COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Monday 5 November 2001
B e f o r e :
(The Lord Woolf of Barnes)
LORD JUSTICE SIMON BROWN
LORD JUSTICE BUXTON
|(through his father and|
|Litigation Friend RJP)||Appellant/Claimant|
|MID KENT HEALTHCARE NHS TRUST||Respondent/Defendant|
Smith Bernal, 190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
appeared on behalf of THE APPELLANT
MISS JANE MISHCON (instructed by Messrs Bevan Ashford, London W2A 1LF) appeared on behalf of THE RESPONDENT
Crown Copyright ©
Monday 5 November 2001
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."
"(1) No party may call an expert or put in evidence an expert's report without the court's permission."
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."
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."
"(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."
"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.
"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 ...."
"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."
"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."
"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."
"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."
"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."