David Marshall, Partner
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One of the key aims of Lord Woolf’s civil justice reforms was to get rid of the ‘hired gun’ expert culture. Before the CPR, in even the smallest claim both sides would instruct one or more medical experts who would often vehemently disagree, usually, it was perceived, siding with the party instructing them. I think that most practitioners on both sides would agree that the CPR changes relating to expert evidence have by and large greatly improved things. In most Fast Track cases one expert is usually relied upon. And with a few exceptions, the ‘hired guns’ have largely disappeared (or at least reformed).
However, it has always worried me that in a personal injury trial in the Fast Track (and some multi-track cases where the expert evidence is agreed) even where the only live issue is quantum, substantial awards of compensation have to be decided without a doctor in sight. And the appeal courts have recently had to deal with the perhaps inevitable consequences.
It is, of course, important to read the expert’s report and make sure you understand it and, if not, to ask him to clarify it before trial. In Chambers v Excel Logistics Limited [2006] EWCA Civ 1031 liability was admitted and the sole orthopaedic expert did not give oral evidence at the quantum trial. He said in his report that “it is impossible to be precise but I would suggest an acceleration of three years.” However, he concluded “That is to say, had the accident not occurred his symptoms would have reached the present level in three years from the time of the accident”. This was at best ambiguous, and, as the Defendant argued, appeared to suggest that the accident had no effect whatsoever. The Court of Appeal set aside the judgment and ordered a re-trial, commenting that “given the divergence as to the interpretation of [the expert’s] evidence, made plain to the judge at the outset of the matter below and at the heart of this appeal, it is unfortunate that he was not asked to clarify at or before the hearing what he meant, either by a further short written report or in oral evidence.”
Similarly, in Woolley v Essex County Council [2006] EWCA Civ 753 liability was again admitted and an employment expert was jointly instructed to give evidence on the earnings of curtain wallers (specialist fitters of large glass sheets in commercial premises described as being at ‘the cutting edge of [glazing] technology’). Although throughout the report the expert had stressed the specialist nature of the work and said it should put the claimant in the highest earning tenth centile for glaziers, in his conclusion he had used the average earnings of glaziers instead. The judge found that he was bound by the conclusions of the expert and somewhat surprisingly felt unable to exercise his own judgment. The Court of Appeal allowed the appeal and held that the judge should have found that the expert had made an obvious mistake and reached his own view on the figures. Indeed, in this case the maths were so obvious, that the court substituted its own figures. The Court pointed out that it ‘would have expected on the facts of this case both sides to have asked the jointly instructed expert to explain his conclusions and the apparent lack of clarity. If the expert had simply made a mistake, that might well have become clear before trial and the litigation taken a different course’.
Even where each side is allowed the luxury of oral evidence of their own expert at trial, problems can arise. In Hardisty v Aubrey [2006] EWCA Civ 1196 the claimant suffered from a whiplash injury which she claimed was long-lasting and significantly disabling. The judge found that she was an honest witness. The Defendants had leave to adduce their own orthopaedic evidence. Both experts produced reports and a joint statement setting out the points they agreed and disagreed. During the course of the trial, indeed after the claimant had concluded her evidence, an issue arose as to whether there had been a cessation of symptoms for a period. The judge, largely relying on documents, and despite his finding of honesty, found that there had been which materially reduced the compensation awarded. In allowing the claimant’s appeal, the Court of Appeal pointed out that this issue ‘was not raised at all before the trial despite lengthy discussions between the doctors who had all the medical records available to them’.
Joint meetings can bring their own problems. In sending some experts into a joint meeting, the lawyer fears that he may be throwing his expert to the lions. In Stallwood v David (1) Admason (2) [2006] EWHC 2600 (QB) the Claimant’s expert examined her four times over three years and in his final report concluded ‘little further improvement can be expected’ and ‘a full recovery will not be achieved’. The Defendant’s expert on the other hand found that ‘the alleged cocktail of symptoms … were due to an element of exaggeration … [and] her present alleged situation is entirely unrelated to the material accident.’ Given this difference of view the case proceeded towards trial with the Claimant seeking £200,000 damages. The experts met and produced a joint report. In it, the Claimant’s expert changed his position saying that he now only accepted two years of symptoms were genuine. Seeing the case disappearing before their eyes, the Claimant’s solicitors instructed another expert and sought to adduce this additional evidence, but the Judge refused. Under CPR 35.12 the joint expert meeting does not ‘bind the parties’. However, the High Court Judge on appeal was naturally concerned about the implications of allowing a party to adduce new evidence after the previously instructed expert had produced a joint report the party did not like. This was a different issue to that which had previously been before the Court of Appeal such as where one party sought to adduce evidence after receiving the report of a jointly instructed expert (Daniels v Walker [2000] 1 WLR 1382).
The Judge felt that this would be allowed only in rare cases where the expert 'has modified his opinion for reasons which cannot properly or fairly support his revised opinion'. In passing, the Court pointed out that an enquiry should always be made of an expert who has changed his opinion before taking the radical step of seeking permission for a new expert.
On the facts of the case, the Judge on appeal was not minded to allow additional expert evidence on these grounds. However, at the hearing of the application which was under appeal the first instance judge had behaved poorly, commenting for example that he himself had had 'a backache for 40 years when I can sit and do my job.' It was therefore in the interests of justice in these peculiar circumstances so that the claimant would feel herself to have had a fair trial, to allow her to hire a new gun and to adduce the new expert evidence.
For further information email David Marshall or call 020 7940 4000.
