The Court of Appeal has overturned a ruling that a surgeon was negligent and has ordered a retrial because the judge gave no reasons for her finding.
The claim, Glicksman v Redbridge trust, was brought by a woman operated on for a suspected hernia in 1994. No hernia was found but the operation involved entering the abdominal wall. Two years later she had another hernia operation. She alleged the problem arose from the way the first operation had been carried out.
The judge ruled that the surgeon had been negligent but that the patient was already susceptible to developing hernias and the operation had exacerbated an existing weakness. She was awarded just over£4,000. The Appeal Court criticised the judge for giving no reasons for her finding and failing to give a reasoned rebuttal of any of the expert evidence.
The case 'cried out for reasons', said Master of the Rolls Lord Phillips, and the court was concerned about a finding of professional negligence in the absence of reasons. A new trial was ordered, further increasing costs that must already exceed the size of the damages.
But will the Lord Chancellor's ex gratia compensation scheme pay for any extra costs? do not bank on it: the Appeal Court recently threw out a claim for an extra£1m costs racked up by associations representing pharmacists trying to stop the abolition of resale price maintenance for over-the-counter medicines.
One of the two lay experts sitting with the High Court judge in the competition court was found to have a conflict of interest and the case had to start again.
The associations argued they had not had a fair trial as guaranteed by article 6 of the European Convention on Human Rights and that the Lord Chancellor, who was responsible for ensuring cases were heard by competent and independent judges, should bear the extra£1m costs. The court gave them short shrift.