Instructive advice

District Judge Pal Sanghera's article 'One expert or two' (see [2002] Gazette, 28 February, 33) suggests joint instruction of medical experts underpins the pre-action personal injury protocol.

This is wrong.

The article ignored the leading case on this, Carlson v Townsend, CA [2001] EWCA CIV 511.

The Appeal Court consulted the final report of the Civil Justice Review and relied on it to give a purposive interpretation on the protocol.

Lord Justice Simon Brown said: 'Jointly selected the expert in a real sense has been; jointly instructed, however, he is not.'

The final report states: 'The group has also been able to agree a protocol for instructing experts which provides that the claimant's solicitor may, in the first instance, put forward more than one expert's name.

The defendant may indicate that one or more of these is unacceptable.

Provided at least two names are acceptable to both parties, the claimant may reject a report by the expert of his first choice without letting the defendant know that he has done so.' I was a member of the working party myself and the interpretation in Carlson was always our intention.

If a claimant's solicitor agrees to joint instructions the claimant cannot claim the report is privileged because clearly it is not.

That was not the intention of the protocol.

This was the view of the Court of Appeal.

Joint instructions simply should not happen at all.

Nigel Tomkins, associate Professor of civil litigation, College of Law