The Dekagram: 6th October 2025

This week we welcome Bethany Hutchison to the Dekagram family; in her first Dekagram article she asks what parties need to do if they wish to apply for a stay of proceedings on medical grounds, and how best to resist such an application. Meanwhile Ben Rodgers considers when a claimant might expect to lose QOCS costs protection having had their statement of case struck out, a question of particular pertinence to cross border practitioners in a local standards context.

Staying Proceedings on Medical Grounds: How to Do It – and What Not to Do

Introduction

Do parties need CPR Pt 35 permission to rely on expert medical evidence in an application to stay proceedings on medical grounds? The answer appears to be categorically ‘no’, with the High Court stating a submission to suggest so was ‘misconceived’.

The application

In an interim judgment in Friend MTS Limited v Friend Partnership Limited [2025] EWHC 2471 (Ch), handed down on 30^th September 2025, the High Court considered a Defendant’s application to stay proceedings on the basis that an important company Director was having to undergo a course of chemotherapy in respect of a diagnosis of lymphoma.

The Defendant stated the chemotherapy meant the Director was unable to give instructions on key matters. Its application relied on two letters from a Consultant Haemato-oncologist. The first set out the Director’s medical history and the diagnosis, and the typical symptoms of the chemotherapy which include fatigue, poor concentration and decreased cognitive ability for up to six months post-treatment. The Consultant recommended the Director avoid any stressful activities and work that involves high levels of focus or concentration until that point (January 2026). The Consultant’s second letter stated:

“In my opinion, she is currently unable, because of fatigue and poor concentration, to review lengthy documents or to have the ability to engage with solicitors.”

The application was ultimately rejected, with the Court accepting the Claimant’s submission that another of the Defendant’s directors had sufficient knowledge of the facts underlying the dispute to provide adequate instructions to the solicitor.  But Deputy District Judge Bradshaw, sitting as a High Court judge, had some interesting things to say about the Claimant’s other objections.

The other objections

Along with the ultimately successful objection set out above, the Claimant protested that the Consultant’s letters were inadmissible because they had not been adduced as expert evidence under CPR Pt 35; as such, the Consultant’s opinions should not be admitted. The Claimant also raised there had been no direction issued in respect of questions the Claimant might wish to put to the Consultant, and so it had not been able to challenge the evidence upon which the application relied.

The law

The judge held the correct approach to the application was that taken by HHJ Pelling QC in Financial Conduct Authority v Avacade Ltd and Ors [2019] EWHC 1961 (Ch). HHJ Pelling QC applied, by analogy, the approach taken to applications for an adjournment on medical grounds, as taken by Lewison LJ in Forresters Ketley v Brent and Anor [2012] EWCA Civ 324. In turn, Lewison LJ had adopted guidance on the medical evidence required for such applications given by Norris J in Levi v Ellis-Carr [2012] EWHC 63 (Ch). The test is summarised at [38] of the instant judgment:

i) A stay of proceedings on medical grounds is an exceptional order and one that requires very clear justification.

ii) A stay should not be granted on the basis of stress to a party or witness caused by the proceedings themselves, as such stress is likely to recur so resulting in repeated applications for a stay [in this matter, although the stress concerned was related to the proceedings, the underlying issue was one being treated, with a prognosis for recovery after six months, so prohibitive stress was not likely to recur ad infinitum].

iii) The medical evidence required is the same as that required for an application to adjourn on medical grounds, i.e. that set out by Norris J in Ellis-Carr. The evidence must be from a medical professional with detailed knowledge of the person in question, that person’s diagnosis, and the effect of that diagnosis on that person’s ability to participate in proceedings. It should include a prognosis as to when the person in question will be able to participate and in what manner.

Admissibility of expert medical evidence

Clearly, in view of the legal test, medical evidence is required to make an application to pause proceedings (whether by adjournment or stay). That medical evidence will need to include the medical professional’s opinion.

The High Court made short shrift of the Claimant’s admissibility arguments. At [35] the judge states – with the charming caveat of ‘with the greatest respect to counsel’ (we’ve all been there) – that the argument was misconceived. He considered that, to the extent any application is required under CPR Pt 35, the wider application is implicitly an application for both permission to rely on expert medical evidence and for the grant of an adjournment on the basis of that evidence.

As to the Claimant’s argument that the lack of directions for CPR Pt 35 questions meant it hadn’t been able to ask clarifying questions of the Consultant, the High Court’s view was that CPR r35.6(1) does not require the court to give directions, but rather it sets out the right of a party to put written questions about an expert’s report. The CPR presented no obstacle to the Claimant having written to the Consultant with questions, and it had not done so.

As such, the medical evidence was considered fully by the Court in reaching its decision.

Conclusion

In view of the court rejecting the application for a stay, the case of Friend MTS Limited v Friend Partnership Limited will rumble on, but one thing remains the same; the test for applying for a stay on medical grounds is the same as in an application for an adjournment on medical grounds, and that test won’t easily be circumnavigated by procedural arguments about CPR Pt 35.

About the Author

Bethany Hutchison was called in 2021. Prior to joining chambers she gained a broad range of experience working in the legal advisory teams in the Cabinet Office and the Ministry of Housing, Communities and Local Government, following successful completion of her pupillage with the Government Legal Department, advising on high profile commercial, immigration and contractual matters during that time. She is now developing a busy common law practice across the full range of chambers’ specialisms. 

QOCS, Expert Evidence and Pleadings: a Cautionary Tale

Master Thornett recently gave a reserved judgment (Read v North Middx Hospital Trust [2025] EWHC 1603 (KB)) in which he removed a claimant’s QOCS protection because the claimant had not disclosed reasonable grounds for bringing the claim.  Unfortunately the case of Kasongo v TFL [2023] EWHC 1464 (KB) was not cited, causing some confusion. 

The claimant claimed for injury to his spine which, he alleged, would not have happened had he been examined competently in the defendant’s A&E.  He issued and served the claim himself during the pandemic.  His particulars of claim did not comply with CPR Part 16 and the defendant applied for an order requiring him to re-do his statement of case properly.  The claimant obtained legal representation and the parties agreed a consent order, requiring him to serve amended particulars of claim “setting out further and better particulars of the allegations of breach of duty and causation of injury” – failing which his claim was to be struck out.

The amended particulars of claim, served this time by solicitors, fared no better.  The defendant applied to strike them out too.  Master Thornett’s judgment contains a detailed, line-by-line analysis of the amended particulars of claim.  This statement of case did not, he found, “readily present its allegations in terms immediately recognisable in clinical negligence terms usually encountered, at least in this Division.”  Because it did not provide further and better particulars of the claimant’s case on breach and causation, it did not fulfil the requirement of the consent order.  The claimant’s case had therefore automatically been struck out.

The judgment then (paragraph 83 onwards) deals with whether that strike out resulted in the claimant losing QOCS.  The obvious answer is “no” – the claimant had been struck out for failure to comply with an order, not for any of the reasons in r.44.15.  So Master Thornett went on to decide that the claimant had in fact disclosed no reasonable grounds for bringing the claim and / or that the amended particulars of claim were an abuse of the court’s process.  It is not very clear from the judgment why either was true, as bad as the statement of case apparently was.  Master Thornett may well have been assisted by the judgment of Choudhury J in Kasongo v. TFL [2023] EWHC 1464 (KB), but it does not appear to have been drawn to the attention of the court.

Rule 44.15 continues to cause difficulty.  It is badly drafted.  It is a distorted echo of r.3.4(2).  It is not clear how it is supposed to work: do you strike out under r.3.4(2) and then r.44.15 follows automatically without further order?  If so, how do you deal with the difference in language between those two rules?  Or does the defendant seek an order striking out under r.44.15?  If so, why is r.44.15 expressed in the past tense?

These problems confuse judges and practitioners when a claim is brought to an end before trial.  This is made all the more difficult when the leading case, Kasongo v TFL [2023] EWHC 1464 (KB), is not referred to in the White Book in the notes to r.44.15 (it is referred to in the notes to r.3.4).

The question is, has the claimant failed to disclose reasonable grounds for bringing the claim?  This is a very low bar.  Unlike r.3.4(2), it does not refer to the statement of case but to the claimant.  A case caught by r.44.15 is a case which was not reasonably arguable in the first place.  A regulated lawyer has no business pleading such a case.  If an injury claimant, on the advice of a lawyer, honestly brings a claim which he can disclose no reasonable grounds for bringing, he will surely have a cause for complaint against his lawyer in respect of the resulting costs liability. The question is: is the claim really as bad as that?

About the Author

Ben Rodgers was called in 2007 and now specialises in personal injury work with an emphasis on accidents abroad, including maritime accidents (he is himself an excellent sailor). He is listed for personal injury in the Legal 500, where he is said to be ‘go-to counsel for complex liability disputes; calm and composed, but will fight ferociously when required.’