Protocol Points

Nigel Tomkins in his letter (see [2002] Gazette, 11 April, 18) has misunderstood not only my article but also the personal injury pre-action protocol itself as well as the case of Carlson v Townsend which he quotes.

While the protocol does not expressly require the joint instruction of experts, it clearly does encourage their use.

That is all that my article said.

Paragraph 2.11 of the protocol expressly says that it 'encourages joint selection of, and access to, experts.

Most frequently this will apply to the medical expert'.

That same paragraph goes on clearly to indicate that only one expert will be used.

Further on, paragraph 3.17 says that if the parties cannot agree an expert, they can each instruct their own but 'it would be for the court to decide subsequently, if proceedings are issued, whether either party had acted unreasonably'.The case of Carlson v Townsend was concerned with privilege and the disclosure of medical reports and whether, where parties had acted in accordance with the protocol, the expert simply by that step became a jointly instructed expert with his report thus discloseable.

It is not authority for Mr Tomkins' assertion that 'joint instructions simply should not happen at all'.

Lord Justice Brooke went on in the Carlson case to quote with approval from the Final Report on Access to Justice which said that 'protocols will also be an important means of promoting economy in the use of expert evidence, in particularly encouraging the parties to use a single expert wherever possible'.On this point, one must follow the clear authority of the Court of Appeal in the cases of Daniels v Walker [2000] 1 WLR 1382, CA, and MP v Mid Kent Healthcare Trust [2001] EWCA Civ 1703.

The latter was, of course, decided subsequent to the Carlson case.District Judge Pal Sanghera