The test of ‘significant developments in the litigation’ that justifies amending a budget require that the case “has gone off in a different direction in some manner or other, that it has taken a turn that was not reasonably foreseeable or envisaged at the time of the original exercise”, a leading district judge has ruled.
District Judge Hovington, until recently a member of the rule committee, made the statement in refusing a clinical negligence claimant permission to amend, saying the fact the expert evidence “tells us something that we had not totally anticipated” was not in itself enough to pass that test.
“Every case evolves,” he said in Warner v The Pennine Acute Hospital NHS Trust. “Evidence comes forward that is not available at the time of the original case management conference but the whole essence of budgeting is to endeavour to anticipate that and set a framework within which the case is then to be conducted.”
The claimant was seeking to amend her £277,000 budget because her diagnosis had worsened, leading to an increase in the value of the claim, and an application for periodical payments was to be made as a result.
But the judge said: “At its very simplest level, and I appreciate I am over-simplifying, this was a clinical negligence claim against a doctor in a hospital by a lady who had suffered very, very serious and debilitating injury where there was a perceived risk of future deterioration.
“I appreciate that the precise nature and extent of that deterioration may not have been entirely clear in October 2015 [when he approved the budget] and that is why I gave permission for further experts; but what has changed in terms of the essence of the case?
“I still have a lady who is suffering serious and debilitating symptoms from her injuries and with the risk of future deterioration. I made provision in the directions for the parties to address the question of periodical payments. To that extent, I am not sure that that becoming now a significant feature in the case can properly be characterised as a significant development. For those reasons, the application to amend the budget is refused.”
DJ Hovington said the claimant could still spend the extra money but, in the event she won and the matter proceeded to detailed assessment, the onus would be on her to show it was reasonable and proportionate in all the circumstances to exceed the budget.
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