Before:

THE MASTER OF THE ROLLS

MR I PRINGLE (Instructed by Messrs Sansbury Hill, Bristol, S1 5HH) appeared on behalf of the Applicant.

The Respondent did not attend and was not represented.

(As approved by the Court)

©Crown Copyright

	LORD WOOLF, MR:
1.	This is an application for permission to appeal an order made by Judge Overend in the Plymouth County Court on 22 April 1999. It has some general significance because it is a case on which this court has been asked to take into account, as far as I am aware for the first time, the new Civil Procedure Rules. When the matter was before the judge those rules had not come into force but, clearly, they will be in force and apply at the hearing of the case which was fixed by Judge Overend for 15 July next. The claimant is not present. Very properly he took the view that, as he was being supported by legal aid, it would not be appropriate for him to be represented at the hearing.
2.	This case concerns a claim for personal injuries alleged to have been incurred in the course of the claimant's employment. The nature of the employment and the detail as to the injuries are of no importance for present purposes. Generally, the claimant was putting forward a case that as a result of his employment he suffered a repetitive strain injury. In support of his contention that it was due to his employment, he relied on an informal report by his general practitioner and a report by a consultant orthopaedic surgeon, Mr Osborne. The claimant says that, as a consequence of his injury, he was forced to cease his employment in 1993. I understand that he has since found a different form of employment.
3.	On 16 May 1966 shortly before the expiration of the limitation period, the claimant initiated proceedings on 16 May 1996. The solicitors for the defendant were changed at some stage. In January 1997 the case was reviewed by the new solicitors. they considered it was appropriate in the circumstances to accept that there was a foreseeable risk of injury as a result of the claimant's employment and that the issues in the proceedings should be limited to that of causation and to the amount of loss. Those solicitors therefore wrote to that effect to the claimant's solicitors.
4.	The solicitors instructed a consultant orthopaedic surgeon, Mr Dunkerley, who examined the claimant at beginning of 1996. In his report he did not accept the suggestion that the injury, such as it was, of which the claimant was complaining was attributable to his employment. At a later stage the defendants decided to not limit the medical evidence to that of the orthopaedic surgeon, but also to instruct a rheumatologist. A Dr Calin was instructed. He, apparently, is a well-known consultant who regularly gives evidence on medico-legal issues.
5.	Dr Calin prepared a full report reviewing the medical records and the earlier reports relating to the claimant. He also had the opportunity, although this would not be of great importance having regard to the period which had elapsed, of examining the claimant. In general terms he supported the view of Mr Dunkerley, the defendants' orthopaedic surgeon, that the claimant's injuries were not attributable to the claimant's employment.
6.	Some time in October 1998 there was a directions hearing where final directions were given, including that the hearing should not be before 2 July of this year for the convenience of the claimant's orthopaedic surgeon. The parties and the court were not able to determine the date of the hearing without the attendance of the parties before the judge. Accordingly, on 22 April 1999 the hearing in relation to which this application is made, took place before His Honour Judge Overend at the Plymouth County Court.
7.	The defendants were represented by a young member of the Bar, not Mr Pringle who has appeared before us today. She did not have a member of the staff of her instructing solicitors in attendance. The judge was faced with the problem of fixing a date for hearing. It was estimated that the case would last two days. It is not the type of case which is particularly easy to list at the Plymouth County Court because there are only two courts. The judge's task was made more difficult because the position of the claimant's consultant was that in the foreseeable future there was no date on which he could be available. However, it was subsequently intimated to the judge that if he fixed a date the consultant would make sure he would be there.
8.	As far as the defendants were concerned, they were adopting a more constructive approach. That counsel had been supplied with the dates upon which the defendants' two doctors were not available. The first date that the judge was minded to fix was 29 June 1999, which was some time after the date on which the parties were before him, namely 22 April. Counsel appearing for the claimant, however, pointed out that case was not to be listed until after 1 July 1999 as a result of the previous directions. The judge was told that that was because Mr Osborne was fully booked until the end of July.
9.	Faced with that position the judge said:
	"Right, 15 July."
	Counsel for the defendants said:
	"Neither Dr Calin nor Mr Dunkerley have availability on those dates. We consulted my learned friend earlier, the week not 5th July but the 6th, 7th, 8th and 9th July are available for all the medical experts. I do not know if those are the dates available to the court."
	The judge then said:
	"No".
	By which he meant that those dates were not available to the court. He continued:
	"Why can't Dr Calin turn up on 15th July?"
	The response he received was that:
	"He has listed those dates as unavailable between 12th and 16th July."
	The judge said:
	"Why is he unavailable on 15th July?"
	Counsel replied:
	"I have no instructions as to why, it is simply a list of unavailable dates."
	The judge then responded:
	"How am I supposed to deal with the matter then? Is he subpoenaed somewhere else? Does he have to be somewhere else all the time? Is he able to give evidence by video link?"
10.	Counsel replied that she had no idea. The only instructions she had was that he is not available on Wednesday mornings when he has pre-booked clinics. Wednesday mornings did not affect 15 July, which is a Thursday. The judge was clearly exasperated by this. In vigorous terms he emphasised that if the consultant was going to continue, as the judge put it, "on the medico-legal table", he has to make himself available. The judge then asked about Mr Dunkerley. Counsel said:
	"Mr Dunkerley simply has the 12th to the 29th inclusive unavailable."
11.	Counsel went on to indicate that she had no further details. The judge then made a remark, which I accept was inappropriate and unfortunate, although in its context I do not believe too much importance should be attached to it. He said:
	"I can do two things. I can fix 15th July or I can adjourn this matter so that you can make a 'phone call or 'phone calls and then I'll fix 15th July. Which would you prefer?"
	To which counsel replied:
	"You might as well fix 15th July."
	The judge went on to deal with a meeting between the experts. He said:
	"Experts to meet; by when is a realistic date? There may have to be a three-way telephone call. Shall we say by the beginning of June, by 2 June, and produce a joint reports of disagreement by 16 June."
	No one dissented from that suggestion and the judge so ordered.
12.	Having made that order, the defendants' solicitors promptly tried to find out why Mr Dunkerley and Dr Calin had given the indication that they would be unavailable on those dates. The solicitor knew, what the judge did not know, that the dates of unavailability which had been given (and this does not appear to have been conveyed to counsel) were given because they were dates when the doctors would either be out of the country or be giving evidence at another court. It was found that Mr Dunkerley was going to be on holiday at that time and that Dr Calin had been subpoenaed to attend the Wandsworth County Court on the very dates fixed for this hearing, 15 and 16 July.
13.	Having obtained that information, the solicitor acting on behalf of the defendants communicated with court indicating that they would like to have permission to appeal with, if necessary, up to 30 minutes set aside for the application. The judge, who had no more information than had previously been available to him, refused permission to appeal indicating that his order was a pragmatic order in the circumstances and did not list the matter for hearing. As a consequence of that in due course an application was made to this court for permission to appeal.
14.	The approach which was being adopted by the lawyers before the judge was a wholly inappropriate. They were adopting what in the past has been an approach which has been too frequently adopted. They were regarding it as the responsibility of the court to defer the hearing to a date which could, with convenience, be met by the doctors. It was apparently thought that all that was required was to tell the court the dates that the doctors had indicated would not be convenient and the court would thereupon find a date which would allow the case to be heard to meet their convenience.
15.	If it was ever appropriate to adopt that sort of approach to listing cases, it is certainly no longer appropriate. That approach explains why a great many personal injury cases up and down the country have been delayed inordinately, inconsistent with the due administration of justice. Courts cannot perform their duty of conducting cases justly if the preferences for hearing dates of doctors are always given priority over all other considerations. The right course for the parties to have adopted in this case was to attempt to reach agreement themselves as to the dates which could be met, to have consulted with court, and with the court's cooperation to find a date within a reasonable time for the hearing. In this case the parties apparently from October 1998 could have taken that course, but they left the matter until April 1999 and, even when the court fixed a date as far ahead as 15 July of the same year, they say that that date is not practical.
16.	The judge indicated that there should be a meeting between the doctors for the claimant and the doctors for the defendants. Contrary to the order made by the judge, that meeting has not yet taken place. Mr Pringle says that he cannot be optimistic that the medical issues will be agreed in this case as a result of the meeting which is now due to take place shortly. I fully accept that he may be right on that. That does not excuse the parties for not having arranged the meeting earlier. It is said that no date for a meeting could be arranged. I do not for one moment accept that is so, particular having regard to the sensible suggestion made by the judge about the use of the telephone for that purpose.
17.	Again the question of videoing evidence has not been explored by the defendants. Instead they have proceeded with this appeal. Mr Pringle says expense would have been incurred by having to take the evidence by video. If the evidence is essential then that expense is to be much preferred to vacating the date of the trial and incurring the greater expense of seeking to appeal to have that date vacated.
18.	As far as Dr Calin is concerned, he undoubtedly is required to attend the Wandsworth County Court in answer to the subpoena which has been served upon him. But if the conflict of commitments are explained to the Wandsworth County Court, I have no doubt that the Wandsworth County Court, so far as practical, will cooperate to ensure that his evidence is given at a time which would enable him also to give evidence at the Plymouth County Court.
19.	So far as Mr Dunkerley is concerned, no request was made to him to consider whether his holiday which he has booked over the period in question could be changed. I accept that at this stage it would be difficult for him to change his holiday, but whether that would also have applied in April when the order was made, I do not know. It seems to me, again, that an effort should have been made at least to have asked him to change that date.
20.	I accept that in this case it would be preferable for the defendants to be able to call their doctors. However, I am far from satisfied that this case cannot be tried justly without that happening. The reports of Mr Dunkerley and Dr Calin would have to be placed before the judge if they cannot give evidence orally. So far as the claimant's doctor, Mr Osborne, is concerned, the defendants would like him to be present, as he is now able to be having made himself available, so that he can be cross-examined. If the reports of Dr Calin and Mr Dunkerley are put before the court without their being present they cannot be cross-examined. However, this is very much the sort of case where a judge could properly form a judgment as to the right result without those doctors being called, if he had those reports before him. In addition, because of the course they have taken and further water which has flowed under the bridge, it would be much more difficult for the defendants to obtain another doctor, but I do not accept that that course is beyond the scope of possibilities. That doctor could have all the records available and, as neither of the defendants' doctors saw the claimant within a short period of the matters of which he complains, the defendants will not be prejudiced because of that doctor's inability to examine the claimant until now.
21.	There are ways that this case can be justly disposed of. However, Mr Pringle relies very strongly on the terms of the Civil Procedure Rules and in particular the overriding objective. Part 1 rule 1 requires that the court should deal with the case to ensure that the parties are on an equal footing. Mr Pringle submits that they would not be on an equal footing if this date of 15 July was adhered to. He also submits, correctly, that the court is under an obligation to deal with the case justly. I have indicated that in my judgment this case could be dealt with justly. Mr Pringle recognises that it is also the responsibility of the court to ensure that it deals with cases expeditiously as well as fairly, and that it has to take into account the allocation of the appropriate share of the court's resources to any particular case.
22.	Mr Pringle draws attention to the fact that the in relation to a case on the multi track, of which this would be one, that under part 39.4:
	"When the Court sets a timetable for a trial....it will do so in consultation with the parties."
23.	He submits that the court did not have that consultation in this case, relying on the remark of the judge to which I have drawn particular attention.
24.	However the submissions of Mr Pringle totally fail to recognise the spirit behind Part 1 of the Rules which is that the parties should help the court to further the overriding objective as well as the court having the obligations to which I have made reference. In this case, unwittingly, the parties had fallen down entirely on their responsibilities to the court. The present position in which the defendants find themselves is attributable to their delay in seeking to fix a date and then failing to place before the court the true nature of the problems with regard to Dr Calin and their consultant surgeon. Over six years have elapsed since these proceedings could have been commenced. There has already been two much delay on the part of both parties.
25.	If the matter had been explained to the judge, as it should have been, as to the precise position, then he would obviously have given that matter careful consideration. It was clear that he had the possibility of a subpoena being in existence as a problem in mind, but he was given no information to confirm that there was a subpoena and that Dr Calin was required to be else where.
26.	It is most important that there should be cooperation between all those involved if the changes in the way cases such as this are disposed of are to be achieved. The court must provide the parties with information which they reasonably require in order to come before the court and make sensible arrangements. The parties must ensure that, where agreement is not possible and the matter has to be adjudicated upon by the court, they make all the relevant information available to the court.
27.	If cases are going to be disposed of within a reasonable time, it is very important that in cases where doctors are involved as much notice as possible is given for the date of hearing. However, if the court cooperates with the parties by fixing an early date, it is essential that it is appreciated that, whereas the courts will take account of the important commitments of medical men, they cannot always meet those commitments in a way which will be satisfactory from the doctor's point of view. Ways have to be found to meet the obvious requirement that cases should be heard expeditiously. This requires cooperation between the parties, members of the medical profession and the courts.
28.	I hope that the message will be understood by both the medical profession and the legal profession, is that it is essential that if parties want cases to be fixed for hearing in accordance with the dates which meet their convenience, those dates should be fixed as early as possible. The parties cannot always expect the courts to meet their convenience. If they hold themselves out as practising in the medico-legal field doctors must be prepared to arrange their affairs to meet the commitments of the courts where this is practical. If there is no agreement as to the dates which are acceptable to the court, the lawyers for the parties must be in a position to give the reasons why certain dates are not convenient to doctors.
29.	I would refuse this application bearing in mind that I am confident that His Honour Judge Overend at the hearing will make sure that the defendants are not prejudiced if in fact either Mr Dunkerley or Dr Calin are unable to attend and no other doctor appears in their place.
30.	I would dismiss the application.
	LORD JUSTICE CLARKE:
31.	I agree. As I see it, it is essential that parties should cooperate with regarding the fixing of a date for trial. As CPR 39.4 expressly provides, there should be consultation between the court and the parties before a date is fixed. To that end it is plainly of the greatest importance that the court should be given all the information in the possession of each party which is relevant to the question when the trial should take place.
32.	We have been told that it is the practice of the defendant's solicitors to ask doctors whom they wish to call at the trial on what dates they would be unavailable to attend as a result only of being abroad or of being committed to give evidence elsewhere. That seems to me to be a sensible approach but, unfortunately, they did not tell counsel who appeared before the judge that the reason why their medical witnesses were unavailable was one or other of those reasons. As a result, counsel was unable to tell the judge why the defendants' witnesses would be unavailable on particular dates. That is clear from the exchange between the judge and counsel which has been quoted by my Lord, the Master of the Rolls. It appears to me that if the judge had been told that the reason why the doctors were not available on 15 July was either that they were on holiday or that they were committed to hearings elsewhere, he would have approached the matter differently. Moreover, I do not think that Mr Pringle argues to the contrary.
33.	In these circumstances, subject to one possible point, I do not think that the judge can fairly be criticised for fixing 15 July 1999 for the trial of this action. That possible point arises out of this exchange, to which my Lord has referred:
	"JUDGE OVEREND: I can do two things. I can fix 15th July or I can adjourn this matter so that you can make a 'phone call or 'phone calls then I'll fix 15th July. Which would you prefer?    COUNSEL: You might as well fix 15th July."
	I agree with my Lord that it is most unfortunate that the judge put the matter in that way, but his words must be read in their context. The judge no doubt thought that a telephone call would have made no difference because it would have shown that the doctors were unavailable due to other professional commitments. However he gave counsel an opportunity to make the call. In my judgment it is likely that, if such a call had been made and the true position established, the judge would have reached a different conclusion. I would not criticise counsel for not making the call because she thought that the reasons for unavailability were simply other professional commitments. If she had been properly and fully instructed, she would no doubt have approached the matter differently.
34.	The question what date should be fixed was essentially a matter within the discretion of the judge. In my judgment, the defendant has no reasonable prospect of persuading this court that the judge erred in principle or was plainly wrong in fixing the date of 15 July 1999 on the information available to him.
35.	I would only add that the essential requirement of any trial is that it should be fair and such as to yield a just result. I am not persuaded that it is not possible to have a fair trial on 15 July. There was no evidence before the judge, as is not uncommon in applications of this kind, that we have seen the reports which have been exchanged between the parties. If it proves not to be possible to call one or both of the doctors to give oral evidence on behalf of the defendants, like my Lord, I would expect the court to admit their reports as part of the evidence in the case. There is a plethora of material in those reports and indeed in the documents referred to in them. In these circumstances, even if it proves impossible for the defendant to call oral evidence at the trial, I am confident that it would be possible for the judge to try the matter fairly on 15 July. If it should appear that for some reason that is not so, he or she retains the power to adjourn the trial as appropriate.
36.	For these reasons, together with those given by my Lord, I would dismiss this application.
	LORD JUSTICE MANCE:
37.	I agree. In his clear submissions, Mr Pringle, who did not appear below, said that the key to the fixing of a date is consultation. That is supported by the new rules, part 39.4. But consultation means contact, cooperation and information.
38.	In this case, very little, if anything, seems to have occurred between 13 October 1998, when there was a pre-trial review at which a date not before the 1 July 1999 was fixed, and 16 April 1999 when the court of its own motion called the matter on for the fixing of a date on 22 April 1999. On that day the judge was not given information about the holiday commitments of Mr Dunkerley and a witness summons for the Wandsworth County Court of Dr Calin, which is now put before us as critical. Counsel on that date had not been given information about the precise significance of "unavailability" in the list of unavailable dates and so she was not able to explain that significance to the judge. That is the underlying fault as Mr Pringle has accepted before us today. In those circumstances, Counsel did not take up the judge's reference to seeking further information.
39.	I agree with both my Lords' comments about the regrettably over vigorous observation in that respect by Judge Overend, but I also agree that it was not significant. In those circumstances I see no reason to fault the judge's decision reached on the material before him. It will be for him to consider how matters should proceed.
40.	The defendants, through Mr Pringle, discount any suggestion that they could at this late state go to alternative experts, although the position, if they had sought to do so in April, would not be so clear. If they cannot do so now, they will have to give urgent attention as to how the evidence of existing experts can be put before the court. Even now there may be a possibility of a pre-recorded video. Failing all else, as my Lord, the Master of the Rolls, has said the existing experts' evidence is in writing. Steps may even be taken now leading to their experts appearing in person on the relevant dates. It will be open to them to ask the judge for such further directions as may assist in that regard.
41.	Order: Application dismissed with costs.