The Facts

The Claimant brought a claim for damages against the defendants for a serious, mechanical engine failure in his car. The critical issue between the parties was the cause of the engine failure. The Claimant asserted against the garage (the 1st Defendant) that the fault lay with poor servicing; and against the manufacturer (the 2nd Defendant) that there was a design fault in the engine. The Defendants contended that the engine had failed because it had been over-filled with oil.

A single joint expert was instructed to report to the Court on the cause of the engine failure. The Claimant concluded that the report of the Single Joint Expert (“the SJE”) was flawed, that the SJE lacked sufficient expertise, and that she was biased. The Claimant therefore applied for permission to call his own expert witness, and for the single joint expert to be dis-instructed. The Claimant produced a report which doubted the SJE’s technical expertise and reasoning in support of the application. The judge at first instance rejected the application.

The Claimant appealed to Eady J. The appeal was advanced on four separate grounds.

The first was that the judge had applied the wrong test as to whether a party would be allowed to call his own expert, despite a prior order for an SJE. Eady J examined the cases, starting with Lord Woolf MR’s judgment in Daniels v Walker [2000] 1 WLR 1382, and held that the authorities showed that requirement was simply for the applicant to show a “good reason” for instructing his own expert. That would depend on the facts of each case. Since the judge at first instance had misunderstood those authorities as imposing a higher requirement, and refused the application on the basis that permission would only be granted in an “exceptional case”, that afforded a good reason to allow the appeal.

Eady J also had regard to Lord Woolf MR’s judgment in Peet v Mid-Kent Healthcare Trust (Practice Note) [2002] 1WLR 2010, in which the CA had held that permission to a party to call its own expert would be more readily granted if the issue dealt with by the SJE was central to the case. That was the position here, and the judge had not given sufficient weight to that factor.

Eady J rejected the second ground (bias). The SJE was experienced and acted for both claimants and defendants. The fact that she had been instructed by the defendant previously was not a ground for alleging bias.

The third ground was that the judge at first instance had erred in rejecting the criticisms of the SJE made by the Claimant’s proposed new expert. Eady J noted that the judge had dealt with these in detail, but that on balance they should be a matter for the trial judge after hearing both experts cross-examined. In doing so, Eady J applied what in Kay v West Midlands HA (unrep.), HHJ MacDuff QC had called the “balance of grievance” test, and decided that the importance of the claimant being able to advance a case on the basis of expert advice he considered acceptable was greater than the inconvenience to the defendants having to deal with another expert.

The last ground was that the judge at first instance, applying comments made in Dennis v Walker, had decided that it would be inappropriate to permit the claimant to call a further expert because the case was not “substantial” in value. Eady J rejected this approach, holding that Lord Woolf MR’s comments in Dennis v Walker were not intended to lay down a mandatory set of principles, and that “substantial” would not always mean “substantial in value.”

In the circumstances, the appeal was allowed, and the claimant was permitted to call his own expert.

Comment

This case provides a very useful review of the authorities as to when a party will be permitted to call his own expert, an order for an SJE notwithstanding. The overall emphasis is that such permission is to be granted if it is fair and just in all the circumstances, which is surely the right test (even if it does not provide much guidance for future cases). Eady J appears to have paid particular attention to the fact that the proposed expert to be called by the claimant was able to give a report setting out a detailed critique of the SJE’s approach. Even though Eady J considered that the proposed expert’s approach might be criticised as “academic” the availability of such a critique appears to have weighed significantly in the balance. That, at least, is useful practical guidance as to how an expert can persuade the court that he should be allowed to provide a report on behalf of a party wishing to call him.

The criticisms based on apparent bias on the part of the SJE (or rather lack of such bias) are also interesting. Eady J had no difficulty dismissing this ground of appeal, and indeed did so in rather summary terms. That is consistent with the robust approach that the courts usually take to allegations of bias, and the very high burden of proof that such applications normally bear. The facts here (which appear to have been simply that the expert had been instructed by the defendants in the past) were not nearly enough to establish bias.

The B submitted that the judge erred in applying the wrong test when deciding whether the single joint expert should be disinstructed;

(2) dismissing S’s concerns regarding the technical inadequacy of the single joint expert’s report and his alleged lack of expertise;

(3) assessing the instant litigation as not being sufficiently “substantial” to justify dispensing with a single joint expert.

HELD

(1) In contrast to Kay v West Midlands Strategic Health Authority, the expert evidence in the instant case went to an issue which was far from peripheral, namely the cause of the engine failure. It was fundamental to the resolution of the dispute between the parties and was technical. The judge allowed himself to become too focused on the “exceptionality” test attributed to the judge in Kay, namely whether or not the circumstances were so exceptional as to justify departing from the normal course of appointing a single joint expert, without making sufficient allowance for the fact that, unlike in Kay, the issue in question was not peripheral (see paras 18, 20 of judgment).

(2) S’s concerns about the single joint expert’s expertise might be proved wrong on closer examination, but B’s sense of grievance would be understandable if he had to go through a trial of the critical issue on liability while still being barred from having the relevant points properly investigated (paras 24, 27).

(3) It was impossible to provide a bright line boundary between cases that were “substantial” and those which were not. In any event, whether or not litigation was substantial could not be determined solely by reference to the amount claimed. Issues raised in litigation might be important to the parties or the public generally for a variety of reasons other than financial considerations. The judge thought it appropriate to decide whether it was a “substantial” case, and having decided that it was not, he treated it as a significant factor in refusing B’s application. Although it was a relevant factor, it should not have assumed such importance (paras 28-29).

(4) The judge should have allowed S’s evidence because it was technical and not peripheral. That was what the overriding objective required, whether the judge assessed the value of B’s claim as substantial or not (para.29).

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.

The 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.

Comment

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.

[2011] EWHC 3980 (QB) TEDR Volume 17 Issue 2

The Facts

The Applicant (the NHS Trust) applied for Summary Judgement on certain outstanding issues in a clinical negligence claim brought by the Respondent (Mr Wright).

The Respondent had had severe acute pancreatitis. The Respondent had an operation as a result which was called a “pancreatic necrosectomy” which meant that a surgical incision was left intentionally open when the surgery was concluded. In due course an attempt was made to fit a new laparotomy bag to the wound in place of the bag that had been fitted some days following the surgery. However, the original bag proved to be difficult to remove and between a relatively small (but clearly visible) amount of the original bag was left behind unremoved. Around a fortnight later the remaining piece of the original bag was eventually removed.

The presence of the remainder of the original bag had caused a sinus wound discharge. The NHS Trust admitted breach of its duty of care to the Respondent in this regard, and also that its conduct had been the cause of a sinus wound discharge. A Consent Order was agreed and judgement entered in relation to that particular issue and it was provided that damages were to be assessed.

The Respondent, however, had raised additional and serious allegations, which included that the surgery had been undertaken without his consent; had been unnecessary; and was surgery which was “barbaric” and “experimental”. All of those assertions were denied by the NHS Trust.

The Respondent had wanted to rely on a report of a specialist consultant surgeon in circumstances where that surgeon had withdrawn from acting for the Respondent, and had made it clear that he was not willing to give expert evidence on his behalf.

The position arose that the Respondent had been debarred from relying on all expert evidence because he had not been able to obtain a new expert by the date ordered by the Master who dealt with the timetable for the conduct of the case.

The Respondent had failed to make any application to vary or set aside the Master’s decision to make a debarring order within the time limit set by the Master (or even outside that time limit). The Respondent applied to the High Court judge for an adjournment to allow for the appointment of a replacement expert witness. The Respondent provided a letter from a prospective expert witness who stated he had seen the Respondent and was willing to act as his expert witness.

The Issues

First, should an adjournment should be granted to allow a fresh expert’s report to be prepared? and secondly, did the Respondent’s case stand a real prospect of success at trial?

The Decision

The High Court judge held that the new expert’s letter did not give his opinion (even provisionally) on the Respondent’s case and did not deal with the new expert’s availability to give evidence at trial. The Court considered that the Respondent’s proposal was simply “too little, too late”.

An application by the Respondent to challenge the Master’s decision not to allow him to rely on the original expert’s report had been dismissed and there had been no application within the time limit laid down by the Master to vary or set-aside that order.

It was decided to be much too late to make such an application in circumstances where the trial was to take place imminently (being in three days time).

The only potentially available evidence to support the allegations of clinical negligence was in the original expert’s report. The High Court judge then assumed for present purposes that that report would be admitted at trial and posed the question of whether that report, if put in evidence before the court, would mean that there was a real prospect of success on the outstanding issues.

The judge decided that even if the original expert’s report were to be placed before a trial judge, the Respondent’s case had no real prospect of success.

The Court took into account the fact that the original expert witness would not be giving evidence on oath in court, and so he would not be tested by cross-examination in the witness box and hence his evidence would not be as strong as evidence tested under cross examination.

The Court considered the Overriding Objective set out in the Civil Procedure Rules that it was to deal with cases justly, fairly and expeditiously having regard to the availability of court resources and whilst it expressed certain regret at its decision in the light of the Respondent’s personal plight, it found that there was no real prospect of success on the outstanding issues for determination and so gave summary judgement to the NHS Trust.

Comment

One might perhaps have expected some latitude of an adjournment to allow the new expert urgently to provide the details which the court commented that had not been provided in his letter – i.e. (a) as to his opinion on the merits of the case (even on a preliminary basis to be expanded in a later detailed report) and (b) to give his dates of availability. However it seems that the trial judge had formed a very pessimistic view on prospects of success, was mindful of the imminent trial date and evidently wished to put the Respondent’s case out of its misery.