NO: B3/2001/1611
Neutral Citation Number: [2001] EWCA Civ 1519
IN THE SUPREME COURT OF JUDICATURE           
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE of.
QUEEN'S BENCH DIVISION
(MR RECORDER STUART BROWN QC)
 
                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                          Wednesday, 3rd October 2001

B e f o r e :

LORD JUSTICE BROOKE

and

LADY JUSTICE HALE

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LAURA ANN MAY SMITH (by her Mother, Jane Ann Brown)
(Respondent)

and

NEWCASTLE HEALTH AUTHORITY
(Appellant)

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HG
Telephone No: 0171‑421 4040 Fax No: 0171‑404 1424
(Official Shorthand Writers to the Court)
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MR T COGHLAN QC (instructed by Ward Hadaway Solicitors, Sandgate House, 102 Quayside, Newcastle upon Tyne NE1 3DX) appeared on behalf of the Appellant
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
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J U D G M E N T
 Wednesday, 3rd October 2001

1.	LORD JUSTICE BROOKE: This is a renewed application for permission to appeal against a judgment of Mr Recorder Stuart Brown QC sitting as a deputy High Court judge at Newcastle upon Tyne on 4th July 2001.
2.	The case was concerned with the period immediately before the birth of a child who was diagnosed to have suffered brain damage due to partial hypoxic ischaemia. The issue was whether the defendant hospital had been negligent in their care of the mother. It was common ground that there had been a period of excessive administration of oxytocin during the pre‑birth period.
3.	The oddity of the case was that the child's Apgar score at birth was inconsistent with a conclusion that the baby had been damaged by hypoxia only a few hours before the child was born. The child's pH score, when the blood/gas level was analysed very shortly after her birth, was also found to be higher than would have been likely if the excess oxygen shortly before birth had caused the damage. There was agreed expert evidence that the hypoxic‑ischaemic episode had occurred probably within the three days leading up to the birth.
4.	In a very careful judgment the Recorder reached the conclusion that on the balance of probabilities there had been an intra‑uterine recovery, which was theoretically possible although there was no incident of such recovery documented in the medical literature, which had led to the Apgar score and the pH score immediately after birth being what were found.
5.	Mr Coghlan points out that in two material matters the judge had misread the evidence. The first was that the judge had thought that the last administration of an epidural block was at 3:15 am, whereas the hospital notes showed that there had been two further administrations. Secondly, he overlooked accepted evidence by an expert about the frequency of contractions in the period immediately before birth. During that period the hospital notes about the mother's condition were lacking. The judge placed emphasis on the evidence the mother had given about her condition in the final stage of labour, which lasted for the time between 9:00am and 9:30am and the time of the child's birth at 10:55am.
6.	As I have said, it was a careful judgment by the Recorder. The Recorder refused permission to appeal on the basis that this was, in the last resort, a finding of fact based on the evidence of witnesses and expert witnesses whom the Recorder had seen. Mance LJ refused permission to appeal on paper. He said that the grounds of appeal and skeleton argument did not persuade him that the applicants had any real prospect of success, or had suggested any other compelling reason for an appeal. The issue was one of fact. After considering points of detail in the judgment he said that he could see no prospect that the ultimate decision would, on that basis, have been or should be different.
7.	In view of the rarity of the event, and the fact that the judge appears to have misdirected himself on the effect of two material pieces of evidence I would, for my part, be disposed to grant permission to appeal. This is not to say that I consider that the appeal has any strong prospect of success. But at this stage we are only concerned with the threshold explained by Lord Woolf, MR, in a different context in Swain v Hillman that we should refuse permission if we think the prospect of success is only fanciful. Mr Coghlan has persuaded me that this proposed appeal does not fall into that low category.
8.	For this reason, with some hesitation, I will grant permission to appeal.
9.	LADY JUSTICE HALE: I agree, sharing hesitation.
(Application granted. Costs in the appeal)
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