England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(HIS HONOUR JUDGE COLES QC)

		Royal Courts of Justice Strand London WC2A 2LL
		3 May 2000

1. LORD WOOLF, MR:This is an appeal by the defendant with the permission of the judge in respect of a case management decision. It was given on 15 December 1999 by His Honour Judge Coles QC sitting as a judge of the High Court. The precise nature of the order was subject to some confusion. The bundle prepared for the purposes of the hearing of the appeal did not have the correct copy of the order and at a late stage of the hearing of the appeal a correct order was produced. The precise terms of the order are not important. The issue before the judge, resulting in this appeal, was whether the defendant should have the right to have the claimant examined by a Miss Andrea Grindley, a consultant occupational therapist.
2. The appeal raises a point of some significance as to the approach which judges should adopt when a single expert who has been jointly instructed makes a report and one side or other is unhappy with that report.
3. The claim arises as a result of a very unfortunate accident in which the claimant was involved. He was six or seven years old at the time. He is now 17. He was struck by a car driven by the defendant. There is no issue on liability. Regrettably the claimant sustained severe injuries. It is not in dispute that, as a result of the accident, he will need some form of care for the rest of his life. Although it may be that there are other issues which could arise in this case so far as this appeal is concerned, having regard to the judgment which the judge gave, there is but a single issue and that concerns the nature of the care which the claimant will require.
4. There has been a considerable quantity of medical reports accumulated in this case. It is an indication of the unfortunate way in which the matter was dealt with in the court below that even the final form of the order has resulted in the claimants being given permission to call experts in a situation where there is unlikely to be any contested issue which that expert could deal with in oral evidence. Their reports would suffice. But, there is a difficulty concerning care. The issue as to care could have substantial implications for the insurer who is liable to meet the claim. There could be of hundreds of thousands of pounds involved. In that situation the precise form of care required is a matter for anxious consideration by both parties.
5. The parties in this case are to be commended on agreeing that there should be a report prepared jointly by a Wendy Daykin who is an occupational therapist. The manner in which she was instructed was not ideal. A letter was written by the claimant's solicitors with which the defendant's solicitors were unhappy. Although the matter could perhaps have been expressed in a more satisfactory way by the claimant's solicitors, there was a ready remedy available to the defendant's solicitors. As Miss Daykin was being jointly instructed, she could have been given separate instructions by the defendant's solicitors; they did not take that course.
6. Where the parties have sensibly agreed to instruct an expert, it is obviously preferable that the form of instructions should be agreed if possible. Failing agreement, it is perfectly proper for either separate instructions to be given by one of the parties or for supplementary instructions to be given by one of the parties. In the event, Miss Daykin duly prepared a report dated 16 August 1999. The report is a very substantial document. Section 4 goes into great detail in building up a quantification of the likely cost of the claimant's needs. It indicates the sophistication with which claims of this nature are presented today. When the report was received by the defendant's solicitors, they were concerned about its terms. They did not identify their concern in their initial letter of 15 September 1999, but on 20 September 1999 they wrote:

"Our clients are concerned at the extent of the care regime recommended by Wendy Daykin in her said report. The suggested cost of the said care regime greatly exceed the care costs which our clients have paid in similar cases involving infant Claimants with similar disabilities."

7. When they refer to their client they are obviously not referring to the defendant but their insurers, the Norwich Union Insurance Company. The letter continues:

"Wendy Daykin, in her said report of the 16th August 1999, has suggested that it would be appropriate for the parties to obtain a report from an Occupational Therapist. Our clients would wish, in this case, to obtain their own Occupational Therapist's report from Andrea Grindley....and we would be grateful if you would please confirm that your client and his family are prepared to be interviewed by our nominated expert."

8. The statement that Wendy Daykin had suggested that it would be appropriate for the parties to obtain a report from an occupational therapist was inaccurate. However, the letter continues.

"We propose, once Andrea Grindley's report is to hand, to refer our papers to Leading Counsel in order that thereafter, an appropriate set of questions can be drafted for consideration by Wendy Daykin. Please confirm that you have no objection to this step being deferred pending receipt of our Occupational Therapist report, failing agreement, we will, if so advised, seek an appropriate Direction from the Court."

9. The response to that letter was dated 3 November 1999 and was in these terms:
10. "On 15th June 1999 you wrote inviting us to agree to the instruction of a joint care expert. Having regard to CPR Part 35 we accepted this proposal. In your letter you went on to say 'the Defendants would suggest instructing either Andrea Grindley....or Jacqueline Webb Organisation". We agreed with your suggestion with the result that Wendy Daykin of the Jacqueline Webb team be jointly instructed. In later correspondence you wanted it made absolutely clear that hers was to be a joint report.
11. Miss Daykin's report is now available. It appears to us to be a very thorough and properly reasoned report.
12. Although you say in your letter of 20th September 1999 that your clients 'are concerned at the extent of the care regime recommended' by the report you do not condescend to any particulars of the implied criticism of the reports reasoning. It seems to follow that your new request is motivated by nothing more than disappointment with the joint experts conclusions and a desire to have another bite at the cherry. Your assertion that Wendy Daykin has in any event suggested an O.T. report is wrong. In fact she advised that D needs treatment by an Occupational Therapist. The reality of your request is that you want another care report in the hope that Andrea Grindley's recommendations are less expensive. We doubt that the Court will sympathise with that position.
13. Bearing in mind firstly the provisions of CPR Part 35, secondly the fact that we already have a care report from an expert who was instructed by us jointly and thirdly the absence of any legitimate criticism of her reasoning the request for further facilities for your own expert is refused.
14. Should you seek an order from the Court we shall refer to this correspondence at the hearing."
15. There is then a response dated 8 November to that letter:

"We accept that the Report from Wendy Daykin was obtained on joint instructions. We also accept that we are now seeking to obtain a further Care Report from Andrea Grindley.

In our letter of the 20th September 1999 we confirmed that we were unhappy with the contents of Wendy Daykin's Report in relation to the suggested costs of the proposed care regime which in our experience and in the experience of our insurance company clients greatly exceeded care costs in other cases involving infant Claimants with similar disabilities, and for this reason we do not consider that it is unreasonable for another expert to be asked to comment on the approach adopted by Wendy Daykin in arriving at her calculations.

We note that our request is refused and in these circumstances we will in due course apply to the Court for the appropriate leave."

16. As was anticipated in that letter, the matter came before His Honour Judge Coles when he made the decision against which this appeal is brought.
17. Having heard argument on the defendant's behalf, which was as focused as I consider it should have been, the judge said:

"I am therefore inclined to say that I do not think it is doing injustice or injury to the general principles contained in 35.1 to take the view that in the circumstances of this case, bearing in mind the fact that the issue of care is by far the largest issue in the case, certainly in monetary terms, that it is proper and just to allow the defendant to call an expert, an occupational therapist/care expert, but that that evidence should be limited to the issue as to whether or not it is necessary for this child to have a full time residential carer or something less than that."

18. Having given that initial decision, there were further arguments advanced by those who were then appearing before the judge. Counsel appearing for the defendant (who was not counsel who has appeared before us) sought to give the judge assistance as to the issue on which Miss Grindley should report. However, he was unable to formulate that issue in a satisfactory manner. As a consequence, the judge reconsidered his provisional decision and gave another short judgment. He reached the conclusion as follows:

"I think that, given that the decision that I first enunciated was based upon my reluctance to allow the parties to go beyond the agreed joint expert's report except to clear up questions of ambiguity, the appropriate course for me to take is not to allow the defendants to call any further expert evidence on this point but to allow them or to invite them to put written questions to Wendy Daykin."

19. Before the judge, Mr Lewis QC, the claimant's counsel (who represents the claimant on this appeal) took the point that the sensible course was, before deciding whether Miss Grindley needed to prepare a report which would involve her examining the claimant, for questions to be put to Miss Daykin which could show that there was no issue which would require a report. The judge was accepting in his second decision that Mr Lewis' submission. But he was clearly influenced by the fact that the way the case was presented the real issue was whether the defendant should be allowed to call an additional occupational therapist to give evidence. That was not the issue on which the judge should have been focusing. He should have been focusing on whether the questioning should take place before the defendant had a report from his occupational therapist or whether the occupational therapist should be instructed by the defendant first and then questions put to Miss Daykin, possibly exhibiting the report which had been received.
20. On this appeal the appellants advance two separate arguments. The first argument was based upon the relevant provisions of the CPR. The second argument was based upon the Human Rights Act and the European Convention, albeit that that Act is not yet in force. As far as the relevant rules are concerned, you start with the overriding objective contained in Part 1 of the CPR. I stress, although perhaps it should no longer be necessary to do so, that Part 1.1 begins:

"(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2) Dealing with a case justly includes, so far as is practicable -

....

(b) saving expense;

(c) dealing with the case in ways which are proportionate-

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity to the issues; and

....

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

21. Part 35.1 of the CPR places a duty on the court to restrict expert evidence. It reads:

"Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings."

22. Part 35.6 contains a provision dealing with the ability of the parties to put questions to experts. I do not need to refer to the detail of 35.6. It is sufficient to note that that power exists. 35.7 gives the court power to direct that evidence is to be given by a single joint expert. It states:

"(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.

(2) The parties wishing to submit the expert evidence are called 'the instructing parties'.

(3) Where the instructing parties cannot agree who should be the expert, the court may-

(a) select the expert from a list prepared or identified by the instructing parties; or

(b) direct that the expert be selected in such other manner as the court may direct."

23. Although it is the second issue which was raised on this appeal, I will deal with the Human Rights Act point first. It was raised in a supplementary skeleton argument on behalf of the appellant defendant. It relies on article 6 of the Convention. It refers to the case of Mantonvanelli v France (1997) EHRR 370, and suggests that, having regard to the provisions of article 6, the order of the judge in this case conflicted with article 6 because it amounted either to barring the whole claim of the defendant or barring an essential or fundamental part of that claim. With the greatest respect to the submissions contained in that skeleton argument, which were not developed before us by Mr Temple, I consider that the initial approach of Mr Temple of not relying on article 6 was the correct approach. Article 6 has no possible relevance to this appeal. Quite apart from the fact that the Act is not in force, if the court is not going to be taken down blind alleys it is essential that counsel, and those who instruct counsel, take a responsible attitude as to when it is right to raise a Human Rights Act point. The point was raised in this case and was supported by a skeleton argument which referred to different authorities under the Human Rights Convention. It covered four pages. It resulted in a supplementary skeleton argument which, in the circumstances, was quite reasonably put before the court by Mr Lewis.
24. Article 6 could not possibly have anything to add to the issue on this appeal. The provisions of the CPR, to which I have referred, make it clear that the obligation on the court is to deal with cases justly. If, having agreed to a joint expert's report a party subsequently wishes to call evidence, and it would be unjust having regard to the overriding objective of the CPR not to allow that party to call that evidence, they must be allowed to call it.
25. In civil jurisdictions the position is different. Expert issues are frequently determined on the basis of a court expert and the parties have to put up with it in the majority of situations. They have an opportunity to question the expert but that was going to be allowed by the judge here in any event. No-one suggests that the way matters are conducted in civil jurisdictions could contravene article 6 in the normal manner, nor could the proper use of the CPR.
26. The case to which I have referred involved a situation where one party was not informed of material matters which would influence the way the case was presented. The issue before the European Court did not turn on the fact that it was a court expert who was giving evidence. It would be unfortunate if case management decisions in this jurisdiction involved the need to refer to the learning of the European Court on Human Rights in order for them to be resolved. In my judgment, cases such as this, do not require any consideration of human rights issues, certainly issues under article 6. It would be highly undesirable if the consideration of those issues was made more complex by the injection into them of article 6 style arguments. I hope that judges will be robust in resisting any attempt to introduce those arguments. Certainly, on this occasion, this court gave Mr Temple short shift. Notwithstanding my high regard for Mr Temple, I consider that that was the only way in which that argument could be treated. When the 1998 Act becomes law, counsel will need to show self restraint if it is not to be discredited.
27. I turn to the more significant issue of the judge's decision. No doubt, because of the way the case appeared to the judge having regard to the argument which was advanced before him, he came to the wrong decision. Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
28. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert 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 that evidence.
29. In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.
30. However, in this case a substantial sum of money depended on the issue as to whether full-time or part-time care was required. In those circumstances it was perfectly reasonable for the defendant, if the matter had been properly explained, to say that he would like to have the claimant examined by Miss Grindley. Unfortunately they did not present the case as they should before the judge. Furthermore, they did not express themselves with the necessary clarity in the correspondence. It was not unreasonable for the claimant's solicitors to say, "If you want facilities to examine the claimant, please give us more information". They did not provide the necessary information. Unfortunately, the matter then went off at a tangent before the judge.
31. In a case where there is a substantial sum involved, one starts, as I have indicated, from the position that, wherever possible, a joint report is obtained. If there is disagreement on that report, then there would be an issue as to whether to ask questions or whether to get your own expert's report. If questions do not resolve the matter and a party, or both parties, obtain their own expert's reports, then that will result in a decision having to be reached as to what evidence should be called. That decision should not be taken until there has been a meeting between the experts involved. It may be that agreement could then be reached; it may be that agreement is reached as a result of asking the appropriate questions. It is only as a last resort that you accept that it is necessary for oral evidence to be given by the experts before the court. The expense of cross examination of expert witnesses at the hearing, even in a substantial case, can be very expensive.
32. The great advantage of adopting the course of instructing a joint expert at the outset is that in the majority of cases it will have the effect of narrowing the issues. The fact that additional experts may have to be involved is regrettable, but in the majority of cases the expert issues will already have been reduced. Even if you have the unfortunate result that there are three different views as to the right outcome on a particular issue, the expense which will be incurred as result of that is justified by the prospects of it being avoided in the majority of cases.
33. In this case the judge should have ordered that there should be an opportunity for the claimant to be examined by Miss Grindley. I would allow the appeal so that that examination can take place. This is not a case where it is suggested that the claimant would be unduly distressed, or anything of that nature, by the additional examination. Having allowed the appeal to that extent, I would order that, having regard to the background to this appeal, that the defendants will have to pay the costs in any event. It is my judgment that they brought this appeal on themselves as a result of the way the matter was conducted in the court below. The just result is that the appeal be allowed on that basis.
34. LORD JUSTICE LATHAM: I agree. I only wish to add that I would like to be associated with the remarks that my Lord, the Master of the Rolls, made about the relevance of the European Convention of Human Rights to the issues in this case. I read the authorities with interest but with growing incomprehension as to their relevance to the case in question.
Order: Appeal allowed with costs subject to detailed assessment. Legal aid assessment of claimant's costs.