Herrington v O'Boyle & Ors [2026] EWHC 1800 (KB)

Case No KB-2023-004149

[2026] EWHC 1800 (KB)

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

Venue Royal Courts of Justice

Date Wednesday, 10 June 2026

Strand

London WC2A 2LL

Before

MR JUSTICE SWEETING

Between

HERRINGTONClaimant

O'BOYLE & OTHERSDefendant

MR J KENDALL appeared for Claimant

MS S CRAPPER appeared for Second Defendant

JUDGMENT

Approved Judgment

Digital Transcription by Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

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[1]MR JUSTICE SWEETING: This claim arises out of a road traffic accident on 1 November 2020 on the M1 Northbound. The claimant's vehicle came to a stop on the carriageway and was struck from behind by a vehicle driven by the first defendant. Liability is admitted and the issues in the case are concerned with causation and quantum.

[2]The claimant sustained soft tissue injuries in the accident and initially experienced neck and back pain. However, in early January 2021 she developed a significant exacerbation of symptoms including lower limb weakness and urinary disturbance following what is said to have been a violent sneeze. She presented to hospital with a suspected cauda equina syndrome which was not confirmed on imaging. Thereafter, her symptoms persisted and evolved and in March 2022 she was diagnosed with functional neurological disorder.

[3]Against that background, the claimant's case is, in broad terms, that the accident caused or materially contributed to the onset of her disabling condition. Alternatively, that it accelerated the development of a condition which would otherwise have arisen later.

[4]The defendants' case is that the accident caused no more than transient soft tissue injury. The claimant's subsequent deterioration is to be explained by her significant and longstanding preexisting conditions and/or by the acute episode in January 2021 as an independent intervening event.

[5]It is common ground that the claimant is now substantially disabled. The dispute is as to the extent, if at all, to which that disability is causally attributable to the accident.

[6]The matter came before Master Eastman for a case management conference in March 2025, or, as more precisely explained at the oral hearing before me, he made an order by consent on that occasion. Comprehensive directions were given for the determination of the issues of causation and quantum, including permission for the parties to rely on expert evidence in a number of disciplines, namely neurology, neuropsychiatry, rheumatology, orthopaedics and care and occupational therapy.

[7]In accordance with those directions, the parties exchanged medical expert reports on 9 January 2026. Thereafter, and following some delay, joint statements of the experts were completed by 10 March 2026. The timetable for the exchange of care and occupational therapy evidence was substantially extended but that aspect of the expert evidence remains incomplete.

[8]The claim has been listed for trial with a time estimate of several days commencing on 15 July 2026. However, the present hearing relates to two applications made by the defendants which bear directly on the preparation of the expert evidence and, potentially, the viability of that trial date.

[9]The first is an application dated 5 March 2026 by which the defendants seek permission to rely upon expert evidence from a consultant cardiologist, Professor Morgan. That application arises in the context of the claimant's pre-existing diagnosis of postural orthostatic tachycardia syndrome, more usually known as “POTS”, and its potential relevance to the issue of causation and future loss. The claimant opposes the introduction of such evidence.

[10]The second is an application dated 22 April 2026 concerning the redaction of the claimant's disclosed medical records. Concerns emerged during the course of the experts' joint discussions that certain records appear to have been redacted in a manner which was not fully explained and which might bear upon the central issues in the case. The defendants seek clarification as to the provenance and extent of those redactions and have sought to obtain unredacted records directly from the relevant providers. The application notice summarises the orders sought as follows:

"The defendants seek an order to vacate the trial dates in light of concerns arising relating to the redaction of disclosure relating to causation and quantum. The claimant and her solicitor be given the opportunity to respond via a witness statement; a further hearing to be listed upon service of those statements to consider further case management."

[11]Against that background, it is common ground that the outstanding issues in relation to disclosure and expert evidence have disrupted the timetable for the preparation of the case. The defendants contend that the current trial date is plainly at risk and should be vacated, whereas the claimant maintains that the matter can proceed within the existing timetable.

[12]Three issues arise on the present applications.

[13]First, whether the defendants should be granted permission to rely upon expert cardiology evidence. This requires consideration of whether such evidence is reasonably required for the determination of the issues in the case having regard in particular to the claimant's pre-existing diagnosis of POTS, the scope of the existing expert evidence and the stage which the proceedings have reached.

[14]Secondly, the issues arising in relation to the redaction of the claimant's medical records. It is necessary to consider the nature and extent of any redactions, the explanation for them and their potential significance for the issues of causation and quantum, including whether the expert evidence to date has been prepared on a complete and reliable evidential basis.

[15]Thirdly, and arising from those matters, is the question of the future conduct of the proceedings. In particular, whether the existing trial date can realistically be maintained. That issue depends upon an assessment of the extent to which further evidence is required, the time needed to obtain and consider that evidence and the overriding objective of dealing with the case justly and at proportionate cost.

[16]I turn firstly to the cardiology application. The starting point is CPR Rule 35.1 which provides that expert evidence is to be restricted to that which is reasonably required to resolve the proceedings. The court is therefore concerned not with whether the proposed evidence would be of some assistance but whether it is necessary or at least reasonably required in the light of the pleaded issues and the evidence already available.

[17]As is well established, the court will ordinarily consider:(i) Whether such evidence is necessary to resolve an issue;

(ii) If not strictly necessary, whether it would nevertheless assist the court; and

(iii) Whether, taking into account proportionality, costs, delay and the effect on the trial timetable, the evidence is reasonably required for the fair determination of the claim.

[18]The defendants submit that cardiology evidence is required to address the impact of the claimant's pre-existing POTS, including its relationship with her other conditions and to inform the but for counterfactual in relation to her earning capacity and level of disability. They rely upon the report of Professor Morgan, contending that the existing expert disciplines do not adequately address these issues.

[19]The claimant opposes the application. She submits that the medical evidence permitted by the court's earlier directions is now complete and none of the existing experts has identified a material gap requiring cardiological input. The proposed evidence is neither necessary nor proportionate. It is further said that the application has been made late in the proceedings and if granted would jeopardise the trial date.

[20]I have considered the scope of the existing expert evidence, the subject matter of the proposed cardiology evidence and the stage which these proceedings have reached. It would be fair to say that the case is already supported by expert evidence in multiple disciplines addressing the claimant's neurological, psychiatric, rheumatological and orthopaedic conditions. Those experts have addressed both diagnosis and causation including the interaction between the claimant's various conditions. While there are references in the documentary material and records to the claimant's POTS, it is notable that no application was made at the case management stage for cardiological evidence, the case has proceeded on that basis to the exchange of reports and joint statements.

[21]The proposed evidence from Professor Morgan goes directly, in significant part, to matters which overlap with issues already addressed elsewhere, including the claimant's level of pre-existing disability and the likely but for position. To the extent, however, that it offers a distinct perspective on POTS, the question is whether that perspective is necessary or reasonably required for the resolution of the issues.

[22]In that regard, I take into account not only the potential utility of such evidence but also the practical consequences of admitting it at this stage. It is common ground that if permission were granted, there would need to be a reciprocal permission for the claimant with a consequential delay which would preclude the trial taking place in July.

[23]Standing back, the question is whether the addition of this further discipline is justified in the light of the existing evidential landscape and the overriding objective. I have considered this carefully.

[24]The chronology of Professor Morgan's involvement remains a matter of concern in that the claimant's diagnosis of POTS was known prior to the case management conference; no application was then made for cardiological evidence. The defendants chose to instruct Professor Morgan unilaterally and without permission and only subsequently sought the court's approval. By February 2026 when the report was in its final form, the case had progressed in accordance with the court's directions to the point of exchange of reports and the preparation of joint statements in the permitted disciplines.

[25]In those circumstances, the proposed evidence cannot be regarded as filling an unforeseen evidential gap and would certainly add a further layer of expert opinion to a case which has already been prepared on a separate footing. However, the position at the hearing has in my view materially evolved, in particular I have now had regard to the claimant's recently disclosed care report and schedule of loss which makes express reference to the claimant relying upon care assistance in circumstances where she seeks to avoid activities which might exacerbate her POTS. That includes, at the very least, aspects of her personal care in relation to which she relies on carers. That evidence brings the impact of POTS closer to the forefront of the claim for future care and loss.

[26]In those circumstances, the question is no longer whether cardiology evidence would merely be additive but whether in the light of the way the claim is now put, it is reasonably required to enable the court properly to assess the interaction between POTS and the claimant's other conditions and her functional limitations for the purposes of causation and quantum.

[27]Applying CPR Rule 35.1, I am in the event satisfied, albeit not without hesitation, that cardiology evidence is now reasonably required for the fair determination of the proceedings. That conclusion is reinforced by considerations of procedural fairness. It would be unsatisfactory for the defendants to be constrained to meet a case which relies upon the functional consequences of POTS without the ability to adduce expert evidence addressing that condition specifically. In those circumstances, I grant permission for the defendants to rely upon the report of Professor Morgan. It follows that the claimant must be afforded a fair opportunity to obtain and rely on corresponding cardiological evidence of her own.

[28]I turn then to the redaction application. A party is under a duty to give standard disclosure of documents within its control and absent a proper basis for redaction, for example privilege or irrelevance, the opposing party is entitled to inspect documents in the form in which they were created or received. Where redactions have been applied, the court is entitled to require an explanation as to their nature, scope and justification. In a case of this nature where the medical records form a central evidential foundation for expert opinion, it is also necessary to consider whether any lack of clarity in the disclosed material has compromised or may compromise the reliability of the expert evidence.

[29]The defendant's position is that there are multiple and unexplained redactions within the claimant's disclosed medical records, which appear to relate to matters of potential relevance to causation and quantum. They submit that the provenance and rationale for those redactions has not been suitably explained and that it is necessary for unredacted records to be obtained and considered, including by the experts.

[30]The claimant's explanation, in summary, is that certain apparent redactions are not true redactions at all, they are as a result of her having sought to annotate or highlight parts of the medical records after receipt which she believes caused the text to appear to be obscured. She accepts that this has been unfortunate and has given rise to confusion but denies any deliberate attempt to withhold material and relies in that regard on her ready provision of authority for the defendants to obtain the underlying records directly from the source. She contends that the issue has been overstated, the redactions are limited and explicable and that the expert evidence has not been materially affected.

[31]The defendants' response to that explanation is that it is unsatisfactory and inconsistent with the objective evidence. They point in particular to the fact that the additional redactions appear to have been applied selectively to entries of obvious relevance to the issues of causation and quantum, including pre-accident symptoms and functional limitations and to the fact that different versions of the records appear to have been provided within the expert process. In those circumstances, the defendants submit that the explanation of inadvertent highlighting is implausible or at best incomplete, the position calls for fuller investigation before reliance can properly be placed on the medical evidence.

[32]The evidence at this hearing also clarified that the position in relation to the medical records is more uncertain than previously understood. In particular, it is not possible to identify with any precision which parts of the disclosed records have been subject to the claimant's process of highlighting, nor the extent to which that process may have obscured the underlying text.

[33]As a matter of procedural fairness and the claimant's disclosure obligations, the defendants are entitled to know the extent and location of any such alterations to the underlying records. That is particularly so in a case where the medical records form a central evidential foundation for the expert evidence on causation and quantum and where the changes made by the claimant in total may be legitimately explored in cross-examination. The question of whether or not the claimant has been candid and whether her explanation fits the facts can be explored at trial and I make no determination on any such issue at this stage.

[34]Although the claimant has provided mandates enabling the defendants to obtain records directly from the source, it is apparent that given the volume of the documentation and the time required for third party responses, it may not be possible to obtain and process all relevant material in advance of the current trial date.

[35]In those circumstances, I am satisfied that the present uncertainty surrounding the integrity and completeness of the medical records is at least potentially capable of having a real impact on the reliability of the expert evidence and the approach taken to the claimant's own evidence. The defendants are entitled to have that issue resolved before being required to proceed to trial.

[36]It follows that the concerns raised by the defendants are not merely technical or peripheral but go to the fairness of the trial process. The position must therefore be regularised through further disclosure and if necessary reconsideration of the expert evidence.

[37]I turn then to the trial date. The court does not lightly vacate a fixed trial date, however the question is whether the case can now be tried fairly within the existing timetable. The court's approach to the adjournment or vacation of a trial date is guided by the overriding objective. A trial date is not to be lost if at all possible. However, where it is not possible to proceed fairly due to outstanding evidential issues, the court must ensure that the parties have a proper opportunity to present their cases.

[38]Three matters are material in that regard. First, I have concluded that cardiological evidence should be permitted which will necessitate further expert instruction on both sides. Secondly, the position concerning the medical records remains unresolved and the process of obtaining and reviewing unredacted material is ongoing and unlikely to be completed in time. Thirdly, the care evidence has not been exchanged in accordance with the court's timetable and the care experts have not yet met with the consequence that the evidence has not been crystallised in final schedules or counter schedules.

[39]Taken together, those matters lead me to the clear, albeit reluctant, conclusion that the case is not trial-ready. To require the parties to proceed to trial in those circumstances would risk injustice and would be inconsistent with the overriding objective. In those circumstances, the trial date must be vacated to enable the case to be properly prepared, including the resolution of the disclosure issues and the ordinary exchange and consideration of cardiology and care evidence.

[40]For those reasons, I accede to the defendants' applications in this case. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk