The second case dealing with the proper approach to applications under r. 35.1 is Nuemann v Camel  LTL 29/10/15.
In this case, the claimant had been injured in a road traffic accident caused by the defendant’s negligent driving and liability was not disputed. The claimant had a pre-existing condition, osteogenesis imperfecta, which had caused her bones to fracture as a teenager. She had been discharged from hospital on the same day as the accident, but her case was that two weeks later, as a result of the accident, her condition deteriorated and she became disabled and wheelchair bound. She had previously lived in a first floor flat, but claimed to need single-storey housing and therefore made a claim for accommodation costs.
At a case management conference she applied for permission to rely on the expert evidence of an architect in respect of those costs. The claimant’s medical records revealed that over a year before the accident she had applied for disability living allowance and to be re-housed in ground floor accommodation on the basis that she needed a walking stick, found stairs difficult and could not walk more than ten meters without pain. The outcome of the application to be re-housed was unknown and it was unclear whether the claimant’s symptoms had continued until the accident.
The Master held that expert evidence on accommodation was not reasonably required as he could not see any real likelihood of accommodation needs arising as a result of the accident. The claimant appealed.
On appeal, the defendant submitted that case management decisions should only be overturned if they were plainly wrong, that the Master had not been required to give a detailed judgment and that his decision had been well within his case management discretion.
The appeal was allowed. It was held by Jay J,
While the defendant’s submissions were attractive, they could not be accepted. The Master’s decision had been made in the context of a case management conference, but it was not a discretionary case management decision. The Master had applied a sort of Part 24 Summary Judgment test.
The claimant’s case was complex, had unusual features and had baffled some of the experts. It was impossible to reach conclusions about medical evidence which had not yet been tested. The court could only reach preliminary views and impressions.
There might be circumstances in PI litigation where the court could say under CPR Pt 35 that expert evidence was not required because a claim had no prospect of success, but they were rare. The claimant’s case depended on the court’s assessment of the credibility and reliability of her evidence, and other evidence which had not yet been tested.
The accommodation claim could not be advanced without expert evidence.