Medical negligence

Expert witnesses normally to be jointly instructed to give non-medical evidence - party not to have conference with joint experts absent written consent of other partiesPeet v Mid-Kent Healthcare Trust: CA (Lord Woolf CJ, Lords Justice Simon Brown and Buxton): 5 November 2001The claimant child, who was born suffering severe disabilities, sought damages for medical negligence from the defendant healthcare trust.

The defendant agreed to pay 95% of full liability and it was ordered by consent that the parties should jointly instruct seven non-medical experts to deal with quantum.The claimant wished to hold a conference with those experts in the absence of the defendant.

The defendant objected and Master Ungley ordered that the claimant should not conduct such a conference save with the defendant's written consent.

The claimant appealed.Simon Taylor (instructed by Alexander Harris) for the claimant.

Jane Mishcon (instructed by Bevan Ashford) for the defendant.Held, dismissing the appeal, that the Civil Procedure Rules 1998 (CPR), rule 35.7 permitted the court to require the parties to use joint experts and in medical negligence claims, in the absence of special circumstances, the court should require joint experts to give non-medical evidence; that the framework provided by CPR part 35 in relation to expert evidence was designed to ensure that both sides knew exactly what information was placed before the joint experts, and it would be totally inconsistent with that structure to allow one party to conduct a conference with joint experts in the absence of another party, save with the written agreement of all the parties; that that did not prevent one expert from communicating with another to obtain any information which that expert required to write his report; that, normally, the report prepared by the joint expert should be the evidence in the case on the issues covered by that report and there should be no need for the report to be amplified or tested by cross-examination; that any amplification or cross-examination that did take place should be restricted as far as possible; that the fact that the sums at stake might be substantial did not justify a departure from that general approach; and that, accordingly, the master's order had been correct (WLR).