KB-2023-001134 - [2025] EWHC 2121 (KB)

Procedural history

Liability reports were originally obtained on behalf of the Claimant from two experts in cardiothoracic surgery in September 2022. In a report dated 10 September 2022 Professor Daniel Kennan, Professor of Cardiothoracic Surgery, expressed his opinion that there had been various breaches of duty on the part of the Defendant. A “screening report” dated 18 September 2022 and an Addendum report dated 24 September 2022, were also obtained on behalf of the Claimant from a Mr Jon Anderson, a senior cardiothoracic surgeon. Mr Anderson expressed his opinion, in both reports, that there had been no breach of duty.

Thereafter, the Claim Form was issued on 3 March 2023. The original Particulars of Claim set out allegations of negligence which were largely consistent with the report of Professor Kennan.

Permission was then sought on behalf of the Claimant to serve an Amended Particulars of Claim, which permission was granted at a case management conference of 19 June 2024, on condition that the Claimant disclosed copies of the reports of both Mr Jon Anderson and Professor Keenan to the Defendant. The Claimant was also given permission to rely on an expert report in cardiothoracic surgery from Mr John Yap, no permission apparently being sought in respect of Professor Keenan. The Amended Particulars of Claim struck through various allegations of negligence, including an allegation that the aorta was severed negligently, an allegation that the Claimant should have been established on cardiopulmonary bypass prior to the sternum being opened, and an allegation that a different surgical approach should have been utilised.

Witness statements were served in January 2025, including a statement from the surgeon, Mr Nassar. Expert reports were exchanged in March 2025. The Defendant then applied, on 20 May 2025, to serve a supplementary statement from Mr Nassar which, it was said, was necessary to address certain issues raised by Mr Yap’s report, including in respect of the surgical technique used by Mr Nassar to open the sternum. That further statement from Mr Nassar prompted the Claimant’s legal team to indicate that they would apply to amend the Amended Particulars of Claim, including by re-instating an allegation that the aorta was injured as a result of negligence.

Mr Yap and the expert instructed by the Defendant, Mr Roberts, were able to meet and agree a joint statement dated 26 May 2025 which encompassed discussion of the proposed amendments to the allegations of negligence indicated by the Claimant.

A number of applications were therefore live at the start of the trial, including (a) the Defendant’s application to serve Mr Nassar’s second witness statement, (b) the Claimant’s application for permission to serve a Re-Amended Particulars of Claim, and (c) the Defendant’s consequential request for permission to serve a Re-Amended Defence. On the second day of trial the Defendant applied to serve a third witness statement from Mr Nassar responding to the new allegations of negligence. Those matters were very largely dealt with by consent, save in respect of cost consequences.

Another issue which was the subject of applications at the start of trial concerned the evidence of Mr Amir Mohamed, senior registrar in cardiothoracic surgery, who had assisted Mr Nassar in the relevant surgery.

The Defendant had served a witness statement from Mr Mohamed in January 2025, but Mr Mohamed had, by that stage, moved to Kuwait. The Defendant attempted to obtain the permission of the relevant authorities in Kuwait to enable Mr Mohamed to give evidence from Kuwait by video-link, but no substantive response was received from those authorities. By the time of trial Mr Mohamed no longer had a visa permitting entry to the UK. On 13 June 2025, one working day before trial, the Defendant’s solicitors served an application seeking permission to adduce Mr Mohamed’s statement as hearsay evidence under s.2 of the Civil Evidence Act 1995.

In response, the Claimant applied at the start of the trial to call Mr Mohamed to give oral evidence pursuant to CPR 33.4. The Defendant’s solicitors confirmed that Mr Mohamed was willing to travel to give evidence either by video-link from the USA or, if a visa could be obtained, by attending trial in the UK. As a matter of practicality, it was agreed that all other witnesses would give evidence, including the experts, so as not to delay matters and then Mr Mohamed’s evidence could be taken, out of turn, once the logistical issues had been overcome. In the event, Mr Elgot, counsel for the Claimant, withdrew the application to call Mr Mohamed once all the other evidence had been adduced. I therefore have had regard to Mr Mohamed’s witness statement as hearsay evidence pursuant to the Civil Evidence Act 1995.

It is unfortunate that the various procedural issues had not been raised and resolved well in advance of trial. However, I am grateful to both legal teams and the parties for their pragmatic and co-operative efforts to deal with the issues which arose by agreement insofar as possible. I am also grateful to both experts for their constructive approach in dealing with the emerging issues and evidence.