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Expert evidence

May 2002 New Law Journal p834


Note this article was written in 2002.  Since then the Code of Guidance on Expert Evidence, which is referred to in this article, has been superseded by the Protocol for the Instruction of Expert Witnesses in Civil Claims.  However the case law summarised in this article still applies and many of the provisions of the Protocol are similar to those of the former Code.


On 20 December 2001 Lord Phillips, the Master of the Rolls, announced the publication of The Code of Guidance on Expert Evidence [i] produced by a working party set up by Lord Scott of Foscote, when he was Head of Civil Justice.  The Code clearly and simply sets out good practice in the instruction of experts in litigation and explains how such experts should work.  It summarises the contents of CPR Part 35 and its Practice Direction and reflects the spirit of the Civil Procedure Rules – a spirit which could be embodied, at least in the county court, in the mantra “Be reasonable, but be reasonable quickly and cheaply.”


The Code sets out the practice already adopted by the best solicitors and experts.  It is though vital reading for those solicitors who do not instruct experts on a regular basis or who have not yet taken fully on board the important changes introduced by the new regime.  There is also much to be said for solicitors sending a copy of The Code with their instructions whenever they instruct an expert.


The purpose of this article is to examine some of the provisions of The Code against the background of recent court decisions.


Single Joint Experts

The appointment of a single joint expert (CPR 35.7) was one of the major innovations of the Woolf reforms.  Paragraph 35 of The Code states that the spirit and letter of CPR 35.7 and 35.8 call upon parties to consider the appointment of a single joint expert from the outset.  The Code encourages this when the sums involved are not large and the issues are not complex.  This reflects the Court of Appeal decision in Daniels v Walker [2000] 1 WLR 1382, CA where Lord Woolf MR said  “one starts. . . from the position that, wherever possible, a joint report is obtained.”   The Queen’s Bench Guide at para 7.9.6 provides that it is not “a sufficient ground for objecting to an order for a single joint expert that the parties have already chosen their own experts”.  There is a similar provision in the Chancery Guide (para 4.12).


The Court of Appeal again considered the appointment of single joint experts in the important case of P (a child) v Mid Kent Area Healthcare NHS Trust [2001] EWCA Civ 1703, [2002] 1 WLR 210.  Lord Woolf, LCJ, giving the judgment of the court, said that the scale of litigation over medical mishaps was a matter of considerable concern.  He pointed out that costs can be extremely high and that such litigation tends to be particularly adversarial.  Non-medical expert evidence should be restricted as much as possible.  The Court of Appeal held that in clinical negligence claims, unless there are special circumstances, non-medical expert evidence should be provided by the report of a single joint expert.  To have contested issues over non-medical expert evidence makes litigation disproportionate.  It does not help the parties.  It causes cost, stress, anxiety and delay and has an adverse effect upon resources of the Health Service.


However there is no presumption in favour of single joint experts on medical issues in clinical negligence cases where there are different schools of thought.  Oxley v Penwarden [2001] Lloyds Rep Med 347, CA was a clinical negligence case where it was claimed that there was a failure to diagnose a vascular condition in the claimant’s leg that lead to amputation.  At a case management conference there was a direction for the appointment of a single joint medical expert.  There was a successful appeal against that direction.  The denial of the opportunity to commission separate expert reports in a case where different schools of thought might exist would require the court, in the absence of agreement, to choose a given school of thought by appointing a particular expert.  That would effectively decide the issue of causation without any opportunity for challenge.


Permission for parties to instruct their own experts

Paragraph 36 of The Code points out that the appointment of a single joint expert does not prevent a party from instructing his or her own expert to advise.  However, as the Court of Appeal made clear in Daniels v Walker [2000] 1 WLR 1382, CA, it is only as a last resort, after written questions have been answered by a single joint expert, that the court should allow evidence to be given by an expert instructed by one side.  In Daniels v Walker , Lord Woolf MR said

In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.


In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report. . . .


In a case where there is a substantial sum involved, one starts . . . from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert's report. If questions do not resolve the matter and a party, or both parties, obtain their own expert's reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The expense of cross-examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.


This approach is illustrated by Avery v

Gough Cardiff County Court
[2001] 2 CL 38, a road traffic case where the claimant suffered a spinal injury.  The claim was worth over £50,000.  The parties obtained a joint expert’s report from a consultant orthopaedic surgeon.  Rather than put written questions to the expert, the defendant’s insurer sought a stay until the claimant had been examined by the defendant’s own expert.  That application was refused by a deputy district judge. The defendant’s reasons for seeking to instruct the new expert were fanciful.  A suggestion of pre-existing problems was not borne out by medical notes.  It was not appropriate to instruct a new expert before asking questions.


Further guidance was given in Cosgrove v Pattison (2001) Times February 13, a case involving a boundary dispute where a single joint expert had prepared a report.  A circuit judge refused an application by one party to permission to call their own expert because of perceived bias on the part of the single joint expert.  On appeal, Neuberger J gave a non-exhaustive list of factors to be taken into account when considering an application to permit a further expert to be called, namely;

·        the nature of the issue or issues;

·        the number of issues between the parties;

·        the reason the new expert is wanted;

·        the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance;

·        the effect of permitting one party to call further expert evidence on the conduct of the trial;

·        the delay, if any, in making the application;

·        any delay that the instructing and calling of the new expert will cause;

·        any other special features of the case; and

·        the overall justice to the parties in the context of the litigation.

He held that the judge was right to reject the suggestion of perceived bias but allowed the appeal because the appellants had obtained a report from a new expert which called into question some of the conclusions reached by the single joint expert.


Written questions to experts

The norm is for the court to allow written questions to be submitted to experts, as provided for by CPR 35.6(2), and PD35 para 4.1.   These provisions are discussed in paragraph 24 of The Code which is very closely based on CPR 35.6.  In Mutch v Allen [2001] EWCA Civ 76 (22 January 2001), there was a claim by a back seat passenger in a car.  He was thrown out of the car as a result of a road traffic accident.  It was a “heavy case” where the claims for special damages and future loss exceeded £500,000.  A district judge ordered both parties’ experts to answer questions on their reports.  The defendant was particularly interested in submitting written questions to the claimant’s expert who noted that the claimant was not wearing a seat belt, but did not state what the consequences of that might be.  The district judge’s order was reversed by a circuit judge and replaced with an order that experts give evidence at trial and be available for cross-examination.  The circuit judge’s order provided that the defendant could not rely upon answers already given by claimant’s expert, inter alia that the “injuries would have been far less severe had he been restrained by an effective seat belt – on the balance of probabilities he would not have suffered the very severe fracture of the pelvis.”


The case came before the Court of Appeal as a second appeal.  The original order was upheld by the Court of Appeal.  The circuit judge had overlooked the essential reform sought to be achieved by CPR 35 -

This new regime is designed to ensure that experts no longer serve the exclusive interest of those who retain them, but rather contribute to a just disposal of disputes by making their expertise available to all.  The overriding objective requires that the court be provided with all relevant matter in the most cost effective and expeditious way.

Simon Brown LJ said that this was exemplified by CPR 35.11 which allows one party to use an expert’s report disclosed by the other party even if not being called by the other party.  He continued

. . . there can be no possible basis upon which [the claimant’s expert’s] views, expressed [in answer to the defendant’s questions] should be excluded from evidence.


In P v Mid Kent Lord Woolf stated that the ability to require experts to answer written questions should normally mean that there is no need for single joint experts’ evidence to be amplified or tested by cross-examination. The fact that the sums at stake may be substantial does not justify a departure form this approach.  Much the same point was made in Popek v National Westminster Bank [2002] EWCA Civ 42 (21 January 2002), a case involving a report by an expert in the provision of small business finance, where Dyson LJ said that if the claimant wished to challenge the single joint expert’s conclusions on the basis that they had no proper grounding in fact, his solicitors should have addressed this point in their written questions.  Dyson LJ added that if a single joint expert is (unusually) to be subject to cross­examination, then he or she should know in advance what topics are to be covered.


Conferences with experts

In P (a child) v Mid Kent Area Healthcare NHS Trust, Lord Woolf referred to the framework of the Civil Procedure Rules whereby both sides should know what information is placed before the single joint expert.  Paragraph 25 of The Code states that parties and their lawyers should seek to reach agreement and clarify issues by conferences or discussions with experts.  How should that work in practice?  Paragraph 40 of The Code provides that single joint experts should not communicate with or meet either party independently of others.  This was confirmed in P v Mid Kent .  Lord Woolf stated that a joint expert should not attend a conference with only one party to the litigation, unless all parties had first given their consent.  He said that such a practice was contrary to the whole concept of the appointment of a single joint expert.  It was also inconsistent with the expert’s duty to both parties and to the court.  A similar conclusion was reached by HHJ Nicholls sitting as High Court Judge in Smith v Stephens, 15 May 2001, QBD (Birmingham District Registry – available via New Law).


Paragraph 27 of The Code provides that lawyers will not normally be present at conferences of experts.  If they do attend, they should normally only intervene to answer questions put to them by experts or to advise about the law.  The presence of lawyers at discussions between experts was considered by the Court of Appeal in Hubbard v Lambeth, Southwark and Lewisham HA [2001] EWCA Civ 1455, (2001) Times October 8, a clinical negligence case.  A master ordered a private pre-trial meeting of expert witnesses in accordance with CPR 35.12.  The aim was to limit the medical issues which needed to be decided at trial.  The claimant’s solicitors were worried that in the absence of legal representation their client might be “sold down the river” by pressure from the expert’s professional colleagues.  They said that the claimant’s experts might “pull their punches” and that it would be difficult for the claimant’s experts to attend a meeting at which a pre-eminent colleague’s professional competence would come under the microscope. 


Tuckey LJ, giving the principal judgment of the Court of Appeal, said that in this case it was not right to have lawyers present.  As there were experienced solicitors “One can confidently expect that the agendas will be drafted so the tasks which the experts have to perform  . . . will be clearly set out.”  The claimant’s objections were answered by the Defendant’s concession that the meeting would be taped – that would expose any inappropriate representations.  CPR 35.12(4) and (5) provided additional safeguards in that the content of such meetings cannot be referred to at trial without agreement between parties and that any agreement between experts on issues is not binding unless parties agree. Tuckey LJ stressed the importance of having the “cards on the table” and said

 . . . in almost every case experts are able to narrow the issues to be determined at trial, even in very complex cases.  The time and cost benefit which flows from this is obvious . . . . even if both parties object to a meeting, the court is not prevented from making an order and should do so if it thinks that something will come of it . . . The mere objection of one party will not be sufficient.  Some very good reason for not having a meeting would have to be shown.

There was no question of such a meeting being a breach of ECHR Article 6(1).  Hale LJ, drawing on her experience from the Family Division, suggested exploring the possibility of appointing an independent person to chair such meetings.


Late service of experts’ reports – relief from sanctions

Paragraph 5 of The Code points out that experts should be aware that failure to comply with the rules or court orders or any excessive delay may result in the party who instructed them being penalised in costs and even, in extreme cases, being debarred form placing expert evidence before the court.


CPR 3.9(1) does however give the court power to grant relief from sanction.  Meredith v Colleys Valuation Services Ltd [2001] EWCA Civ 1456 was a professional negligence claim against surveyors.  The claimant’s case was that the property was worth £70,000 less as a result of defects not spotted.  The Defendant denied liability but maintained that the difference in value was only £7,500 to £10,000 less.  A case management conference provided for service of experts’ reports by a specified date, but no “unless order” was made.  The second defendant experienced difficulties in obtaining instructions because his professional indemnity insurer went into liquidation.  The second defendant served a draft of his surveyor’s report on time, but was two and a half weeks late in serving his valuer’s report.  It was served just over a month before trial.  His solicitors made an application for relief from sanctions, but this was dismissed.  They appealed successfully to the Court of Appeal.  In an application for relief from sanctions, the court should consider all the circumstances specified in CPR 3.9(1) (Bonsal v Cheema 2 March 2000, CA, unreported).  In Meredith the judge failed to consider the prejudice to the second defendant if the  extension sought was refused.  He also failed to note that there was no unless order and the delay was short.  The trial date could still be kept and the claimants still had time to deal with the report even though their own expert was on holiday for two weeks.  The availability of an order for costs against the second defendant was an alternative sanction which should have been imposed.


            A similar conclusion was reached by the Court of Appeal in Rawlinson v Matthew [2002] EWCA Civ 392 (11 March 2002)  where a district judge had refused the claimant permission to rely on a report from a third medical expert dealing with the life expectancy of the claimant, who had sustained a severe brain injury as a result of a road traffic accident.  The claimant’s initial expert gave a life expectancy of 70.  The defendant’s expert gave a life expectancy of 60.  The claimant’s second expert produced a report which referred to published papers on life expectancy and their application to the claimant's case.  He gave a life expectancy of 75 or 76, or perhaps longer.  His final report was not lodged with the court until part way through an adjourned case management hearing.  A district judge refused permission to rely upon the further report the because "it was too late in the day . . . . and came to light part-way through the hearing".  Mitting J allowed the claimant’s appeal.  The report “introduced, for the first time, an element into the assessment of life expectancy which had not previously been there", namely "statistical evidence, drawn mainly from spinal injuries cases, which would suggest what the life expectancy of someone who whom a good standard of care was available, might be."  The Defendant’s second tier appeal was dismissed.  The judge was not only entitled to, but was also right to have reached the conclusion that life expectancy could not be resolved without the second report.  The Defendant was ordered to pay costs on the indemnity basis.  (For another case involving late production of experts’ reports on life expectancy, see Hanley v Stage and Catwalk Ltd [2001] EWCA Civ 1739 (7 November 2001) and for a recent case on late service of an expert’s report on quantum, see R C Residuals Ltd v Linton Fuel Oils Ltd (2002) Times May 22).


This article is an edited version of my contribution to a seminar on organised by the Expert Witness Institute and hosted by Denton Wilde Sapte.

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[i] Now superseded by the Protocol for expert witnesses in civil claims.