Keeping Protocol

DJ Pal Sanghera has misunderstood the personal injury pre-action protocol exactly as the defendant side did in the case of Carlson v Townsend (see [2002] Gazette, 25 April, 18).

The protocol encourages the joint selection of and use of medical experts.

Joint selection and joint instruction are two different things, as the court made clear.

The difference is crucial on the privilege issue.

I quote Lord Justice Simon Brown.

'Although the Protocol plainly encourages and promotes the voluntary disclosure of medical reports, it does not specifically require this.....The Access to Justice, Final Report, July 1996, states with regard to this part of the protocol: 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.' Joint instructions would prevent this.

Carlson is indeed authority for the assertion that 'joint instructions simply should not happen at all'.

There is concern over the claimant's retention of privilege.

Joint instructions abandon privilege.

That is why they should not happen in a case running under the protocol.

The protocol is an important means of promoting economy in the use of expert evidence use and a single expert wherever possible.

However, with medical experts, the difference between jointly instructed and jointly selected is vital and deliberate.

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