Another Expert changes his mind – The effect on the party
The Facts & Issues
The appellant appealed to the Court of Appeal from the decision of a Circuit Judge which upheld an appeal from the decision of the District Judge to refuse to permit the Respondent to rely on a supplementary expert report.
While the Applicant coach driver was employed by the Respondent coach company he underwent a left knee replacement procedure and had six months away absence from work to recuperate.
When he returned to work he was given a manual coach to drive, which meant that he had to operate the clutch with his left foot. That caused him pain and he gave up work.
Very shortly before the expiry of the limitation period he issued a claim against C in negligence and/or breach of duty alleging that C should not have required him to drive a manual coach and/or should have undertaken a risk assessment.
He obtained the opinion of a medical expert and the Respondent also instructed an expert.
The initial somewhat tentative opinion of the Applicant’s expert was that the knee problems could have been caused by his return to work in the circumstances outlined above – however, the Joint Statement prepared by him and the Respondent’s expert witness concluded that the Applicant’s work did not cause his knee symptoms and stated that his work was of a type that somebody could routinely expect to go back to following the type of knee replacement he had undergone.
Tight up against the trial date, the Applicant applied to rely on the report of a different expert, given that his original expert’s current views did not support his case.
The District Judge refused his application to rely on fresh expert evidence and took into consideration:
i) the age of the case
ii) late issue of the application to rely on replacement expert evidence
iii) the additional delay
iv) the additional costs and
v) risk of unfairness resulting from permitting the application, and
vi) the fact that his original expert’s opinion had been only tentative in nature ahead of the joint statement of experts being made.
The Applicant then appealed to the Circuit Judge and was successful but the Respondent appealed to the Court of Appeal against the Circuit Judge’s decision.
i) The Overriding Duty of an expert witness was to the Court.
ii) In the context of case management it was appropriate for an expert to modify his opinion if he had changed his view as that would save time and costs.
iii) If an expert witness considered that he could not support his client’s case he should say so sooner rather than later.
iv) The court was against “expert shopping”, especially as in this case where the Applicant had had a free choice of expert at the outset.
v) The District Judge, when he refused the application, had considered both parties interests properly. He took into account the delays that had already happened, and the significant further expense of producing further replacement expert evidence. The Circuit Judge had overruled the District Judge’s decision on the ground that the Applicant’s case would otherwise fail and took the view that the District Judge had gone beyond his discretion in refusing the application. However the Court of Appeal disagreed and in allowing the appeal it overturned the Circuit Judge’s decision and reinstated the original decision of the District Judge.
A hard case for the Applicant and it has to be said the key view contained in the Joint Statement of the experts might seem somewhat surprising on the basic facts outlined. However, it shows that the resources of the Court need to be guarded with care and “expert shopping” particularly when done well into proceedings will generally not be permitted unless there are compelling reasons to do so. It also shows the gravity of a change of view of a party appointed expert at the meeting of experts stage.
It is a case which gives added weight to the right of an expert to change his view and also the danger for a litigant relying too heavily on a tentative view of an expert when that expert then goes into a meeting with the other side’s expert who presumably may hold views that are by no means tentative.