Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) (12th May 2016)

This case was scheduled for trial shortly prior to which the Defendants applied at the 11th hour to introduce surveillance evidence into the proceedings.

Their application to admit the evidence was due to be returnable on the first day of the quantum trial before the trial judge.

The Judge hearing the application for permission granted it and adjourned the trial. The punitive deterrent in the case was costs. Those of the application were ordered to be paid by the Defendants on the indemnity basis.

The Judge had to undertake a balancing exercise to ensure that any prejudice was mitigated as much as possible. In doing so, he concluded that the evidence (arguably crucial) should be allowed in. To exclude it whilst tempting would have been unduly prejudicial to the Defendant. That seems to be a fair and just conclusion.

However would the same conclusion have been reached if the Claimant sought to rely on what it deemed to be some important last minute evidence?

Further, could the Claimant withstand the heavy costs penalty if he was allowed to introduce late evidence

Both of the above can almost certainly be answered in the negative.

Therefore, what has happened to CPR 1.1 2(a) (the equal footing rule)? Why is it one rule for Defendants and another for Claimants?

The Defendant authority in this case was burdened with a substantial costs order because of it’s failings. This, despite their best efforts to have costs reserved. How will this affect them? Not much some might legitimately argue. No doubt the liability will just be chalked up on their stats in support of their contention that costs are out of hand and they are running out of funds as a result of greedy, litigious Claimants and their ambulance chasing lawyers (forgetting that actually these costs were wasted as a result of their own poor conduct).

Guy Platt-Higgins