[2025] EWHC 2025 (KB)

The defendant is clearly an extremely experienced practitioner with many years of experience in diagnosing and treating haemorrhoids and performing ligasure haemorrhoidectomies. His record keeping in this case was not thorough or detailed, as he did not fully record the details of the results of his examinations of the claimant or the details of his discussions with her. Although he had some recollection of the claimant, in large part his evidence was based on what he believes he would have done or must have done based on the contemporaneous documents and his usual practice rather than any actual recollection of the claimant herself. In consequence, I have had regard to HHJ Cotter’s (as he then was) warning in Pomphrey at [32] of the need to keep in mind that “I would have” is not as persuasive as “I did”, particularly when the person concerned is being criticised.

I find the defendant to be an honest witness but given his limited recollection of the claimant, I have (as with the claimant), paid particular attention to the relevant contemporaneous documents, objective facts and overall probabilities to resolve conflicts of evidence between the claimant and the defendant and in particular to the evidence of Professor Phillips. In so doing, I have considered the reliability of the relevant documents, observing that the starting point is that medical records ordinarily fall into the category of “reliable documents” and are therefore worthy of careful consideration. However, I have judged the contemporaneous documents alongside each other and the other evidence in the case and the opinions of the experts, in particular Professor Phillips. (as per Synclair at [10] – [12]).