England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MASTER UNGLEY)

		Royal Courts of Justice The Strand London Monday 5 November 2001

Monday 5 November 2001

1. THE LORD CHIEF JUSTICE: This appeal comes before this court with the permission of Master Ungley from whose order dated 28 September 2001 it arises. It was correctly considered by him that the issue is one which requires the attention of this court.
2. The appeal raises a point of general significance in relation to expert evidence. It arises in the context of a claim for medical negligence following the birth of one of two twins to Major and Mrs P on 3 October 1996. Tragically that twin was born suffering from four limb cerebral palsy of a mixed type with hypertonia and writhing movements which meant that the child had limited mobility.
3. The history of the proceedings can be summarised shortly as follows. The letter before action was sent in October 1997. Proceedings were issued in March 1998. The trial of liability was fixed to start on 10 May 1999. Following the exchange of experts' reports, the claimant made an application for summary judgment. It was originally returnable on 5 March 1999, but on 25 March, after the matter had been adjourned, the defendant offered to pay 95% of the full liability quantum of damages which were to be assessed. That offer was accepted and the proposed settlement was approved by Turner J on 23 April 1999.
4. In due course, on 17 February 2000, an order was made by the Senior Master, Master Turner. He gave directions designed to ensure the proportionate disposal of the proceedings. He ordered simultaneous mutual exchange of medical expert evidence. He subsequently required the parties to serve a schedule of loss with supporting documentation, the first schedule to be served by the claimant by 30 November 2001, and that to be followed by a counter-schedule not later than 28 February 2002. The object of the exercise was that a trial should take place in approximately March 2002. In addition, the Master ordered that there should be jointly instructed non-medical expert evidence dealing with quantum limited to seven such witnesses who were identified as follows: an educational psychologist, an employment consultant, a nursing specialist, an occupational therapist, a physiotherapist, an architect and a speech therapist. In addition, a video of the claimant was to be seen by the trial judge.
5. The parties were in agreement that there should be non- medical evidence from experts in their respective fields. That part of the order was therefore made by consent. I will return to that aspect of the order later in this judgment. In the absence of special circumstances, evidence by a single expert witness is the appropriate course to be adopted when giving directions in a case of this nature as to non-medical experts.
6. The scale of litigation over medical mishaps of the sort that occurred to the claimant in this case is a matter of considerable concern. In addition, this area of litigation tends to be peculiarly adversarial: both sides, unless they are careful, can allow the litigation to become disproportionate. The issues may be made more difficult to resolve. The costs of litigation may be extremely high. Claims can be very large indeed. The amount of costs incurred, when the size of the claim is considered, may be a relatively small percentage of the amount in issue. However, it has to be realised by those who are involved in litigation in this area that almost invariably the costs fall upon those who are responsible for providing for the health of the nation through the National Health Service. In these circumstances it is the duty of the lawyers on both sides to use their best endeavour to keep those costs under control. It is not only the lawyers who are under a duty, the courts too are under a duty to restrain those costs. A way of doing so is by ensuring that the medical and non-medical expert evidence is restricted so far as possible. In some cases it is difficult to restrict the medical evidence because there can be difficult issues as to the appropriate form of treatment in the particular case and also problems as to the standard of treatment which is required.
7. However, this appeal arises in relation to the non-medical evidence. Although the amount of the claim can be significantly influenced by non-medical evidence, in my view in the great majority of cases where there is the need for such non-medical evidence, that evidence should be given by a single expert rather than by experts called on behalf of the respective parties. As we will see when we come to the framework which is provided by the Civil Procedure Rules, the Rules permit the court to require the parties to use a single expert. This is not a matter of choice for the parties. In the absence of special circumstances I consider that the appropriate way that the power should be exercised is to require a single expert rather than an expert from each party. It is only by so doing that control can be exercised over the costs involved. I have already referred to the number of non-medical experts that were required in this particular case. To have contested issues over the evidence given by those non-medical experts would make the litigation disproportionate.
8. It does not help the parties to a dispute to have contests over such an issue. Quite apart from the additional costs which are incurred, the stress and anxiety which is caused to the claimant or the claimant's parents has to be borne in mind. Also to be borne in mind is the delay which arises. Finally, it has to be recognised that litigation of this sort has an adverse effect upon the resources of the health service, not only in costs but also in the manpower which has to be deployed in providing the information to those who are responsible for conducting this class of litigation on behalf of hospitals and other parts of the health service. It is therefore to be hoped that parties will exercise the degree of responsibility required to control those costs, and it is also to be hoped that the courts will use their powers as far as they can to restrict those costs.
9. The framework provided by the Rules with regard to expert evidence and the Practice Direction in support of the Rules is designed to provide a flexible framework. There will always be cases which require special treatment because of particular issues which arise thereunder. But in general the Rules should cater satisfactorily for the great majority of situations where expert evidence, particularly in a medical context, is required.

Part 35.3 of the Civil Procedure Rules makes clear that experts in general owe an overriding duty to the courts. It provides:

"(1) It is the duty of an expert to help the court on the matters within his expertise.

(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid."

10. The power of the court to restrict expert evidence is contained in Part 35.4 which provides:

"(1) No party may call an expert or put in evidence an expert's report without the court's permission."

11. The court therefore is in a position to control the way that expert evidence is provided.

Part 35.5 contains general requirements:

"(1) Expert evidence is to be given in a written report unless the court directs otherwise."

Part 35.6 enables written questions to be addressed to experts. It provides:

"(1) A party may put to --

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7 written questions about his report.

(2) Written questions under paragraph (1) --

(a) may be put once only;

(b) must be put within 28 days of service of the expert's report; and

(c) must be for the purpose only of clarification of the report; unless in any case --

(i) the court gives permission; or

(ii) the other party agrees."

12. The requirement that questions may only be put once is a general requirement. If the circumstances require the questions to be put more than once, then the court may permit that to happen. If the parties accept that questions should be put on an additional occasion, normally the court will be content to allow them to do so. There is no need for applications to be made to the court in the absence of disagreement.
13. It is apparent from Part 35.5 and Part 35.6 that the process with regard to the obtaining of expert evidence depends upon the use of written instructions, followed by a written report.

Part 35.7 is particularly relevant to the issue which is before the court on this appeal. It provides:

"(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."

14. In relation to Part 35.7 I would emphasise that the power of the court to direct that the evidence be given by a single joint expert is unrestricted. The court has a wide discretion and that discretion has to be used in order to further the overriding principles set out in Part 1 of CPR.
15. When it comes to instructions to a single joint expert, Part 35.8 provides:

"(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, each instructing party may give instructions to the expert.

(2) When an instructing party gives instructions to the expert he must, at the same time, send a copy of the instructions to the other instructing parties.

(3) The court may give directions about --

(a) the payment of the expert's fees ...."

Part 35.9 anticipates that written instructions will be given to the single expert, although that is not said explicitly in terms.Part 35.10 provides in sub-paragraph (4):

"The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions --

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete."

35.11 provides:

"Where a party has disclosed an expert's report, any party may use that expert's report as evidence at the trial."

35.12 gives the court power at any stage to direct discussions between experts.

16. The provisions of part 35 are supported by a Practice Direction which deals with the form and content of the expert's report. One of the matters required to be referred to in an expert's report to which the Practice Direction applies is a summary of the range of opinions of matters dealt with in the report. Paragraph 3 of the Practice Direction deals with the question of privilege. Paragraph 4 amplifies the contents of Part 35.6 as to questions, and states specifically:

"Questions asked for the purpose of clarifying the expert's report should be put, in writing, to the expert not later than 28 days after receipt of the expert's report ...."

17. Paragraph 5 provides:

"Where the court has directed that the evidence on a particular issue is to be given by one expert only .... but there are a number of disciplines relevant to that issue, a leading expert in the dominant discipline should be identified as that single expert. He should prepare the general part of the report and be responsible for annexing or incorporating the contents of any reports from experts in other disciplines."

18. The problem that arose in the present case is that, although the Master had ordered single experts to prepare reports, there came a stage where the claimant's parents wished to have a conference with the experts. They wanted that conference to take place without there being any representative of the defendant present because they wished the experts' evidence to be discussed. The proposal was not one which was acceptable to the defendant. Accordingly, the Master was asked to give a ruling upon this. The Master took the view that it would not be appropriate for a conference of that nature to take place. He ordered, inter alia, that: (1) the application for the defendant's solicitor to be present at the claimant's conference be refused; (2) no conference be conducted by the claimant with the presence of joint experts and those separately instructed by the claimant or save with written consent by any party with any joint single expert.
19. The father of the claimant, who is the litigant's friend, was unhappy about that order. Thus we have this appeal.
20. On 20 July he wrote a letter to his solicitors in which he said:

"I am writing to express my deep dismay at this prospect.

For both [my wife] and myself, a crucial part of such conferences is our ability to express ourselves freely, without fear that any of our comments might be used or taken up by 'the other side', in what is still an adversarial process of deciding the final quantum. The presence of [the defendant's solicitors'] representative would severely inhibit this. Indeed we would find such a presence intimidating and distressing and are vehemently opposed to it.

When we originally agreed to having joint experts, there was no suggestion that it would be necessary to have a conference with [the defendant's solicitors] present. We would not have agreed to such arrangements and would not have agreed to joint experts if [the defendant's solicitors] had stipulated that we would be obliged to have them present at such a conference.

In a similar vein we are keen that the experts are allowed to discuss their opinions and reports with us separately from the Health Authority's solicitors. We do understand they may be required to do this again separately with [the defendant's solicitors], but feel it is vital that they are allowed to give advice to us and our representatives without the presence of the defendant's legal representatives."

21. Unfortunately, because of the initial delays which occurred in the defendant admitting liability, the claimant's parents feel traumatised by their experience. There is no doubt that they were already highly distressed at the fact that the claimant was extremely disabled as a result of what occurred during his birth. In those circumstances litigation which is prolonged adds to that distress. This court fully understands and sympathises with their position. However, litigation of this sort cannot be conducted in a particular way because of distress of this nature. One of the experts whose expertise is nursing has interviewed the parents of the claimant for the purposes of the preparation of her report. There can be no objection to that. A single expert is perfectly entitled to interview the parents for the purposes of preparing a satisfactory report. There was no suggestion, as I understand it, for the defendant to be represented when instructions of that sort were being taken by the expert, and I would not expect the defendant to raise any objection to what happened in this case. That is one thing; but the idea of having an experts' conference including lawyers without there being a representative of the defendant present, as was suggested by the claimant's solicitors, in my judgment is inconsistent with the whole concept of the single expert. The framework to which I have made reference is designed to ensure an open process so that both sides know exactly what information is placed before the single expert. It would be totally inconsistent with the whole of that structure to allow one party to conduct a conference where the evidence of the experts is in effect tested in the course of discussions which take place with that expert. I emphasise that what I have just said does not prevent one expert from communicating with another expert in order to obtain any information which that expert requires to include in his or her report.
22. In support of this appeal, Mr Taylor sets out the reasons why he considers that the proposed consultation should take place. He says that in many cases of maximum or near maximum severity a conference or consultation with experts on quantum issues is important. If that be so, speaking for myself, I would see no objection to consultation, as long as it takes place where both sides are aware of what happens within that consultation. Mr Taylor goes on to submit that the discussion is necessary for the lawyers to understand and to test fully the views of each individual expert so as to discover the strengths and weaknesses of their views and to understand the reasonable range of opinion on any important issues. There is nothing objectionable, subject to both sides being present, in such a discussion taking place. But the idea that one side should be able to test the views of an expert in the absence of the other party is clearly impermissible. It is said that it is necessary for the experts to understand each other fully and to raise any concerns that they may have about the impact of the proposals. For the reasons I have indicated, as long as the matter takes place in a way where one party is not in any way disadvantaged, again there is no difficulty.
23. The other reasons put forward by Mr Taylor are variations to those with which I have already dealt, and I do not need to deal with them separately.
24. There is a helpful protocol which has been prepared by the Academy of Experts as a guide for those who are instructing experts. In relation to the conduct of the single joint expert, it specifically states in paragraph 19.9:

"A single joint expert should not attend any meeting or conference that is not a joint one, unless all the parties have first agreed in writing."

25. It seems to me that that admirably summarises the position whether it is the claimants or the defendants who wish to have a conference of that nature. I therefore consider that the Master came to the right conclusion in his decision.
26. We have been referred to two cases, one of which was decided by a Deputy High Court Judge, and the other by a County Court Judge, which are to the same effect. No authority has been placed before us which suggests that the position might be otherwise. In my judgment it would be surprising indeed if there was any such authority.
27. Certain subsidiary matters arose in the course of argument in this appeal to which the court should briefly refer to avoid uncertainly in the future. We were referred to a passage in the Supreme Court Practice (Volume 1 of 2001) at paragraph 35.7.1 which is in these terms:

"If a single joint expert is called to give oral evidence at trial it is submitted, although the rule and the Practice Direction do not make this clear, that both parties will have the opportunity to cross-examine him or her, but with a degree of restraint given that the expert has been instructed by the parties."

28. That paragraph may be applicable in some cases, but it certainly should not be regarded as being of general application. I summarise my reasons for so saying. The starting point is: unless there is reason for not having a single expert, there should be only a single expert. If there is no reason which justifies more evidence than that from a single expert on any particular topic, then again in the normal way the report prepared by the single expert should be the evidence in the case on the issues covered by that expert's report. In the normal way, therefore, there should be no need for that report to be amplified or tested by cross-examination. If it needs amplification, or if it should be subject to cross-examination, the court has a discretion to allow that to happen. The court may permit that to happen either prior to the hearing or at the hearing. But the assumption should be that the single joint expert's report is the evidence. Any amplification or any cross-examination should be restricted as far as possible. Equally, where parties agree that there should be a single joint expert, and a single joint expert produces a report, it is possible for the court still to permit a party to instruct his or her own expert and for that expert to be called at the hearing. However, there must be good reason for that course to be adopted. Normally, where the issue is of the sort that is covered by non-medical evidence, as in this case, the court should be slow to allow a second expert to be instructed.
29. It was understandably said by Mr Taylor that the sums at stake in this case as a result of the non-expert evidence may be substantial. However, the fact that the sums at stake may be substantial does not justify the departure from the general approach in relation to single experts which I have just sought to indicate. If there is an issue which requires cross-examination, or requires additional evidence, that is one thing. But the court should seek to avoid that situation arising, otherwise the objectives of having a single expert will in many situations be defeated.
30. In litigation of this nature the need for co-operation and openness on both sides is critical. Co-operation and openness will go a long way to meet the concerns of a person in the position of the claimant's father in this case. An unnecessarily adversarial approach will cause the sort of concerns that this father apparently has to fester and grow in intensity. It is very important that that is avoided.
31. It is fortunate that this case came before this court, as the Master desired. In the future there will be a clearer understanding as to the correct approach in a case of this nature in relation to expert evidence.
32. LORD JUSTICE SIMON BROWN: 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 an 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.
33. As my Lord has pointed out, the one document drawn to our attention which specifically addresses the point is the Code of Guidance for Experts and Those Instructing Them published by The Academy of Experts (1 June 2001 Revision) which in part states:

"19.8 Any meeting or conference attended by a single joint expert must be proportionate to the case. Any such meeting will normally be a joint one with all his instructing parties and/or their advisers.

19.9 A single joint expert should not attend any meeting or conference that is not a joint one, unless all the parties have first agreed in writing:

(1) that such a meeting may be held, and

(2) who will pay the expert's fees for the meeting."

34. The good sense of this is surely plain. There can be no point in a unilateral meeting or conference unless what transpires between the party enjoying sole access and the expert is, at least in part, intended to be hidden from the expert's other client. What is to be hidden will necessarily be either the information which the party enjoying access is giving the expert, ie part of expert's instructions, or the expert's view expressed in the light of that information, or more likely both.
35. The hiding of such material seems to me necessarily inconsistent with the very concept of a jointly instructed expert, owing, as such an expert does, an equal duty of openness and confidence to both parties, besides his overriding duty to the court. That, in short, is the fundamental objection in principle to what the appellant seeks to achieve by this appeal. I too would dismiss it.
36. LORD JUSTICE BUXTON: I agree with both judgments. I add simply one point of my own. Counsel for the appellant said that one reason why a conference such as he sought was desirable (indeed in his view required) was not in order to persuade the expert to improve his or her report in favour of the claimant, but to enable the claimant's lawyers the better to assess the strength and range of the expert's report: with a view to their being able better to advise their client and to fulfil their duty to report to the court about the reasonableness of any proposed settlement, it being borne in mind that this was an infant's case.
37. That, as it seemed to me, was the only even arguable practicable reason why such a conference should take place. But the argument is, in my view, clearly unsound. The machinery of the Civil Procedure Rules enables clarification of the report to be sought by way of questions under CPR Part 35.6. That process, together with informed reading of the report, should be amply sufficient to enable advisers with any experience of this area of litigation to judge the likely outcome of the case in the context of the expert's report. In my view, that process of reflection upon written material is likely to be much more reliable than probing viva voce at a conference. The desire for the latter process to be introduced into this part of the procedure reveals a scepticism about the efficacy of written procedure and clarification of issues on paper, which represents what perhaps was an earlier position of English law that the Civil Procedure Rules have gone a long way towards displacing.
38. However, even if there were force in this particular requirement on the part of the claimant, I would not in any event agree to its being indulged. It will be noted that these arguments would apply equally in any case where a child was involved. Further, the whole idea of separate and private approaches (and I emphasise private) to a joint expert is wholly inconsistent with the reasons for the introduction of a regime of joint expert evidence. It is unfair to the expert himself who cannot properly judge how he should deal with the matters in the consultation. And if it is known to have been engaged in, it is likely to undermine the degree of reliability which the court itself can place upon the evidence which the expert eventually gives.
39. In my judgement, those are powerful and conclusive reasons, even taking into account the practical reasons asserted by the claimant in this case, why such separate meetings should never take place. I also would dismiss this appeal.
ORDER: Appeal dismissed with costs.