Personal injury law

Limitations on expert evidenceM P v Mid Kent Health Care NHS Trust, CA, 5 November 2001 (Lord Chief Justice, Simon Brown, and Lord Justice Buxton)In Daniels v Walker [2001] 1 WLR 1382, Lord Woolf permitted the defendant to obtain his own occupational therapy report, having been dissatisfied with the jointly instructed expert.

The real issue in that case was not whether the defendant was permitted to call the additional evidence of an occupational therapist, but rather, should they raise questions of the joint expert before doing so.

In his judgment, Lord Woolf identified the process that solicitors ought to follow in relation to expert evidence.

In brief, it is as follows:l The instruction of a joint expert by the parties is the 'first step'.l Once the report is prepared, if there are any areas of concern questions should be raised of the expert within 28 days.l If, for 'reasons which are not fanciful' one of the parties wishes to then obtain their own report, subject to the court's discretion this should be permitted.l Upon receipt of the additional report, the experts should meet and produce a joint statement of issues.l As a 'last resort' oral evidence from the experts should be given at trial.In smaller value cases the instruction of a further expert may be 'disproportionate'.In Cosgrove and another v Pattinson and another, (2001) TLR, 13 February, Mr Justice Neuberger, in looking to achieve justice between the parties, asked whether refusal of leave to obtain one's own report lead to 'an understandable and objective sense of grievance' on the part of the party refused?Therefore, one could be forgiven for expecting Lord Woolf, in the instant case, to follow closely the approach he advanced in Daniels when hearing the claimant's application.

In this clinical negligence case joint non-medical experts were appointed.The claimant wanted a conference with one of the experts in the absence of the legal representatives of the defendant, which was refused by the Master.

The Court of Appeal unanimously upheld the Master's decision.

In answering the question 'when, if at all, should one party without the consent of the other party, be permitted to have sole access to a single joint expert?' Lord Justice Simon Brown said 'never'.

Of further concern is the inference that cross-examination of a single joint expert may not be permitted said Lord Woolf: 'the assumption should be that the single joint expert's report is the evidence.

Any amplification or any cross-examination should be restricted as far as possible'.Therefore, one can deduce that the Court of Appeal, in contrast to the approach adopted in Daniels in which the expert was also 'non-medical', is now being more limiting in allowing the production of such expert evidence stating that 'the court should be slow to allow a second expert to be instructed'.

One suspects that the test identified in Daniels of 'reasons that are not fanciful' will no longer stand up.

Also of concern is that even with a cerebral palsy case in which the damages will have been substantial, proportionality is repeatedly raised in respect of expert evidence, which again contrasts with Daniels.

Lord Woolf clearly wishes to limit, where possible, expert evidence to a single written report with no attendance by the expert at trial.

Indeed, Lord Justice Buxton dismissed the 'scepticism about the efficacy of written procedure'.

Lastly, Lord Woolf had a political pop at the costs of clinical negligence cases as such litigation 'has an adverse effect upon the resources of the health service'.We must beware.

Non-medical experts will rarely be permitted other than by joint instruction.

How long before the majority of medical experts are equally restricted because, other than in clinical negligence cases, the courts believe that unnecessary costs are being incurred in having two experts in orthopaedics, psychiatry, neurology, etcetera? The day of the paper trial is, perhaps, not too far away.

By Simon Allen, Russell Jones & Walker, Sheffield