Supreme Court New South Wales Medium Neutral Citation: Smythe v Burgman [2015] NSWSC 150 Hearing dates: 3 March 2015 Date of orders: 03 March 2015 Decision date: 05 March 2015 Before: Hoeben CJ at CL Decision: (1) The plaintiff's motion to vacate the hearing date is refused. (2) The plaintiff is to pay the costs of the application before me on 3 March 2015. (3) I direct that the plaintiff is to file and serve an evidentiary statement restricted to the issue of liability by 1pm on Friday, 6 March 2015. Catchwords: PRACTICE AND PROCEDURE – application to vacate hearing date – complex medical negligence matter – application to vacate brought 2 ½ weeks before hearing date – change of solicitor with new solicitors wishing to re-instate a claim previously abandoned – ss 56-58 of Civil Procedure Act 2005 – application to vacate hearing date refused. Legislation Cited: Civil Liability Act 2002 – s5D(2) Civil Procedure Act 2005 – ss56 - 58 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 King v Western Sydney Local Health Network [2013] NSWCA 162 Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 Category: Procedural and other rulings Parties: Lynne Smythe – Plaintiff Dr Zoe Burgman – Defendant Representation: Counsel: Mr I D Roberts SC – Plaintiff Mr M Windsor SC – Defendant Solicitors: Monaco Solicitors – Plaintiff Holman Webb Lawyers – Defendant File Number(s): 2012/370062 Judgment 1. HIS HONOUR: Nature of proceedings The plaintiff was a patient of the defendant who is a general medical practitioner located at the Kingscliff Medical Centre, Kingscliff in northern New South Wales. 1. The plaintiff consulted the defendant between 15 October 2010 and March 2011. 2. On 20 April 2011 the plaintiff underwent a below knee amputation. The plaintiff alleges that the defendant failed to diagnose a thrombosis and that failure caused or materially contributed to the below knee amputation. The plaintiff alleges that the defendant was in breach of duty in failing to properly examine her left lower leg, particularly the foot, on 14 March 2011 and in failing to identify left leg ischaemia at that time and/or refer the plaintiff for appropriate investigation. 3. On 30 June 2014 the claim was allocated a hearing date commencing 9 March 2015 with an estimate of 10 days. The plaintiff, by motion filed 20 February 2015, has applied for the hearing date to be vacated. The defendant opposes that application. 4. It is the motion to vacate the hearing date which was heard by the Court on 3 March 2015 and which is the subject of this judgment. Background 1. The cause of action accrued in March/April 2011. On 31 May 2011 the plaintiff instructed Messrs Carroll and O'Dea, solicitors, to investigate a medical negligence claim against the defendant. On 28 November 2012 a Statement of Claim was filed. On 27 March 2013 a Defence to the Statement of Claim was filed. On 2 February 2014 a mediation took place at Tweed Heads, but was unsuccessful in resolving the claim. 2. On 21 May 2014 an Amended Statement of Claim was filed. On 3 June 2014 a Defence to the Amended Statement of Claim was filed. On 30 June 2014 the matter was listed for hearing, commencing 9 March 2015, and orders for case management in accordance with Practice Note SC CL 7 were made. On 12 December 2014 leave was granted by the Court for the filing by consent of a Further Amended Statement of Claim. The plaintiff's solicitor handed up an Affidavit evidencing Readiness for Hearing. On 27 January 2015 the plaintiff filed a Further Amended Statement of Claim. This document did not make any allegations arising from the prescription of tranexamic acid. On 9 February 2015 a Defence to the Further Amended Statement of Claim was filed. 3. Until the filing of the Further Amended Statement of Claim, the plaintiff's case against the defendant had comprised two parts. One was the failure to diagnose and investigate. The other was that the defendant had been negligent in the prescription of tranexamic acid for the plaintiff which had led to the formation of a blood clot, which in turn had contributed to the development of a thrombosis in the left leg. 4. On the issue of whether tranexamic acid should have been prescribed by the defendant for the plaintiff, Dr Korda, gynaecologist, was retained on behalf of the plaintiff and provided expert reports and Professor Fraser was retained and provided reports for the defendant. Professor Fraser is a world renowned expert in the investigation and therapy of abnormal uterine bleeding and has authored a large number of publications on this topic. He also had particular knowledge relating to the use of tranexamic acid in Australia as a therapeutic agent. 5. By way of further background, the plaintiff had a longstanding history of excessively heavy menstrual bleeding due to uterine fibroids. Other treatments had been tried which did not control her bleeding. The defendant consulted Dr Trueman, gynaecologist, who recommended tranexamic acid as treatment until the bleeding stopped. The tranexamic acid decreased the plaintiff's bleeding but did not stop it. Thereafter, the tranexamic acid treatment was continued for 12 weeks. 6. The issue between the parties before the filing of the Further Amended Statement of Claim is probably best demonstrated by the following question and answer in Professor Fraser's report of 13 June 2014. "Please provide your comments on the reports of Dr Andrew Korda. Do you agree with his findings with respect to the use of tranexamic acid? If not, why not? Dr Korda is a very experienced and well regarded gynaecologist with a primary practice in uro-gynaecology. I am unaware of the extent of his practical usage or specialised knowledge of the use of tranexamic acid. However, his opinions about this drug are not based on any evidence presented in the international literature. The concerns which he expresses repeatedly are those which were prevalent several decades ago but have never been shown to be correct. Hence I have to disagree with almost every statement he has made suggesting the tranexamic acid increases the risk of arterial or venous thrombosis or embolism." 1. In a later report of 25 June 2014 Professor Fraser said: "In view of the circumstances of this case where there was no alternative effective, safe and approved therapeutic option I endorse a continued duration of nearly 12 weeks of tranexamic acid therapy as acceptable practice. I give this opinion in the light of the knowledge that tranexamic acid has not been shown to increase the venous thrombo-embolism even though the conventional duration of tranexamic acid therapy is given as 5 to 7 days per menstrual period." 1. Those reports were served on the solicitors for the plaintiff on 7 July 2014. 2. In response to the reports of Professor Fraser, Dr Korda prepared a report of 17 July 2014 as follows: "… Having perused Professor Fraser's reports and the attached detailed scientific review which he co-authored, I have the following comments to make. Professor Fraser is a highly respected gynaecologist with extensive clinical and research experience in the investigation and management of abnormal uterine bleeding. I have to agree with Professor Fraser's conclusions that despite a theoretical risk of thrombo-embolic events, there have only been isolated reports of venous or arterial thrombosis or embolism associated with the use of tranexamic acid and as yet a causal relationship has not been definitely established. I do, however, take note of Professor Fraser's additional comments in which he states that the great majority of data evaluated in the using of tranexamic acid were from patients who were only taking the drug for 5 to 7 days per menstrual period. I further take note of Professor Fraser's additional comments that there are no formal studies looking at longer durations of continuous use. I have to conclude therefore that all the evidence presented so far by the various experts on behalf of the defence refer to articles in the use of tranexamic acid on a short term basis. As stated in my previous reports, Ms Smythe was administered tranexamic acid for a period of 12 weeks, that is 84 days, in dosage of 1000mg four times a day, that is 336000mg in total, with no time for the fibrinolytic system to revert to normal. In a sense Ms Smythe was her own experimental model in the prolonged usage of tranexamic acid for abnormal uterine bleeding and, as there is no clinical data to compare her to any other clinical situation, it is difficult to extrapolate that tranexamic acid may not have caused harm and cause the thrombosis. I therefore continue to stand by my previous opinion that in the case of Ms Smythe, who has a history of diabetes, vascular disease and elevated cholesterol, the prolonged 84 day continuous use of tranexamic acid was contraindicated and most certainly the use of tranexamic acid for such a prolonged period will at least be imprudent and in all probability inappropriate." 1. It is clear from other material that the legal advisors of the plaintiff discussed Professor Fraser's reports with Dr Korda. It should also be noted that Mr Dooley of senior counsel had been retained on behalf of the plaintiff. It is not known what part he played in any discussions with Dr Korda. 2. There was no issue that in November 2014 Messrs Carroll & O'Dea advised the plaintiff to discontinue that part of her claim, which related to the defendant prescribing tranexamic acid. The plaintiff accepted that advice and gave instructions to that effect. 3. By letter dated 14 November 2014 (received by the solicitors for the defendant on 20 November 2014) Messrs Carroll & O'Dea advised as follows: "We refer to the reports of Dr Korda and Professor Fraser in this matter. We accept that the plaintiff cannot demonstrate that the prescription of tranexamic acid caused the formation of clot and accordingly we will not be relying upon the reports of Dr Korda in this matter. Accordingly Professor Fraser's reports are irrelevant to the proceedings. We believe that the conclave scheduled to take place with these experts on 17 December should be cancelled…. In terms of the Amended Statement of Claim we therefore advise that the plaintiff will not be relying upon paragraphs 9(b), (d), (e), (k), (l), (n) and (x) in these proceedings." 1. Following receipt of that letter, apart from the filing of a Further Amended Statement of Claim and Amended Defence, the following events occurred: 1. December 2014 – a conclave of vascular, haematology and general experts convened and prepared a joint report. 2. The conclave of gynaecologists fixed for 17 December 2014 was cancelled. 3. On 16 February 2015 the joint report of the liability experts (Drs Dunkley, Kelly, Walker, Hardman and Professor Harris) was filed. 1. For reasons which were not explained, Messrs Carroll & O'Dea ceased acting on behalf of the plaintiff on 10 February 2015. On that same date, the plaintiff retained her present solicitors, Messrs Monaco Solicitors, with Ms Burgan as the partner dealing with the matter. It should be noted that there must have been some problems in the relationship between Messrs Carroll & O'Dea and the plaintiff as early as December 2014 because there was evidence of a discussion between the plaintiff and Ms Burgan at that time. The contents of that conversation are not known except that the plaintiff related part of her history and Ms Burgan regarded the conversation as being in the nature of "an inquiry" by the plaintiff. 2. In her affidavit of 26 February 2015 Ms Burgan said that she received some medical reports from Messrs Carroll & O'Dea on 11 February 2015 and the balance of the file, comprising four large boxes, on 18 February 2015. She then reviewed the whole file. On 19 February 2015 she contacted the solicitors for the defendant and said words to the effect: "I have just received the plaintiff's file today from a previous solicitor. I have reviewed all of the evidence and I have instructions to seek to vacate the hearing date so that I can reintroduce the aspect of the case involving the prescription of tranexamic acid." The Notice of Motion, the subject of this judgment, was filed the following day. 1. Ms Burgan explained the basis for that decision in her affidavit and in evidence before me. 2. She was unhappy with the joint expert report, prepared as a result of the conclave on 1 December 2014, because some matters which would form part of the plaintiff's evidence at trial had not been placed before the experts. It turned out that although some statements had been provided by the plaintiff, she had not provided an evidentiary statement as required by the Practice Note. In addition to that problem, Ms Burgan said that on her reading of the report prepared as a result of the conclave the resolution of the claim as currently pleaded would depend upon whether the plaintiff or the defendant was believed as to what occurred at the consultation on 14 March 2011. It was her opinion that further factual material would need to be placed before the doctors at the conclave who prepared the report. 3. Ms Burgan said that she had reviewed all the evidence relating to the tranexamic acid question and had concluded that this was an issue which required further investigation, further evidence and further questions to be put to experts. She and others in her firm at her direction, had read scientific articles relating to the question. She had consulted a gynaecologist and a haematologist on the question. On the basis of that examination and those consultations, Ms Burgan was of the opinion that the claim based on the administration of tranexamic acid should not have been discontinued and should be again pleaded in the plaintiff's Statement of Claim. 4. Ms Burgan said that despite the undoubted difficulties in establishing causation in respect of the tranexamic acid issue, she proposed to rely upon the provisions of s5D(2) of the Civil Liability Act 2002, i.e. the policy question of whether a court was prepared to consider whether or why not responsibility for harm should not be imposed upon the negligent party. 5. Ms Burgan stated that should an order to vacate the hearing date be made, the following additional steps would need to be taken to prepare the plaintiff's case: 1. Compiling, filing and serving an evidentiary statement from the plaintiff. 2. Further assumptions and questions would need to be put to the vascular surgeons and general practitioners in relation to the case currently pleaded. 3. Further expert evidence would need to be sought from a haematologist and a gynaecologist relevant to causation concerning the use of tranexamic acid. 4. The pleadings would need to be amended to again raise the issue of a breach of duty of care in prescribing tranexamic acid. 5. There would need to be a further conclave of experts to consider the question of breach and causation in relation to the use of tranexamic acid. Submissions 1. The plaintiff put the following submissions. 2. She had suffered a serious injury which has had catastrophic consequences for her and her family. She will incur substantial medical costs into the future, particularly in relation to the need for prostheses. She is entitled to have her case put fully and properly before the Court and not only half her case. The plaintiff has only one opportunity to obtain compensation for her injury and should be entitled to put her case fully. 3. The plaintiff will suffer far greater prejudice if she is not allowed to amend her pleadings than will the defendant. Any delay suffered by the defendant can be adequately met by a costs order. From the plaintiff's point of view, her inability to put the whole of her case may mean that she fails altogether with no further ability to seek compensation. At the very worst, the case would only be delayed for a year and when it next came before the Court, it would be able to be run properly with all relevant issues canvassed. 4. Taking the plaintiff's particular situation into account, the interests of justice favour her being allowed to amend her pleadings and therefore the hearing date being vacated. This was at the heart of the High Court's decision in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175. 5. The need for an amendment to the Statement of Claim, and therefore the vacation of the hearing date, was due to an error in judgment on the part of the previous solicitors, which has been fully explained. The plaintiff, who was entirely dependent upon her previous solicitors and senior counsel for advice, followed that advice in good faith and should not be penalised if that advice were incorrect. Consideration 1. As the plaintiff submitted, the most recent authoritative statement of principle on this kind of issue is that of the High Court in Aon Risk Services. It is, however, useful when considering such questions to keep in mind exactly what the High Court did say. 2. French CJ at [5] – [6] said: "5 In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried. 6 It appears that a factor in the decision of the primary judge and of the Court of Appeal was the decision of this Court in J L Holdings. That case arose out of an entirely different factual setting. However, to the extent that statements about the exercise of the discretion to amend pleadings in that case suggest that case management considerations and questions of proper use of court resources are to be discounted or given little weight, it should not be regarded as authoritative. …" 1. The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "72 The purposes of r 21, to minimise the delay and expense of proceedings, are plainly intended to guide the exercise of discretion in r 502. … 82 The need for amendment will often arise because of some error or mistake having been made in the drafting of the existing pleading or in a judgment about what is to be pleaded in it. But it is not the existence of such a mistake that founds the grant of leave under rules such as r 501(a), although it may be relevant to show that the application is bona fide. What needs to be shown for leave to amend to be given, as the cases referred to above illustrate, is that the controversy or issue was in existence prior to the application for amendment being made. It is only then that it is necessary for the court to allow it properly to be raised to enable a determination upon it. … 90 The overriding purpose of r 21, to facilitate the just resolution of the real issues in civil proceedings with minimum delay and expense, is stated in the rules of other courts in Australia, although those purposes and the obligations cast upon the court and the parties may be stated in somewhat different terms. 92 The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: "Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation". … 94 … Waller LJ, delivering the judgment of the Court of Appeal in Worldwide Corporation Ltd v GPT Ltd, said that such a concern did not pay sufficient regard to the fact that the courts are concerned to do justice to all litigants. Where a party had had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants. 95 The statement of Waller LJ identifies a fundamental premise of case management. What may be just, when amendment is sought, requires account to be taken of other litigants, not just the parties to the proceedings in question. The statement is consistent with what was said in Sali v SPC, which reflected a proper understanding of case management. The statements in J L Holdings do not reflect such an understanding and are not consistent with what was said in Sali v SPC. To say that case management principles should only be applied "in extreme circumstances" to refuse an amendment implies that considerations such as delay and costs can never be as important as the raising of an arguable case; and it denies the wider effects of delay upon others. 96 An important aspect of the approach taken by the plurality in J L Holdings was that it proceeded upon an assumption that a party should be permitted to amend to raise an arguable issue subject to the payment of costs occasioned by the amendment. So stated it suggests that a party has something approaching a right to an amendment. That is not the case. The "right" spoken of in Cropper v Smith needs to be understood in the context of that case and the Rule, which required amendment to permit the determination of a matter already in issue. It is more accurate to say that parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute. Subject to any rights to amend without leave given to the parties by the rules of court, the question of further amendment of a party's claim is dependent upon the exercise of the court's discretionary power. 97 The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in J L Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory. 98 Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. … 102 The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment." 1. The rules to which the High Court was referring in Aon Risk Services are similar to sections 56 – 58 of the Civil Procedure Act 2005. Those sections relevantly provide: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. … 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and … the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case." 1. Applying those sections and the guidance provided by the High Court, I concluded that the plaintiff's application to vacate the hearing date on 9 March 2015 should be refused. Accordingly, I refused the plaintiff's application with reasons to follow. These are those reasons. 2. The consequences of vacating the hearing date, as the plaintiff appreciated at least in part, would be substantial. In many respects, the preparation of the case would need to start again. New reports would be received from doctors not already qualified in the case, e.g. a gynaecologist and a haematologist, which would need to be responded to by those medical practitioners qualified on behalf of the defendant. When the new issues between the parties had been refined, it would be necessary for a further conclave of experts to take place. Apart from the cost and delay, one also needs to take into account the inconvenience to those doctors who had attended the earlier conclave and what, in effect, was the waste of their time in so doing. There would also need to be an additional conclave involving gynaecologists. 3. The application to vacate the hearing date is based largely upon the assessment by Ms Burgan of the prospects of success of the transexamic acid claim. In reaching that conclusion, she does not appear to have had the assistance of senior counsel. She did not consult with any of the doctors already qualified on behalf of the plaintiff, including Dr Korda. While accepting that I have not carried out the additional research and had the consultations to which Ms Burgan has referred in her affidavit and oral evidence, I am of the opinion that the proposed amendment to the Statement of Claim on which the application to vacate is largely based, is problematic. 4. The issue was already considered by competent solicitors and senior counsel, who had been in the matter significantly longer than Ms Burgan. The concern which they had and their motivation for providing the advice which they did, emerges clearly from a reading of the reports of Professor Fraser and Dr Korda. The absence of clinical testing and research in relation to a controversial medical issue can prove fatal to a plaintiff's case. The decision in King v Western Sydney Local Health Network [2013] NSWCA 162 in respect of which special leave was refused by the High Court, illustrates the difficulty. 5. The suggested reliance upon s5D(2) of the Civil Liability Act 2002 is equally problematic. While the High Court has made some passing references to that section, it has yet to apply or interpret it. The references by the plurality (French CJ, Gummow, Crennan and Bell JJ) to s5D(2) in Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [24] – [26] identify the complexities associated with reliance upon the section. 6. I am not persuaded that on the material before me, a proper basis exists for amending the Statement of Claim in the way suggested and for the reasons suggested. Putting the plaintiff's case in relation to the amendment at its highest, all that can be said is that there may be an arguable case after further enquiry and investigations have been carried out. That has to be considered against the background of other competent legal advisors having examined the same question over a substantial period of time and coming to a contrary conclusion. 7. Those considerations are sufficient to dispose of the application. There are, however, other important matters. As was stated in Aon Risk Services, this matter has been listed for 10 days commencing 9 March and there is a Judge available to hear it. To vacate that hearing date, would disadvantage other litigants who could have had their matters listed for those two weeks but have not been able to do so. Even if matters moved as expeditiously as they could, it would be most unlikely that a further hearing date could be found before the middle of 2016. 8. Apart from the simple fact of delay, there is the pressure to which litigants are exposed the longer a case remains unresolved. This applies as much to the defendant as to the plaintiff. In this case, the defendant's professional reputation is at stake. She would be exposed to the worry and anxiety associated with that for another 12 months. There is also the fact that the defendant has cancelled all appointments and medical commitments for two weeks commencing 9 March 2015 in the expectation that the trial would proceed as scheduled. 9. Although the plaintiff quite properly conceded in her motion that she would pay costs if the hearing date were vacated, that may not, in reality, be of much assistance to the defendant. The evidence before me revealed that both the plaintiff and her husband are in receipt of pensions and they live in rented accommodation. It may well be that they are unable to pay any costs order made against them. This is of relevance because the additional costs likely to be incurred in preparing what, in effect, is a substantially new case are likely to be large. 10. There are other matters which militate against granting the plaintiff's application. There has been no explanation for why Messrs Carroll & O'Dea ceased to act for the plaintiff so close to the hearing date. There are the matters referred to by the High Court in Aon Risk Services associated with the courts being publicly funded and the maintenance of public confidence in the judicial system. 11. In summary, the application to vacate has been brought too late. The basis for it is problematic. To grant the application would involve substantial cost and delay in that what is proposed is the bringing of a new case by the plaintiff. The application is the very antithesis of the rationale behind ss 56 – 58 of the Civil Procedure Act 2005 and their interpretation by the High Court in Aon Risk Services. To grant this application would make a mockery of the case management which has taken place over the preceding two years. 12. For the above reasons, I confirm Orders 1 and 2 made on 3 March 2015 as follows: 1. The plaintiff's motion to vacate the hearing date is refused. 2. The plaintiff is to pay the costs of the application before me on 3 March 2015. 1. In the course of the hearing of the motion, it became clear that the plaintiff had not filed an evidentiary statement. One of the consequences was that the full factual basis for the plaintiff's case has not been set out. It was suggested that there were matters which should have been taken into account in the conclave of expert witnesses and which otherwise should be taken account of during the concurrent expert evidence at trial. While this issue is a matter essentially for the trial judge, it is important that any additional factual matters upon which the plaintiff intends to rely are made known to the defendant as soon as possible. 2. It was for that reason that I made a further order which I now confirm: (3) I direct that the plaintiff is to file and serve an evidentiary statement restricted to the issue of liability by 1pm on Friday, 6 March 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2015