AvMA: Working Productively
With Your Expert
Paul McNeil
Partner and Head of
Personal Injury and Clinical Negligence
Field Fisher Waterhouse
21108635
Contents
1. The Need for Expert Evidence
2. Restricting and Controlling Expert
Evidence
3. Independence of Experts
4. Duty of Expert
5. Instructions to Experts
6. Meeting the Experts
7. Special Protection to Experts? (1)
8. Special Protection to Experts? (2)
9. Experts’ Fees
10. Privileged Expert’s Reports
11. Team Approach with Experts
12. Range of Opinion
13. Form and Content of Experts’ Reports
14. Declaration of Truth
15. Contents of Liability Reports
16. Amendments to Experts’ Reports
17. Numbers and Disciplines of Experts
18. Scientific, Medical and Technical
Literature
19. Questions to Experts
20. Expert-Shopping
21. Expert Discussions (1)
22. Expert Discussions (2)
23. 10 Tips to make Experts’ Meetings
Successful
24. Expert Meetings Cont’d
25. Experts’ Discussions – do they work?
26. Professional Responsibilities
27. Expert’s Withdrawal from the Case
28. Single Joint Experts (1)
29. Single Joint Experts (2)
30. Single Joint Experts (3)
31. Permission to rely on expert evidence
late in the proceedings
32. Experts at Trial
33. Conclusion
1. The Need for Expert Evidence
The function of the court is to decide on fact and to apply the law.
Expert evidence of opinion frequently involves the process of inferring
from the facts to assist in the court that first function. The difficulty is
that the courts have traditionally excluded opinion evidence from the
process lest the ‘expert’ usurp the role of the judge in deciding fact and
law. Nevertheless the necessity and its solution is potentially resolved
by s 3(1) of the Civil Evidence Act 1972, which states:
‘Subject to any rules of Court made in pursuance of this Act, where a
person is called as a witness in any civil proceedings, his opinion on
any relevant matter on which he is qualified to give expert evidence
shall be admissible in evidence.’
2. Restricting and Controlling Expert Evidence
Lord Woolf criticized the development of ‘A large litigation support industry,
generating a multi-million pound fee income …’, which meant that ‘Many
potential litigants do not even start litigation because of the advice they are
given about costs’, which he described as:
‘as great a social ill as the actual cost of pursuing litigation’.
By litigation support he was concerned with the expert witness industry.
His aim was to:
•
encourage the use of experts to narrow rather than multiply issues in
dispute;
•
reduce the delay and expense resulting from the use of experts; and
•
ensure the parties and the court reduce to a minimum the inconvenience
caused to experts in the conduct of their professional life by having to give
evidence.
3. Independence of Experts
The Woolf Reforms proposed to:
•
•
distinguish between the fact-finding and the opinion-giving roles of
experts;
increase the independence of experts and to reduce their adversarial role
by the parties;
Until the publication of the CPR, the duties and responsibilities of experts
were uncodified and had developed at common law in a piecemeal way, no
less since the introduction of the Civil Evidence Act 1972. Training in the
writing of reports and the giving of evidence was virtually unknown in the
United Kingdom prior to 1996. As a result, the duties and responsibilities of
experts were disparate and in practice often ignored.
The CPR now codifies the extent of the expert’s duties to the court once
proceedings have begun (see Carlson v Townsend [2001] EWCA Civ 511).
4. Duty of the Expert
•
•
•
•
•
•
To those instructing him before proceedings have started
To the Court once proceedings have begun
Note “range of opinion”
No longer immunity from action
Order for costs against expert witness
Contempt of Court
See Practice Direction CPR 35 - Expert Evidence – General Requirements
2.1 Expert evidence should be the independent product of the expert uninfluenced by the
pressures of litigation.
2.2. Experts should assist the court by providing objective, unbiased opinions on matters
within their expertise, and should not assume the role of an advocate
2.3 Experts should consider all material facts, including those which might detract from
their opinions.
2.4 Experts should make it clear:
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have
insufficient information
5. Instructions to the Expert
•
Legal Professional Privilege
•
Terms of Instruction
•
What are the tools for instructing an expert in a Clinical Negligence claim?
•
•
•
•
•
•
•
Chronology
Ordered and paginated bundle of medical records
Client’s witness statement
Hospital Protocols
Hospital Investigation File
Any admission or specific denials
Litigation and treating experts
6. Meeting the Experts
In virtually every clinical negligence case it is essential to meet the core expert(s)
(and if more than one the experts together) where the costs allow.
The reasons are:
•
•
•
•
•
team approach ensures success or proper evaluation of cases where the
advice is not to proceed
face to face is often the best way to inter-communicate properly the legal,
factual and medical issues
discussion leads to better understanding and encourages ideas, arguments
and clarification
Allows the lawyers to “test” the experts and assess their attributes and
qualities likely to be shown at expert meetings and in court
Enables the client (who should also be present) to share the information,
understand the issues and make her own assessment.
It is impossible to say how often these expert’s meetings should take place
because it depends on the complexity of the case.
7. Special Protection to Experts?
Jones v Kaney [2011] UKSC13
•
•
•
•
•
•
K had been instructed to prepare an expert report in relation to a claim by J for damages
sustained in a RTA. K’s initial report suggested a diagnosis of PTSD. An expert
appointed for the defence concluded that J was exaggerating his symptoms. A joint
statement was ordered which was very damaging to J’s case. It transpired that K had
signed the joint statement without comment or amendment. As a result the matter
settled for a much smaller sum. J issued proceedings for negligence against the expert
and K’s defence was a plea of witness immunity in accordance with the decision in
Stanton v Callaghan [2000].
The Court held that:There was no longer any scope for contrasting the duty owed by an expert to his client
with a different duty to the court.
In common with the advocate there was no conflict between the two.
All who provided professional services which involved a duty of care were at risk of
being sued for that breach of duty. They customarily insured against that risk.
A witness of integrity faced with having to change his view would do so whether or not
he was able to be sued. A lesson could be learnt from the position of advocates.
Removal of their immunity had not resulted in any diminution of their readiness to
perform their duty to the court. Immunity from suit should be abolished.
Such conclusion did not extend to the absolute privilege that experts enjoyed in respect
of claims for defamation.
8. Special Protection to Experts? (2)
Contempt of Court
In Phillips1 the Judge ordered that there be an inquiry into the expert’s
conduct in the case, in particular to establish whether or not the evidence
he gave was in ‘flagrant breach of his duties’. Experts did not need a
specific warning as to the risks as to costs. The risk was self-evident
from CPR r 32.14 which applies to all experts as well as lay witnesses
and states:
“Proceedings for contempt of court may be brought against a person if he
makes, or causes to be made, a false statement in a document verified
by a statement of truth without an honest belief in its truth.”
So the expert’s declaration which is a mandatory requirement to conclude
an expert report indicates that the expert could be the subject of
contempt proceedings and also for perjury.(Perjury cannot be prosecuted
for an expression of opinion).
1 Phillips
v. Symes (2) [2004] EWCA Civ 2330
9.
Experts’ Fees
•
You get what you pay for
•
You get what you don’t pay for
•
LSC funding
•
“No Win, No Fee”
•
Legal Expenses Insurance
•
Capped fees (CPR 35.4)
•
Cancellation fees (Martin v Holland & Barrett, 19.10.2002 QBD)
10.
Privilege from disclosure of some Experts’
Reports
The Court of Appeal in Jackson v Marley Davenport Ltd [2004] ECWA
Civ/225 considered whether the Claimants could withhold from disclosure
an expert’s preliminary report made in preparation of his final report and
Longmore LJ stated:
“There can be no doubt that, if an expert makes a report for the purposes
of a party's legal advisers being able to give legal advice to their client, or
for discussion in a conference of a party’s legal advisers, such a report is
the subject matter of litigation privilege at the time it is made. It has come
into existence for the purposes of litigation. It is common for drafts of
expert reports to be circulated among a party’s advisers before a final
report is prepared for exchange with the other side. Such initial reports
are privileged. I cannot believe that the Civil Procedure Rules were
intended to override that privilege.”
11. Team Approach with Experts
Protocol for the Instruction of Experts 2005 (amended October
2009)
“15.2
Experts should not be asked to, and should not, amend,
expand or alter any parts of reports in a manner which distorts their
true opinion, but may be invited to amend or expand their reports to
ensure accuracy, internal consistency, completeness and relevance
to the issues and clarity. Although experts should generally follow
recommendations of solicitors with regard to the form of reports,
they should form their own independent views as to the opinions and
contents expressed in their reports and exclude any suggestions
which do not accord with their views.”
12. Range of Opinion
In a mechanism to attempt to overcome the “hired gun”
approach, para 3.2(6) of PD 35 requires an expert to
consider not just his own view, but:
“Where there is a range of opinion on the matters dealt with
in the report –
(a)
summarise the range of opinion; and
(b)
give reasons for his own opinion”
Also para 2.3 of the PD that ‘An expert should consider all
the material facts, including those which might detract from
his opinion’.
13. Form and Content of Experts’ Reports
•
Addressed to the Court (once proceedings have begun)
•
Expert CVs (qualifications)
•
Material instructions (see PD 35 para 5)
•
Factual matrix (within own knowledge)
•
Range of opinion
•
Opinion (reasons, summary of conclusions and
qualification of opinion)
•
Literature in support (or against)
14. Declaration of Truth
An expert’s report must be verified by a statement of truth in
the following form:
“I confirm that I have made clear which facts and matters
referred to in this report are within my own knowledge and
which are not. Those that are within my own knowledge I
confirm to be true. The opinions I have expressed represent
my true and complete professional opinions on the matters to
which they refer.”
(CPR 22 deals with statements of truth. Rule 32.14 sets out
the consequences of verifying a document containing a false
statement without an honest belief in its truth).
Part 35 PD, para 3.3
See contempt of Court
15. Contents of Liability Reports
•
•
•
•
•
•
•
•
•
•
An objective and forensic reconstruction of the events using the factual witness
testimony, the documents, and other material which are available to the expert.
The methodology utilized and in particular whether any tests were performed, if so,
by whom and under whose instruction.
An explanation of the technical, scientific, or medical terms used in the report.
A conclusion based on the balance of probabilities. The expert is permitted to say
that one factual scenario is to be preferred on technical evidence.
In medical negligence cases, an opinion on whether or not the clinician has acted or
failed to act in accordance with the responsible standards. Here the expert should
consider each possible omission or commission and give reasons for his opinion.
Where an omission, such as the failure to perform a particular task (prevalent in
medical and professional negligence cases), the report must set out, on a
hypothetical basis what would have happened, on the balance of probabilities, but
for the omission.
Reference to the published (and if necessary unpublished) technical, scientific, and
medical material in support of the expert’s opinions with copies annexed to the
report.
A view as to whether in relation to the key issues, the result has been to cause or
materially contribute to the alleged loss.
Any qualification that an issue in the case that falls outside the expert’s expertise.
A summary of any missing information or material that is or may be important to the
case.
16. Amendment to Experts’ Reports
• Independence of Experts
• Duty to Court
• Permissible: Protocol for Instruction of Experts (para 15)
In the modern practice of litigation, it is almost inconceivable that an expert’s
report will be suitable for disclosure after the first treatment. It is inevitable that
whenever an expert is instructed and the report written, the lawyer will wish to
seek a clarification. This may be prompted to avoid opposing Counsel doing so
pursuant to the provisions of CPR r 35.6 which allows written questions to be put
to the expert for such purpose. Indeed, the Court by this very provision and by
decisions stretching from Whitehouse v. Jordan to Jackson v. Marley Davenport
Ltd have condoned the practice. Experts need not be embarrassed; it is a fact of
litigation life.
16. Amendments to Experts’ Reports Cont’d
Nevertheless, the Courts have also been at considerable pains to
emphasise that over-ambitious lawyers should not be permitted to direct
the expert away from his overriding duty to the Court (objective and
impartial) towards the much condemned status of the (partisan) ‘hired gun’.
Therefore, amendments are allowable, with strict guidance.
Protocol for Instruction of Experts
“15.1 It may become necessary for experts to amend their reports:
(a)
as a result of an exchange of questions and answers;
(b)
following agreements reached at meetings between experts; or
(c)
where further evidence or documentation is disclosed
15.4 Where experts significantly alter their opinion, as a result of new evidence
or because evidence on which they relied has become unreliable, or for
any other reason, they should amend their reports to reflect that fact.
Amended reports should include reasons for amendments. In such
circumstances those instructing experts should inform other parties as
soon as possible of any change of opinion.”
17. Numbers and Disciplines of Experts
CPR 35.1 states that:
“Expert evidence shall be restricted to that which is
reasonably required to resolve the proceedings.”
For example, the value of property, motor vehicles, the cost
of nursing care, and earnings have all been determined on
readily available publications rather than expert evidence.
The court has recently held that expert evidence was not
needed from an accountant on the meaning and
interpretation of standard accountancy documents.
(See E.S v Chesterfield [2003] EWCA Civ 1284)
18. Scientific, Medical and Technical Literature
The more supportive the published material, the more likely it is
that the expert’s view will be convincing to the Court (and to the
opposition). Prudent lawyers also ask their experts to provide a list
of published material which does not support the case, in
readiness for the opponent’s assault.
DN v. London Borough of Greenwich [2004] EWCA Civ 1659
“Where an expert refers to research evidence in his report, he must
identify it in the report, so that it will be available to be considered by
the other side without delay, and not merely 4 days before the trial
starts.”
19. Questions to Experts
•
See CPR 35.6
“Must be for the purpose only for clarification of the Report”
•
•
•
Can be joint experts or the opponent’s experts
Once only and within 28 days of service
If questions not answered, the Court may order that the instructing
party may not rely on the report or may not recover his fees in the
proceedings.
20.
Expert-Shopping
In Beck v Ministry of Defence [2003] Civ 1043 the Court of Appeal considered:
“Whether it can ever be appropriate to allow a party to substitute one
expert for another, without at some stage at least, being required to
disclose the first expert’s report.”
Expert shopping is to be discouraged and the check against possible abuse is to
require disclosure of the abandoned report as a condition to try again.
Also see Edwards-Tubb v JD Wetherspoon CA 25 February [2011] EWCA Civ 136
•
Before issuing a personal injuries suit the Claimant instructed an orthopaedic
surgeon whose identity was disclosed in a pre-action letter. After issue of
proceedings he relied upon a report from a different orthopaedic surgeon.
•
E contended that whilst a party might require permission to change from one
court-permitted expert to another in the same discipline that requirement was
limited to a change of expert which took place after the issue of proceedings.
20.
Expert-Shopping (cont’d)
The Court held:•
It was clear from r.35.2 that Pt 35 was concerned with experts who were instructed to
report “for the purposes of proceedings.” That created a distinction between an expert
instructed to advise a party privately and one who was instructed to produce a report for
the purpose of proceedings. However, there was no difference of principle between a
change of expert instructed, for the same purposes, post-issue. That was so as: (a) a
party had exactly the same privilege in an expert report which he had obtained
whenever he obtained it; (b) conversely, the damaging features of expert shopping were
exactly the same whether it was undertaken before or after issue; (c) the whole ethos of
personal injuries litigation since the introduction of the CPR and its associated protocols
was to expect of litigators and parties an equivalent level of openness and
communication before and after issue. Whatever the reason for subsequent
disenchantment with an expert first instructed might be, once a party had embarked on
the pre-action protocol procedure of cooperation in the selection of experts, there was
no justification for not disclosing a report obtained from an expert who had been put
forward as suitable, and had reported.
•
Accordingly, the discretionary power (afforded by CPR 35.4) to impose a condition of
disclosure of an earlier expert report was available where the change of expert occurred
pre-issue as when it occurred post-issue. The power should be exercised after the
parties had engaged openly in the pre-action protocol.
21. Expert Discussions (1)
•
Standard Form of Directions in Clinical Negligence Cases
•
Lawyers Present ?
•
Agenda for Experts meeting
Paragraph 18.5 of the Protocol for the Instruction of Experts
advises that:
“The parties, their lawyers and experts should co-operate to
produce the agenda for any discussion between experts, although
primary responsibility for preparation of the agenda should normally
lie with the parties’ solicitors.”
22. Expert Discussions (2)
Minutes of Meeting
CPR r 35.12(3) permits the court to direct that:“Following a discussion between the experts they must prepare a statement
for the court…”
The Protocol goes further (para 18.10) and states that:“18.10 At the conclusion of any discussion between experts, a statement
should be prepared setting out:
(a)
a list of issues that have been agreed, including, in each instance, the
basis of agreement;
(b)
a list of issues that have not been agreed, including, in each instance,
the basis of disagreement;
(c)
a list of any further issues that have arisen that were not included in the
original agenda for discussion;
(d)
a record of further action, if any, to be taken or recommended, including
as appropriate the holding of further discussions between experts”
23. 10 Tips to make Experts’ Discussions
successful
(1) Review:•
Statements of Case
•
Witness Evidence
•
Exchanged Reports
•
Attached Literature
23. 10 Tips to make Experts’ Discussions
successful
(2)
Do not allow a discussion without an agenda and insist on
expert helping to prepare the agenda.
N.B: Suggested MDCN 1state:“Unless otherwise agreed by all parties solicitors, after
consulting with the experts, a draft agenda in the form of
questions capable, as far as possible, of being answered “yes”
or “no” shall be prepared jointly by the Claimants Solicitors and
experts and sent to the Defendants Solicitors for comment at
least 35 days before the agreed date for experts discussions”.
1Model
Directions in Clinical Negligence cases
23. 10 Tips to make Experts’ Discussions
successful
(3)
Follow the rules!
•
Ask closed questions
•
Chronological list of issues
•
Factual scenarios
•
Law on breach of duty
•
Law on causation
•
Reasonableness on quantum of damages
•
End of discussion
23. 10 Tips to make Experts’ Discussions
successful
(4)
Ensure that both sides experts have all the relevant documents at the
discussion:-
•
Records
•
Statements of Case
•
Experts Reports:Own discipline
Other disciplines
•
Relevant correspondence from the lawyers
23. 10 Tips to make Experts’ Discussions
successful
(5)
Send expert e-mail copy of the agenda before the discussion.
23. 10 Tips to make Experts’ Discussions
successful
(6)
Advise expert not be afraid to:
•
stick to her guns
•
concede where appropriate
•
say “I don’t know – I need to undertake further investigations”
23. 10 Tips to make Experts’ Discussions
successful
(7)
What if the expert changes her mind?
N.B: Suggested MDCN state:
“If an expert radically alters his or her opinion the joint statement
should include a note or addendum by that expert explaining the
change of opinion”.
See also Temple v South Manchester Health Authority(2002)
EWCA Civ 1406 and expert protocol.
23. 10 Tips to make Experts’ Discussions
successful
(8)
Keep the lawyers away!
•
“Access to Justice”
•
Clinical Dispute Forum Guidelines
•
Protocol for Instruction of Experts
•
Suggested MDCN:
“Unless otherwise ordered by the Court, or unless agreed by all
parties, including the experts, the parties solicitors shall not
attend such discussions, if solicitors do attend, the experts may
if they so request, hold a part of their discussion in the absence
of the solicitors.”
23. 10 Tips to make Experts’ Discussions
successful
(9.)
Don’t tell the expert what to say except not to comment on matters
outside expertise.
N.B: Suggested MDCN state:
“Experts give their own opinions to assist the court and attend
discussions on the basis that they have full authority to sign the
joint statement. The Experts should not require the authorisation of
a solicitor or Counsel before signing the joint statement”
Both the Clinical Dispute Guidelines and the Protocol for the
Instruction of Experts state that those instructing Experts must not
give, and experts must not accept, instructions not to reach an
agreement on discussions on areas within the competence of
experts
23. 10 Tips to make Experts’ Discussions
successful
(10)
Ensure that the experts follow the instructions at the end of the
discussion
Example Agenda as follows:
“Conclusion of discussion”
•
At the conclusion of the discussion, a statement must be prepared setting
out:
(a) a list of the agreed answers to the questions in the agenda;
(b) a list of the questions which have not been agreed.
•
Where possible a summary of the reasons for non-agreement
23. 10 Tips to make Experts’ Discussions
successful
•
Individual copies of the statement must be signed by all the experts
before leaving any face to face meeting
•
Before the conclusion of a discussion at a distance identical statements
setting out all the information required in paragraph 1 above must be
prepared and signed by each Expert. Unaltered, signed copies must be
exchanged immediately.
•
The Experts’ duty is to the Court and those instructing Experts must not
give, and no Expert should accept instructions not to agree any item on
the agenda.
24. Expert Meetings Cont’d
•
Woolf Warning
Experts not to be instructed either not to agree or to refer back
any points of agreement for ratification because:“This subverts the judge’s intention in directing the experts to
meet, because the decision as to what to agree becomes a
matter for the lawyers rather than the experts…” [Access to
Justice]
25. Experts’ Discussions – do they work?
•
Cases settled?
•
Issues narrowed?
•
Costs increase?
26. Professional Responsibilities
Duty of Lawyers
•
Statements of Case
•
Timetable for Trial
•
Details of Court and Interlocutory judge
•
Payment of fees on time
•
Check the report
27. Expert’s Withdrawal from the Case
The position is summarised in para 10.1 of the Protocol for the
Instruction of Experts:
“Where experts’ instructions remain incompatible with their duties,
whether through incompleteness, a conflict between their duty to
the Court and their instructions, or for any other substantial and
significant reason, they may consider withdrawing from the case.
However, experts should not withdraw without first discussing the
position fully with those who instruct them and considering
carefully whether it would be more appropriate to make a written
request with directions from the Court. If experts do withdraw,
they must give formal written notice to those instructing them.”
28. Single Joint Experts (1)
MP v. Mid Kent Healthcare NHS Trust [2001] EWCA Civ 1703
“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, ie an expert instructed and retained by both parties? In common with my Lord, I
believe that the answer to this question must be unequivocal “Never”. Not merely is there nothing in CPR
Part 35, the Practice Direction supplementing Part 35, and the relevant Queen’s Bench guide suggesting
that such access should be permitted, but the implications of the rules are all the other way: see
particularly rules 35.6 and 35.8, para 32 (Lord Justice Simon Brown)”
and
Edwards v Bruce [2009] EWCH 2979 (QB)
Where a defendant’s solicitors had communicated in secret with joint expert without the claimant’s
consent, the independence of the expert’s evidence had been tainted and the claimant was therefore
entitled to rely on fresh expert evidence.
In this case Mr Justice Coulson said:
“In addition to the obligations owed to the parties, a single joint expert owes an overriding duty to the court
to give advice on the issues, independent of the interests of the parties. He is in a position of
considerable importance. Absent any legal issues, in a dispute like this, his opinions and conclusions
might be determinative of the case as a whole. He can no more have communications with just one party
about the substance of his report, in the absence of the other side, than a judge can have a conversation
on the telephone with one party, and not the other, about the strengths and weaknesses of that party’s
case, p.25”
29. Single Joint Experts (2)
In Daniels v. Walker [2000] 1WLR 1382, the Court allowed the Defendant to
instruct a care expert after the Court had ordered a joint expert and she had
reportedly (unfavourably to the Defendant). It was noted:
“In a substantial case, the correct approach is to regard the instruction of an
expert jointly as the first step in obtaining evidence on a particular issue. It is
to be hoped that, in the majority of cases it will not only be the first step but the
last step. If having obtained a joint expert’s report, a party, for reasons which
are not fanciful wishes to obtain further information before making a decision
as to whether or not there is a particular part (or indeed the whole) of the
expert’s report which he or she may wish to challenge, then they should,
subject to the discretion of the Court, be permitted to obtain such evidence.”
(per Lord Woolf MR at page 1387D).
In less serious cases, the Court might take a more vigorous approach.
30. Single Joint Experts (3)
In Kay V West Midlands SHA Queen’s Bench Division District
Registry (Birmingham) 4 July [2007] which was unreported the
court held where an agreed joint expert had been instructed and
had prepared an uncontested report on the provision of assistive
technology for a claimant suffering from cerebral palsy, an
application for permission to adduce evidence from a different
expert witness was refused as there were no exceptional
circumstances justifying the new evidence. The Court applied the
following principles:
• in real and major disputes each party should have its own
evidence from the outset.
• otherwise joint experts should be agreed/ordered.
• once a joint expert has been ordered strong presumption that
this will suffice.
30. Single Joint Experts (3) cont.
•
the mere fact that large sums on the evidence does not justify a
departure from this principle.
•
there is discretion for the Court to overcome the above.
•
the Court will consider overall justice to the parties and
“This includes … the balance of grievance test. The application will
only succeed in circumstances which are seen to be exceptional
and to justify such a departure from the norm”
(p.38 Judge Alistair MacDuff)
31.
Permission to rely on fresh expert evidence
late in the proceedings
In cases where one party seeks permission, late in the day, to rely on fresh expert
evidence, the relevant guidance is that set out by Neuberger J (as he then was) in
Cosgrove v. Pattison [2001] CP Rep 68 said the following factors ought to be
considered:
•
the nature of the issue or issues;
•
the number of issues between the parties;
•
the reason the new expert is wanted;
•
the amount at stake, and if it is not purely money, the nature of the
issues at stake and their importance;
•
the effect of permitting one party to call further expert evidence on
the conduct of the trial;
•
the delay, if any, in making the application;
•
any delay that the instructing and calling of the new expert will cause;
•
any other special features of the case; and
•
the overall justice to the parties in the context of the litigation.
32. Experts at Trial
The relationship between the report and all testimony.
As Lord Bridge said in Wilsher v Essex Area Health Authority [1987]:
“Where expert witnesses are radically at issue about complex technical questions
within their own field and they are examined and cross-examined at length about
their conflicting theories, I believe that the judge’s advantage in seeing them and
hearing them is scarcely less important than for when he has to resolve some
conflict of primary fact between lay witnesses in purely mundane matters.”
Smith v Southampton University Hospital NHS Trust [2007] was a clinical
negligence claim against two surgeons that was dismissed, in which there was a
substantial amount of agreement between the two experts. The Court of Appeal
held that the trial judge had failed to explain why she had rejected the evidence on
one expert, and that it was not sufficient to say that the other expert was highly
reputable and representative of a responsible body of medical opinion.
In Pride Valley Foods Ltd v Hall and Partners TCC, unrep, the judge was very
critical of an expert witness in a construction case whose report was more than
200 pages in length, and which included opinions on issues outside his expertise,
“his report offends the established basis on which an expert should give
evidence”.
33. Conclusion
“Broadly speaking, civil litigation has remained adversarial, with the
expert witnesses – at any rate historically – appearing to be as
partisan as their lay clients and legal representatives. The sobriquet
of ‘hired gun’ until recently, was not inapt, although efforts have been
made over the years, culminating in the Woolf reforms of 1999, to
mitigate and, so far as possible, even remove the stigma of
partisanship.
Does the problem still exist today? I think the answer must, at any
rate to some extent, be yes, because it seems to me to be
inevitable. It is inevitable because it is human nature.”
Conclusion Cont’d
I am open to persuasion that I am wrong about this, but it does
seem to me that there is at least a serious risk that a person who is
asked to express an opinion by a party or prospective party to
litigation, however honest and however hard he or she tries to be
entirely objective, will or may trim his or his opinion to meet the
interests of the client, at any rate in the grey areas which
experience suggests exists in almost every case.”
The Right Honourable Sir Anthony Clarke Master of the Rolls in
foreward to “Experts in the Civil Courts”