Two discrete procedural points arise out of Yip J’s decision in Saunders v Manchester University Hospitals NHS Foundation Trust  EWHC 343 (QB). They restate principles which are of considerable practical significance for those preparing and litigating civil claims.
The case concerned a clinical negligence claim arising out of the Claimant’s ileostomy and its reversal. The surgery took place on 20th March 2012 and was reported to be entirely unremarkable. The Claimant was discharged on 23rd March. He subsequently became seriously unwell, and on 25th March was re-admitted to hospital with severe sepsis. An emergency laparotomy was conducted. The large bowel was entirely ischaemic and had to be removed.
The burden of proof, and res ipsa loquitur
The Claimant’s case was that the initial surgery was negligently performed in such a way that it damaged the blood supply to his bowel. The Defendant’s case was that the damage was caused by a naturally occurring blood clot.
The parties were agreed that these explanations – themselves rare occurrences – were the only viable possibilities. The task for the judge was therefore to work out, on the evidence available, which was the more likely.
It was accepted, of course, that the Claimant bore the burden of proof. Yip J added this:
16. In considering the factual issue as to whether damage was done during surgery or through natural causes, care must be taken not to resort too readily to the burden of proof. In Barnett v Medway NHS Foundation Trust  EWCA Civ 235, the Court of Appeal reviewed the authorities in the context of factual causation in a clinical negligence action, citing Verlander v Devon Waste Management  EWCA Civ 835. I have in mind that, as Auld LJ stated at paragraph 19 of that case:
“a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence.”
17. Further (paragraph 24 of Verlander):
“such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice – and a respectable and useful part at that – where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
The evidential difficulties, and the perceived significance of the Claimant’s burden of proof, are all the more acute in cases such as this one, where the anaesthetised Claimant can give no factual evidence as to what actually happened.
Just as judges and Defendants should resist resorting unnecessarily to the burden of proof, the doctrine of res ipsa loquitur ought also to be treated with caution. Indeed, Yip J cited the comments by Jackson LJ in O’Connor v The Pennine Acute Hospitals NHS Trust  EWCA Civ 1244:
More recent authority has tended to the view that res ipsa loquitur is not a principle of law at all. There is no reversal of the burden of proof. The so-called res ipsa loquitur cases are merely cases in which, on the totality of the evidence, the court was able to make a finding of negligence. It has always been the position that courts can make findings of fact by means of inference when there is no direct evidence of the events in issue.
These are useful reminders for those seeking to prove or disprove negligence, particularly in cases of clinical negligence. Defendants cannot place excessive reliance on the Claimant’s burden of proof. Claimants cannot simply cite res ipsa loquitur. Courts will look, as they always have done, at the totality of the evidence.
Experts’ joint statements
Both parties in this case adduced their own expert evidence. Yip J said this:
34. Both experts provided clear reports that were easy to read; thorough and attractively presented with useful diagrams attached. However, their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but through the way in which the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.
35. I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned. Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. Frankly, the approach to the joint statement in this case achieved nothing of value.
The tone and content of the Practice Direction is clear; discussions between experts, and the agendas on which they are based, ought to be collaborative. The purpose is to narrow the issues. The process should not be used as an attempt to gain a tactical advantage.