The Dekagram: 3rd March 2025

This week we bring news of the current position on anonymity orders pending the decision of the Court of Appeal in PMC; and consider a late application to adduce expert evidence in the wake of the decision of the Court of Appeal in Yesss (A) Electrical Limited v Warren [2024] EWCA Civ 14.

Anonymity Orders: Where are we Now?

The big news of the week (although it is anticlimactic) came in last Tuesday’s Court of Appeal hearing in PMC v A Local Health Board [2025] EWCA Civ 176, on appeal from the first instance judgment of Mr Justice Nicklin [2024] EWHC 2969.

That first instance decision had made life very uncertain for anyone preparing for an approval hearing because, in the concluding section of that judgment, Nicklin J set out a critique at [147]-[159] of the model order devised by the Personal Injuries Bar Association and published as a court form, numbered PF10, and opined that the wording may be wrong. That discussion also suggested that JX MX [2015] EWCA Civ 96 may have failed to consider s.11 of the Contempt of Court Act 1981 and other relevant appellate authorities.

Nicklin J’s critique has led to differing judicial practices at approval hearings.

Civil Procedure News issue 1/2025 (14.1.25) published by the White Book, has further said the following: “Given the errors noted in the draft order [PF10], urgent consideration of its terms and their revision by the [Civil Procedure Rules Committee] would seem to be justified. Practitioners should take care to note the guidance given in the judgment [of Nicklin J] and approach the draft order accordingly.”

The Court of Appeal have, however, sought to introduce certainty for the time being and  informed parties that they should continue to adhere to the judgment of JX MX [2015] EWCA Civ 96 which provides guidance for approval hearings and related issues in the making of anonymity orders, and to use PF10 when engaged in approval hearings.

This is a holding position. The Master of the Rolls said:

“We do not express any view on the merits of that (Nicklin J’s) critique. We are in no position to do so at this stage. However, in the light of the information about the practical impact of that critique which has been provided to us at the hearing today, we would suggest that, for the sake of good order, it may be best for practitioners and judges to continue to use that form for the time being. … As we have said, it is advisable to use PF10 in the interregnum that arises until judgment is given in this appeal. It is also worth pointing out that first instance judges remain bound by the decision in JX MX, until that decision is either departed from by the Court of Appeal or overruled by the UKSC.”

In terms of when the appeal will be heard, the substantive appeal hearing in PMC has been adjourned until early in the summer term. The reason why we have a holding position is that the Court of Appeal wish to have sight of the forthcoming judgment from the UK Supreme Court in Abbasi v Newcastle upon Tyne NHS Trust [2023] EWCA Civ 331. Abbasi concerns the making of Reporting Restriction Orders and the associated balancing of competing Article 8 rights (which concern the right to privacy) of the hospital staff in that case and the Article 10 rights (which concern the right to freedom of expression) of the parents to write publicly about the circumstances in which their children were treated and died. Hence (per Ms Nicola Greaney KC’s submissions) that appeal concerns the nature of evidence required to justify a departure from open justice in cases which involve a [Re S [2005] 1 AC 593] balancing exercise of Article 8 and Article 10 rights, and will include discussion of what sort of evidence a child or protected party must adduce in relation to potential future risks if they are not granted an anonymity order, and whether the Court of Appeal in JX MX was correct that evidence as to specific risks was not required.

It may be that Abbasi does not hold the key to the answers posed by PMC. As Mr Weir KC submitted for the appellants Abbasi was concerned with the parens patria jurisdiction of the court, unlike this case, and he was only seeking to invoke the jurisdiction of the court to make Reporting Restrictions Orders (RROs) under section 6 of the Human Rights Act 1998 alongside section 37 of the Senior Courts Act 1981.

For the meantime, we have instructions to return to previous custom before Nicklin J’s involvement – but no clear direction of travel thereafter.

Practitioners should note in any event Jacklin J’s warnings for those seeking anonymity orders after the Claim Form and Particulars of Claim are filed, given identities are then said to be “embedded in the public domain”.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

Late Applications to Adduce Expert Evidence after Yesss (A) Electrical Limited v Warren [2024] EWCA Civ 14

Astute Dekagram readers (is there any other kind?) will recall that in Yesss (A) Electrical Limited v Warren [2024] EWCA Civ 14 the Court of Appeal, ably guided by Deka’s own Matthew Chapman KC and Bernard Pressman, determined that a late application to adduce expert evidence is not an application for relief from sanctions, but a common-or-garden application to which the overriding objective is applied.

Judge Pelling KC, sitting in the Commercial Court, has now applied the reasoning in Pelling to a very late application which, in the end, turned out to be something of a storm in a teacup.

The claimant in the underlying dispute was a Romanian package holiday operator and the defendant was a Romanian company which offered wet leases of aircraft, in this particular case an Airbus A320 for six months from April to October 2020. The claimant contended that as a result of the Covid-19 pandemic the lease had been terminated by force majeure, repudiatory breach and/or frustration and sought return of its deposit. That claim was dismissed, and the only claim left outstanding was the defendant’s counterclaim for payments due under the lease.

The trial of the counterclaim was listed for March 2025. Directions had been given in March 2024, including permission for expert evidence on Turkish law relating to the meaning of the requirement in Article 1(k) of Annex 6 to the relevant Turkish Aircraft Leasing Directive that the wet lease had to contain a clause stating that the agreement would become effective on approval by the Directorate General of Civil Aviation, and in particular whether the lease had no legal effect in the absence of approval; or whether no flights could be made in Turkish airspace under the lease; or whether a domestic lessee could not conduct flights under the lease.

In June 2024 the parties’ respective Turkish law experts duly produced a joint report on these matters. In February 2025, however, some five weeks before trial and seven months after the timetabled date for making such an application, the claimant applied to adduce further expert evidence as to whether a non-Turkish entity (“CAE”) needed permission to operate charter flights in Turkish airspace. Permission had not been given to adduce expert evidence about the applicable Turkish regulations in relation to non-Turkish entities, hence the need for the application.

The context was that the defendant had pleaded that Turkish CAA approval was not necessary for flights to take place under the lease because CAE could use its Maltese air operator’s certificate for flights to and from Turkey; however, this part of its case had not been addressed when permission was sought and given for the parties to adduce Turkish expert evidence. The claimant therefore contended that permission should be given for it to rely on further evidence covering the point, notwithstanding that the application was made so shortly before trial. In response the defendant submitted that the application was too little, too late – and, furthermore, offered to delete that part of the pleading relating to non-Turkish carriers undertaking flights within Turkey, rendering the question of the approach taken in Turkish law irrelevant.

In the circumstances it may be unsurprising that Judge Pelling KC dismissed the application, citing Yesss as authority for the proposition that the claimant did not require relief from sanctions because there was no rule containing a sanction for failing to apply for permission to adduce expert evidence on time, but applying the overriding objective to consideration of the application. It was relevant that:

1. there was an order that required such an application to be made by a fixed date. That order did not expressly provide for a sanction and the court would determine the application under its discretionary case management powers, having regard to the procedural history and the inevitable disruption that would be caused to trial preparation if the application was granted because it was made so late.
2. the point which the additional expert evidence sought to address was concerned with the operation of charter flights using wet leased aircraft in Turkish airspace.
3. Turkish law could have no impact on non-Turkish operators operating outside Turkish airspace. It followed that the defendant’s offer to delete the relevant words from its pleading meant that the issue ceased to be material and on that basis the application failed.

Comment

The decision must surely be right; the defendant shrewdly offered to amend its pleading so as to render the evidence sought otiose, leaving the claimant unable to point to any reason to allow the evidence in, with all the cost and disruption that would have caused. Whether or not the application would have been granted in the absence of the concession offered is perhaps a more difficult question, however. Where a party requires expert evidence to prove its case, and where that evidence has not been sought or granted previously, it will always be an uphill battle to convince a court that it is consonant with the overriding objective that a trial date should be imperilled by allowing further evidence to be adduced. Each case will of course turn on its own facts, but the centrality of the evidence to the claim is a factor which cuts both ways; first, because the greater the importance of the evidence the more likely it is that it would be unjust not to allow it, but secondly, because parties should seek permission for expert evidence crucial to their case at as early a stage as possible.

In summary, the case is a further reminder that nothing assists litigation like a bit of early thought as to strategy. Directions Questionnaires are not merely tick-box exercises demanding little time or thought – they are prompts to consider case theory carefully and thoroughly and to strategise the claim and the response to it. As such the courts’ approach to expert evidence certainly justifies spending some time and consideration in completing them.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and (formerly) Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.