The Court of Appeal has ordered three defendants in a personal-injury action to provide further particulars of their denials that they failed to obtain Daniel Crean’s informed consent before his 2015 hip operation.
The appeal concerned the information defendants must give about a denial in a defence. Mr Crean alleges that he developed peripheral neuropathy in his right lower leg after a total right hip replacement in October 2015. He does not allege the surgery itself was performed negligently. His claim is that he was not warned of risks he says were increased because he had undergone two earlier operations on the same hip.
The defendants’ pleadings denied that they had failed to obtain informed consent. When Mr Crean’s solicitors asked for details of the advice and information given before surgery—including who gave it, when and where, and whether it was provided in writing—the defendants refused, saying particulars could not be sought of a straightforward denial.
The High Court refused Mr Crean’s application to compel the particulars. On appeal, the defendants argued that their denial complied with the law, that the request sought evidence, and that Mr Crean already had his medical records and consent form.
The Court of Appeal allowed the appeal. It held that, although the denial was framed negatively, in substance it asserted that informed consent had been obtained. The court said the requested particulars would show the defendants’ position on the central issue and were needed to clarify the case Mr Crean would have to meet at trial.
The court also ruled that section 13(1)(b) of the Civil Liability and Courts Act 2004 requires a defendant in a personal-injury action to provide full and detailed particulars of each denial or traverse where particulars can be given. The fact that a denial is phrased negatively does not by itself remove that obligation. The court rejected the argument that access to medical records or the later exchange of expert reports could replace particulars in the pleadings.
The court set aside the High Court order, including its costs order in the defendants’ favour, and directed each defendant to provide the particulars sought in letters dated 15 and 17 August 2018. It proposed that Mr Crean receive the costs of the appeal and High Court application, subject to a stay pending determination of the proceedings. Parties had 14 days, excluding the Christmas vacation, to seek a brief hearing on costs. The judgment did not decide whether the defendants obtained informed consent or determine the underlying injury claim.