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
(MASTER UNGLEY)

		Royal Courts of Justice Strand London WC2A 2LL Friday 7 September 2001

1. LORD JUSTICE TUCKEY: This is an appeal from an order of Master Ungley made in these four clinical negligence cases on 6 July 2001, that:

"Unless otherwise agreed by all parties' solicitors, the experts of like discipline for the parties shall discuss the case on a without prejudice basis by 14 September 2001."

2. There followed standard directions as to the purpose of the discussions to be held, the agreement of agenda for the meetings to be prepared by the parties solicitors and the preparation of statements by the experts following the discussions which had been ordered.
3. The claimants say the judge should not have made this order. They appeal with the Master's permission because:

"His practice is to direct meetings of experts in clinical negligence cases unless all the parties agree that he should not do so."

4. As he is one of the Masters assigned to deal with such cases, no doubt he was concerned to obtain the opinion of this court as to whether his practice was correct. Accordingly, he referred the matter directly to this court under the provisions of CPR 52.14.
5. In his additional reasons the Master refers to the fact that experts' discussions and the presence or otherwise of lawyers during discussions are a frequent issue between the parties in case management conferences. The Clinical Disputes Forum Guidelines and those of the Academy of Experts differ as to whether lawyers should be present. The claimants' fall-back position is that if this court upholds the Master's decision that meetings should be held, we should direct that those meetings should be held in the presence of lawyers.
6. Since the hearing before the Master, it has been agreed by the respondents that any such meetings should be tape recorded so that there will be a record of what takes place.
7. I can deal with the issues in the litigation briefly. The claimants in the four actions are the children of Mrs Hubbard. Anne Read was born in 1972 to Mrs Hubbard and her former husband; Krister, who is the most seriously damaged child, was born in 1976 and James in 1987. They are the children of Mr and Mrs Hubbard. Each of the children suffers from a congenital progressive movement disorder, dystonia. It is of a type which is called "Dopa" responsive because the disease may respond to treatment with the drug Dopa.
8. The statements of claim in the four actions, which involve different health authorities, run to hundreds of pages and are said to contain no less than 127 allegations of negligence. It is alleged that from the time each child was seen by a specialist the disease should have been diagnosed and treatment with Dopa started. The allegations cover the period from 1978 when Krister was first seen, to 1994/1995 when the correct diagnosis was made. The allegations are primarily directed against Dr (now Professor) Brian Neville, a paediatric neurologist, who at the material times was working at Guys Hospital; Dr Patel, a paediatrician working at a district hospital in Dartford; and Dr Steven Pollock an adult neurologist. Each doctor saw the children at different times during the period to which I have referred. Negligence is denied.
9. The broad issues relate to what was, or should have been, known about this disease and whether it should have been diagnosed at the relevant times. At a case management conference in April 2000 Master Ungley gave leave to call medical evidence on liability and causation issues from 6 disciplines. He ordered exchange of reports and (without objection from the claimants) that the experts should meet and discuss matters of practice and treatment with a view to agreement.
10. Following this order, each side exchanged reports from two paediatric neurologists, a paediatrician and an adult neurologist, among others. Earlier this year, however, the claimants' solicitors raised for the first time their concern about the experts meeting. At the hearing before Master Ungley in July counsel for the claimants contended that this was not a case for a meeting of experts because two of their experts had said that they would find it difficult to attend a meeting at which the professional competence of Professor Neville, a distinguished colleague known to everyone in this small area of expertise, came under the microscope. They also contended that the facts and issues in the case were exceptionally numerous and complex and could only be defined by oral evidence so there was no point in having a meeting. The Master quite rightly took the view that the narrowing of the issues would help the judge. He concluded that there were undoubted benefits to be had from meetings between the experts in this case.
11. In support of the appeal to this court, Lord Brennan QC has made a number of submissions which largely reflect the points made in the notice of appeal. He says that the Master expressed himself in a way which suggests that he felt he had no discretion but to order a meeting in every case, except where all parties were agreed that there should be no meeting. He says that this court should exercise the undoubted discretion which the court has and conclude that there were good reasons for not having such a meeting.
12. Lord Brennan essentially makes the same points as were made before the Master but has amplified them in argument. In relation to the concerns of his two experts he says that this is a very small world in which Dr Neville is pre-eminent. There is a fear that in a closed meeting with their colleagues, who are the experts on the other side, they might be persuaded to "pull their punches" when dealing with someone so distinguished and well-known to them. That, it is argued, will not be the position when they come to give their evidence in court. The matter will be ventilated in a more open forum.
13. Secondly, Lord Brennan submits that this is an exceptionally complicated case where, even now, the witness statements and pleadings do not clearly define the issues. That will make any definition of those issues in advance extremely difficult, and any discussion of those issues at the meeting hypothetical in the sense that it will depend on how the issues emerge at trial following oral evidence.
14. On this appeal, for the first time, the spectre of Article 6 has been raised. On analysis that goes to what Lord Brennan described as the sensitivity point which is the first point taken. The concern is that, if the experts do reach an agreement which in some way cuts down the scope of the case which was being made in the pleadings and in the experts' reports exchanged on their behalf, the claimants will feel aggrieved. They will be concerned that these doctors are all "in it together" and that their own experts have sold them down the river. Although Lord Brennan accepts that any meeting of experts is not a trial, he says that those concerns produce an element of unfairness into the procedure contemplated by the court, which Article 6 recognises and to which this court should give effect.
15. It does not seem to me that orders such as this, made under the CPR, raise Article 6 points. If the clients' concerns are valid concerns and provide good reason for not ordering a meeting, then the court has perfectly adequate jurisdiction to reflect that in the order it makes which is entirely discretionary.
16. CPR 1.4 requires the court to further the overriding objective by actively managing cases. Such management includes identifying issues at an early stage and encouraging the parties to cooperate with one another. To this end, the relevant rule, CPR 35.12, contains specific powers which the Master used to make the orders in this case. The rules contains no requirement to order a meeting: it says the court "may" order a meeting. The words of the rule are directed at discussion. The rule contains safeguards in subparagraph (4) that:

"35.12(4) The content of the discussion between the experts shall not be referred to at trial unless the parties agree.

(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement."

17. The rule is obviously salutary. Experience of the working of this rule and its RSC predecessor show that in almost every case experts are able to narrow the issues to be determined at trial even in very complex cases. The time and cost benefit which flows from this is obvious. There are of course cases where an experts' meeting would serve purpose, in which case no order should be made. But, even if both parties object to a meeting, the court is not prevented from making an order and should do so if it thinks that something will come of it. I see nothing wrong with a general approach that an order for such discussions to take place will usually be made where there has been an exchange of expert reports.
18. The mere objection by one party will not be sufficient. Some very good reason for not having a meeting would have to be shown. I do not think on analysis that this is really in issue here. What is said is that there are good reasons in this case. The sensitivity of the experts is genuinely expressed, but one has to stand back from that expression and recognise the fact that these experts have already committed themselves to paper in criticising their distinguished colleague. In doing so I am sure that they have expressed their objective views and, more importantly, they have done so in the knowledge that in due course they are likely to have to go into the witness box in public to defend those views. In those circumstances I do not think that any sensitivity they may feel about the discussion with their colleagues (not with Dr Neville himself, but with their colleagues who have expressed contrary views) provides a good reason for not ordering a meeting to take place.
19. The more one looks at this it seems to me that the real fear is that at this meeting, overawed not by their colleagues but by the reputation of Dr Neville, they might be tempted to sell their clients down the river. I do not think that is a good reason. It would be perfectly proper for them to make concessions if they think concessions should be made. If they are made, it is in the interests of justice that they should ne made before the trial rather than dragged out in the trial process with the inevitable time and cost consequences which that would entail.
20. The second fact that the issues are not clearly defined, is always a difficulty in a case of this kind. I accept that it may be a particular difficulty in this case where there is not one allegations but many allegations. But one of the purposes of the meeting is to attempt to confine those issues. This is, therefore, par excellence, a case in which there should be a meeting with that in mind.
21. For these reasons I think Master Ungley was right to order a meeting.
22. The only outstanding question is whether we should order that lawyers should attend the discussions. I have already referred to the debate about this. The two reports which the Master referred to differ diametrically; one says lawyers should not attend; the other says they should. attend. There is a third report which we have been shown which recommends that lawyers "may" attend. This is a debate which is continuing with the expectation that a practice direction will be issued about it. I therefore think it is inappropriate to express any general views on the subject.
23. We do, however, have to decide whether it would be right to make such an order in this case the, the Master having decided against it. Both sides refer to the general points that have been made in the debate. Put shortly, they are for having lawyers: (1) it would give clients confidence; (2) lawyers will be able to assist on law and facts if there was some misunderstanding about those matters in the course of discussion, and (3) they will be able to assess the real effect of the expert debate. The arguments against are: (1) it adds unnecessarily to the costs because there is no real benefit in having lawyers present if they are to keep out of the debate, which they must; and (2) there is a risk that they will influence the experts at the meeting.
24. I am persuaded that in this case it would not be right to order lawyers to attend for the three reasons advanced by Mr Rees QC for the respondents. First, each side has very experienced solicitors in this type of litigation who are enjoined to prepare agendas for these meetings. One can confidently expect that the agendas will be well drafted so the tasks which the experts have to perform, both in applying the correct legal tests and, where necessary, looking at the right facts will be clearly spelt out.
25. If there was any question of improper influence by one side over the other, that would not be done in the presence of a lawyer but would be done outside the meeting. So, from the perspective of clients confidence, the presence of a lawyer would not prevent the thing that is most feared.
26. The claimants' concerns are, I think, met by the concession that there should be a recording, since it will then be apparent to anyone looking at the transcript of the meeting whether there was any misunderstanding about the law or the facts and whether there was, in the course of the meeting, anything improper so one could say that one side had improperly influenced the other.
27. For those reasons, and without responding fully to the challenge which Master Ungley gave us, I would dismiss this appeal.
28. LADY JUSTICE HALE: I agree, but I would like to make a suggestion to the parties and to the wider world which draws upon the long experience of such meetings in family cases, particularly where allegations of child abuse upon which expert evidence is crucial have been made. The solicitor, acting with the assistance of an expert and independent social worker (the children's guardian), usually orchestrates these meetings. As for the representative of the child, he is committed only to the best interests of the child which is the paramount consideration of the court. He is therefore the most neutral independent person who is thoroughly familiar with the case. That solicitor usually chairs the meeting and makes a record of it.
29. It seems worthwhile for consideration to be given by those who are working on practice guidelines, either in the clinical negligence area or in civil cases generally, to the possibility of appointing an independent neutral person to chair these meetings in appropriate cases. Such person would probably be legally qualified and have experience in the field of litigation involved. It would not necessarily be appropriate in every case, but it may be appropriate and desirable for a variety of reasons, especially where there are concerns such as those most eloquently voiced by Lord Brennan in this case. The sensitivity of clients, in particular to the subtle pressures which may influence debate between members of a relatively small professional world, is an important consideration which should not be underestimated.
30. In this particular case, therefore, I invite the parties to give serious consideration to taking such a course. It would not be appropriate to make an order to that effect. First, it appears to be a novel suggestion which has not previously been considered; secondly, the timetable of the case might make it difficult to find a suitable person who could adequately familiarise himself with the issues and the relevant evidence in time; and, thirdly, there may also be costs considerations. Nevertheless, such other are the peculiarities of this case that I do ask the parties to consider and seek to agree something along those lines. There would be advantages for them both.
31. Mr Rees, on behalf of the defendants, accepts that safeguards and reassurance are needed in this case; but there are also the complexities and the risks of confusion which arise from the particular facts of this case and the number of experts, even in the one discipline, who are going to have to meet. Suitably experienced chairing can avoid that sort of difficulty at a meeting.
Order: Appeal dismissed. Order to be drawn up by counsel. No order as to costs.