Woman’s appeal to amend £15m medical negligence claim after proof refused

A judge had refused to allow a minute of amendment after proof but before issuing his judgment on the merits of the negligence action, and the Inner House of the Court of Session upheld the decision of the Lord Ordinary, who concluded that the pursuer had “ample opportunity to state and prove her claim”.

The Lord President, Lord Carloway, sitting with Lord Brodie and Lord Glennie, heard that the pursuer and reclaimer Jill Clark, 24, sued the defenders Greater Glasgow Health Board for £15 million, claiming that her mother’s labour was “negligently mismanaged” by the midwives and doctors at the Queen Mother’s Maternity Hospital, Yorkhill.

At the proof, Lord Stewart was told that the pursuer’s mother’s womb ruptured at 03.45 and she was delivered by emergency caesarean section at 04.10 on 2 March 1992, but she suffered a “catastrophic hypoxic brain injury” and was left “completely incapable” with no power of speech, though her intellectual functioning, vision and hearing were “largely spared”.

The judge heard evidence and submissions over 21 days between January and February 2015 before taking the case under advisement and eventually issuing his decision assoilzing the defenders in February 2016.

However, in March 2015, after the proof had closed but in advance of the Lord Ordinary’s decision on the merits, the judge’s clerk was contacted by the pursuer’s representatives, who said that Lord Stewart should delay writing up the judgment because of the UK Supreme Court’s decision in Montgomery v Lanarkshire Health Board, which was issued the day before.

A motion and proposed minute of amendment for a new “risk disclosure” case based on the decision in Montgomery, intimated to the defenders on 19 March 2015, stated that the obstetricians attending on the pursuer’s mother had a duty to disclose the risks of vaginal birth after caesarean section; that the obstetricians failed to disclose the risks; that if the obstetricians had given proper advice she would have elected to have a repeat caesarean section; and that there would then have been no birth brain injury.

But in an interlocutor dated 18 December 2015, the Lord Ordinary refused to allow the minute to be received, as he considered that the proposed new case was a “radical change of front” which contradicted or undermined the case which was then at avizandum, adding that the pursuer had ample opportunity to state and prove her claim and that if amendment were to be allowed there would be “re-litigation of the case”, which “conflicts with the principle of finality”.

The pursuer was granted leave to reclaim that interlocutor, but did not do so, and was now asking the appeal court to allow a challenge to that interlocutor.

However, the appeal judges refused the reclaiming motion.

Delivering the opinion of the court, the Lord President said: “As a generality, so far as the procedural steps in the Outer House are concerned, this court will not normally review an interlocutor in which parties can be seen to have, in essence, acquiesced. In this case, the pursuer’s motion to amend had been refused by the Lord Ordinary.

“It was not reclaimed despite the fact that leave had been given to do so. Had it been reclaimed, the matter would have been before this court and no further steps could have been taken in the Outer House until this court had ruled on the matter.

“No final interlocutor could have been pronounced while the cause was depending in the Inner House. Any review of a decision to refuse to allow a Minute of Amendment to be received could have been heard quickly on the Single Bills. That is not what was done.

“Instead, for whatever reason, a conscious decision was taken not to reclaim. In these circumstances, the Lord Ordinary proceeded to issue his decision on the merits on the basis of the existing pleadings and proof. That was some six weeks after the decision to refuse receipt of the Minute.

“In these circumstances, the pursuer must be taken, looking at the matter objectively, to have acquiesced in the interlocutor refusing the amendment and, in effect, permitting the Lord Ordinary to proceed to judgment. Put another way, the interlocutor refusing to allow the Minute to be received had become, by inference, final. On this basis alone, this reclaiming motion must be refused.”

He added: “If this court were to hold that the Lord Ordinary had erred in refusing to receive the Minute and the pleadings were amended, it would be for this court to hear any additional proof…It would then have to re-assess the case on the totality of evidence, including the testimony heard by the Lord Ordinary.

“Whilst this may have to be done in certain circumstances, such as where evidence has been wrongly excluded in the Outer House or new evidence or facts have come to light, the exercise is not an easy one. Although the overriding consideration remains the interests of justice, finality is an important element of those interests.”

The judges also observed that the court “must be very slow indeed to reopen a proof in circumstances in which not only has the proof been concluded when both parties to the proof were legally represented, but the court has issued its judgment determining all the matters ventilated at the proof”.

In any event, the court was “unable to find fault in the Lord Ordinary’s exercise of his discretion”.

Lord Carloway said: “He directed himself to the correct legal test of the interests of justice, took into account all the relevant factors, did not take into account any irrelevant factors and reached a sound decision on the material presented to him. The reclaiming motion must fail on this basis also.

“Even if the court had identified an error in the Lord Ordinary’s decision, the court would, in exercising its own discretion, have reached the same result, especially as the Lord Ordinary’s decision on the merits has now been issued and, on the material before him at proof, not the subject of criticism.

“The amendment is tendered very late, with no adequate reason being advanced for doing so. Its receipt would prompt further delay in a case which has already gone on for far too long. It would cause the defenders significant prejudice, even if, on the other side of the scales, the pursuer’s case must hereby conclude.”