the claim and there is no other compelling reason why the claim should proceed to a full trial. In the case of Barry Hewes v West Hertfordshire Hospitals NHS Trust and Ors [2018] EWHC 2715 (QB) the third Defendant, Dr Tanna, had obtained summary judgment against the claimant so that the claim only continued against the other two Defendants.

Briefly, the claimant was the victim of Cauda Equina Syndrome (CES), a serious clinical condition which is a well recognised emergency, the earlier that decompression surgery can be undertaken, the better the outcome. The Claimants case is that there was an unreasonable delay in getting him to the operating table and had he been operated on earlier he would not have been left with serious bowel and bladder dysfunction. The claimant sued the hospital trust that operated on him and the ambulance service and Dr Tanna, who was a GP providing an out of hours service for the claimants GP practice. As far as the claim against Dr Tanna was concerned it was alleged that Dr Tanna was in breach of his duty in not calling a specialist orthopaedic on-call SHO so that urgent treatment could be arranged rather than the Claimant being told to go Watford A & E. Dr Tanna’s defence was that his actions were “in accordance with a responsible body of medical practitioners.”

Dr Tanna applied for summary judgment to have the claim against him dismissed on the grounds that the allegation of breach of duty had no real prospect of success. The application was made after Directions had been given but before any expert or lay evidence had been exchanged. The application was made at that stage on the basis that the facts were sufficiently clear and it would save costs. The Claimants medical expert provided a short letter in opposition to the application stating “I have read the Statement of Case and I can confirm that, from my perspective as a GP I continue to remain supportive of the case set out in the Particulars of Claim and notwithstanding the Defences”. The High Court Master was not persuaded with the Claimants response to the application and agreed to the Doctor’s request for summary judgment to remove him from the claim.

The Claimant Mr Hewes appealed and after a High Court hearing which took place on 9th October 2018 (judgment 18th October 2018) the appeal was allowed so that the Claimant could continue with the claim against the Doctor as well as the other two Defendants. At the appeal hearing the Judge was told that there has been no reported decision of a successful summary judgment application in a clinical negligence case. The application was premature in this case because it had been made and heard before evidence had been exchanged. Although the Claimant had not served detailed evidence from his expert in response to the Application this was not unreasonable in the circumstances. The High Court Judge agreed and found that the decision to dismiss the claim against the third Defendant Doctor could not stand because there was untested expert evidence, there was not a proper regard to the evidence that would reasonably be available at trial and it was not right to conduct a mini trial of liability on the basis of limited expert evidence.

The Claimant’s claim therefore continues against all three medical Defendants.