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 BRISTOL COUNTY COURT
(HIS HONOUR JUDGE HUTTON sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2A 2LL Monday 22 January 2001

1. LORD JUSTICE SIMON BROWN: Pursuant to permission which we gave at the outset of today's hearing, this is the defendant's appeal against part of an order made by Judge Hutton, sitting as a judge of the High Court in Bristol on 19 December 2000 on a pretrial review. The part of the order appealed against is that by which the judge reversed an order previously made in the action by District Judge Singleton on the case management conference on 18 August 2000 by which the defendant was allowed to put written questions to the claimant's medical experts under the provisions of CPR Part 35.6. That rule, provides:

"35.6(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.

(3) An expert's answers to questions put in accordance with paragraph (1) shall be treated as part of the expert's report."

2. I need not read paragraph (4).
3. The background to the appeal can be briefly stated. The claimant was seriously injured in a road traffic accident on 23 August 1994 while travelling as a backseat passenger in a car driven by the defendant. He was not wearing a seat belt at the time and, as a result, was thrown out of the vehicle. The case is a heavy one. General damages apart, the claimant's special damage and future loss were particularised in November 2000 at £587,965 inclusive of interest.
4. The defendant alleges contributory negligence consisting principally of the defendant's failure to wear the fitted seat belt, a criminal offence for backseat drivers since 1989. That is a failure which, depending always on causation, may nowadays reduce the damages by as much as, perhaps even more than, 50 per cent (see the Court of Appeal approval of a settlement agreement on this basis on 21 June 2000 in Hitchens v Berkshire County Council, unreported but noted in Bingham & Berryman's Motor Claims Cases 11th edition at page 236).
5. The claimant's principal report was prepared by Professor Solomon on 29 August 1995. It noted that the claimant was not wearing a seat belt at the time of the accident, but it said nothing as to the consequences of this failure. On 13 October 1999 the defendant's solicitors wrote to Professor Solomon asking him to clarify his report in this regard under the provisions of rule 35.6 in these terms:

"....we should be grateful if you could confirm whether the severity of Mr Mutch's orthopaedic injuries would have been reduced materially, if not prevented altogether, had he been wearing a seat belt. If the answer to this question is positive, we should be grateful if you would indicate which injuries would have been avoided altogether by the use of a seat belt and which injuries would still have been sustained but would have been less severe."

6. The letter was copied to the claimant's solicitors who objected to the questions. At that stage they instructed Professor Solomon not to reply. Similar correspondence passed with regard to two other of the claimant's medical experts, one being his dental surgeon, Mr Chapman. The defendant's solicitors indicated that they would pursue the point and duly did so by seeking a specific direction at the case management conference for the relevant question to be permitted. Express notice of such an application was given on 12 May 2000 and again just before the hearing on 15 August.
7. On 18 August permission was duly given by the court. Amongst District Judge Singleton's orders, were these:

"4. Permission for the Claimant to use written expert evidence as follows."

8. There then followed a list of nine medical experts including Professor Solomon and Mr Chapman:

"5. Permission for the Defendant to use written expert evidence as follows:

(a) Dr Watkinson, dental report

(b) Raymond Spong Associates, employment consultant's report.

Above reports already served. The Defendant be debarred from relying upon any further medical evidence unless it is served by 8 September 2000 ....

6. Written questions to existing experts reports to be served by 1 September 2000. Replies to be delivered within two weeks of receipt of questions. The court will consider whether or not oral expert evidence will be allowed when considering listing questionnaires or at the pre trial review."

9. On 31 August 2000 the defendant's solicitors wrote to the claimant's solicitors confirming that the questions remained as detailed in their original letters of 13 October 1999, and asking them to write to their experts requesting them now to provide the answers.
10. After some delay, for which they apologised, the claimant's solicitors duly did so. I need refer only to the correspondence with Professor Solomon. On 27 September 2000 the claimant's solicitors sent him copies of his report and of the questions asked. They requested him to reply within the next two weeks, those replies to be copied to both firms of solicitors and the Professor's charges to be submitted to the defendant's solicitors.
11. On 4 October 2000 Professor Solomon raised a query as to whether the claimant had, as he himself had suggested, been thrown out of the vehicle on impact or whether, as another document suggested, he had been trapped in the wreckage. The letter said:

"If Mr Mutch's account is correct, then undoubtedly his injuries would have been much less severe had he been wearing a seatbelt. Specifically, he would probably not have suffered the very severe fracture of the pelvis and all its consequences (described in my report).

If, on the other hand, he was trapped inside the car, then a second question comes up: was the front of the car crushed and forced inwards as far as the back seat? If so, then he would, on the balance of probabilities, have sustained the same injuries whether he was a wearing a seatbelt or not. However, if that was not the case and it emerges that he was catapulted forwards out of his seat, then certainly his orthopaedic injuries would have been much less severe and possibly avoided altogether if he had been wearing a seatbelt.

I believe it should be possible to answer the questions which I have highlighted by reference to ambulance and recovery team records, to which I have not so far had access.

If you are able to obtain these additional records, I should be pleased to comment further."

12. On 19 October 2000 the claimant's solicitors confirmed to the defendant's solicitors that they had no objection to the medical experts being sent the further documents they had requested. Following the receipt of these documents, on 13 November, Professor Solomon wrote to the defendant's solicitors (again copying the letter to the claimant's solicitors) as follows:

"I .... acknowledge [receipt of] the attached Police Accident Report, Police Road Traffic Accident Specialist Report and various Witness Statements from people who were present at the scene of the accident.

The cumulative information which I have gleaned from these various reports makes it absolutely clear that Steven James Mutch, who was travelling as a rear-seat passenger in this car, was flung out of the car at the moment of impact, landing on the ground near the wreckage. Details in the Road Traffic Accident Specialist Reports suggest that the rear seatbelt had not been in use at the time of the collision.

Turning to my previous letter of 4.10.2000, I can now say that the account given by Steven James Mutch when I interviewed him, namely that he was thrown clear of the car at the time of the accident, can be taken as correct. In that case, the injuries which he suffered would have been much less severe had he been full restrained by an effective seat belt. In particular, on the balance of probabilities, he would not have suffered the very severe fracture of the pelvis and the consequences which arose from that injury."

13. Mr Chapman had still not replied to the similar questions which had been put to him as to the effect of not wearing a seat belt on the extent of the claimant's dental injuries. On 14 December the claimant's solicitors wrote to him asking him to do so if possible before the pretrial review which was listed for 19 December. On 15 December the claimant's solicitors sent to the defendant's solicitors the bundle of documents and case summary they had lodged for the pretrial review. Included in their case summary was this:

"It is currently anticipated that oral evidence from the experts will be limited to three of the medical experts in relation to the extent to which the Claimant's injuries might have been lessened had he been wearing a seat belt, and the cross-examination of the Defendant's employment consultant."

14. There was no hint of a suggestion there that the answers given, or to be given, by these medical experts would be inadmissible.
15. In the event, Judge Hutton's order on the pretrial review on 19 December included these paragraphs:

"1. Professor Solomon['s] answers contained in the letter dated 13 November 2000 not to be admitted in evidence at trial.

2. The order made by District Judge Singleton dated 18 August 2000 requiring Mr Chapman to answer written questions be revoked."

16. The order directed that the trial be listed for 2½ days between 5 and 7 February 2001. In the brief judgment which he gave, Judge Hutton said:

"The Claimant's Counsel submits that this is not mere clarification and that the court should not grant permission for the questions and answer to be put before the Trial Judge. Having heard submissions from the Claimant's Counsel and on the basis that the Claimant does not have to prove the Defendant's case, I have decided not to grant leave for the Defendant to rely on Professor Solomon's letter and therefore find for the Claimant.

....I further revoke paragraph 6 of District Judge Singleton's order of 18 August 2000.

Leave to appeal .... is denied, for the current medical reports are enough for the trial judge to decide the effect of not wearing a seat belt - if he so finds."

17. The judge then completed the standard form incorporating his refusal to grant permission to appeal in these terms:

"Issue of contributory negligence is for the trial judge, not for the medical experts."

18. Unsurprisingly to my mind that the defendant now appeals. In effect, the judge has not merely denied the defendant the obvious benefit of Professor Solomon's expert opinion as expressed in his letter 13 November, but he has precluded the defendant from adducing any medical evidence whatever on the point. It is not now possible for the defendant to call such evidence. District Judge Singleton's order of 18 August had debarred the calling of any further medical evidence unless it was served by 8 September 2000. As at that date, and right up to Judge Hutton's order on 19 December, the defendant had no reason to suppose that any such evidence would be needed. On the face of District Judge Singleton's order, it would be provided by whatever answers were given to the questions expressly permitted to be put to the claimant's experts.
19. Moreover, not only had there been no appeal by the claimant against District Judge Singleton's order, but the claimant's solicitors had fully cooperated in its implementation, even to the extent of agreeing that Professor Solomon should be provided with the further accident report documents and witness statements to enable him to resolve the doubts which he had initially expressed in his letter of 4 October 2000.
20. Had Professor Solomon ultimately expressed an opinion more favourable to the claimant asto the likely causative effect of not wearing a seat belt, it can hardly be doubted that he would have enthusiastically adopted it as part of his case. The question arises, having in the event been disappointed the Professor's answer, could the claimant then properly have it annulled on the footing that, as the judge put it, "the claimant does not have to prove the defendant's case". The defendant understandably submits not.
21. The first point to note on this appeal is that, irrespective of whether the questions were or were not strictly "for the purpose only of clarification" of the expert's report, on 18 August 2000 the court gave permission to put them. These were, be it remembered, questions which had long since been formulated by the defendant and which were subsequently administered without objection by the claimant. Moreover, as is observed in the footnotes at paragraph 35.6.1 of the White Book:

"This is a useful provision .... It enables a party to obtain clarification of a report prepared by an expert instructed by his opponent or to arrange for a point not covered in the report (but within his expertise) to be dealt with. In a given case, were it not possible to achieve such clarification or extension of a report, the court, for that reason alone, may feel obliged to direct that the expert witness should testify at trial."

22. Had Professor Solomon simply been called to give evidence, then, plainly, the defendant could have asked him precisely these questions in cross-examination and, equally plainly, the defendant would have been entitled to rely upon his answers given to prove his own case.
23. The next point to be made is that the issue of causation, namely what effect the claimant's failure to wear a seat belt had on the severity of his injuries, is a matter upon which expert medical evidence would not only be relevant but, to my mind, would be of the greatest materiality. I find it difficult to understand the judge's apparent view as to the contrary, expressed on his refusal to grant permission to appeal.
24. The most fundamental difficulty with the judge's approach, however, is that it overlooks the essential reform sought to be achieved by CPR Part 35. This new regime is designed to ensure that experts no longer serve the exclusive interest of those who retain them, but rather contribute to a just disposal of disputes by making their expertise available to all. The overriding objective requires that the court be provided with all relevant matter in the most cost effective and expeditious way. This policy is exemplified by provisions such as rule 35.11 which allows one party to use an expert's report disclosed by the other party even if that other party has decided not to rely on it himself.
25. In a valiant attempt to save the judge's order, Mr Chippindall has raised an apparently fundamental new point, one which was wholly unforeshadowed in any document placed before this court. It rests upon the second paragraph in Professor Solomon's letter of 4 October 2000, that in which he postulated, in the event that the evidence showed the claimant to have been trapped inside the car, that a second question would arise, namely as to whether the front of the car had been crushed to such an extent as in any event would cause these injuries. To my mind that is not a sustainable objection to the admission in evidence of Professor Solomon's subsequent letter by which he unambiguously resolves that particular difficulty and, moreover, does so following the claimant's solicitor's express agreement to his being provided with the necessary factual material enabling him to do so.
26. It seems to me at this stage that, if a case is to be put that the claimant would have suffered the self same injuries or injuries of equivalent severity even had he been wearing his seat belt, then it should be for him rather than the defendant to establish that. That is perhaps putting his case at its highest, given Croomb-Johnson J's decision in Patience v Andrews [1983] RTR 447 (see particularly the judgment at page 454). Whatever be the position as to that, in my judgment there can be no possible basis upon which Professor Solomon's views, expressed in his letter of 13 November, should be excluded from evidence. It will be for the trial judge to give such weight to them as he thinks appropriate. He will no doubt have to reach his own conclusions with regard to the soundness of its foundations.
27. Mr Chippindall's skeleton argument raises the contention that it would be unfair to admit Professor Solomon's letter:

"This 'unfairness' is exemplified by the question, 'how does the Respondent now challenge that evidence?' He cannot cross-examine his own witness. Is he now to obtain new expert evidence? How does that square with the overriding objective?"

28. In response to those forensic questions, I would first refer to the footnotes appearing at paragraph 35.7.3 of the White Book:

"Where the parties give joint instructions to a single expert, whether as a result of a direction given by the court under r 35.7 or as a result of an agreement to that effect between the parties, it is conceivable that one of the parties may be unhappy with the report produced by the single joint expert. [I would observe parenthetically at this point that the agreed or ordered administering of questions to one party's expert is to my mind a fortiori to that situation].

The question may then arise whether that party should be permitted to instruct another expert with a view to his obtaining a report which will enable him to make a decision as to whether or not there were aspects of the report of the single joint expert which he might wish to challenge. In Daniels v Walker [2000] 1 WLR 1382 CA, it was held that, where the dissatisfied party's reasons were not fanciful, such permission may be granted, at least where the parties had agreed to give joint instructions to the single expert, and especially where a substantial sum was involved."

29. As indicated in the course of argument, we would think it appropriate that Professor Solomon be called to give oral evidence on the issue of causation at trial and, furthermore, that each side be permitted to cross-examine him. In addition, as envisaged in the footnote I have just read, it will be open to each party to consider now, before trial whether they ought to be seeking permission to call some other expert on this issue.
30. It would seem to me, primarily, that it will be for the claimant to consider whether there is a better than "fanciful" prospect of showing that Professor Solomon did not satisfactorily deal with the possibility that, even had the climant been wearing his seat belt, he would have suffered comparably serious injury. But, even were further expert evidence to become available to him on that question, he would still need to overcome the apparent problem in his path constituted by the decision in Patience v Andrews. That decision, however, certainly seems to me to be open to question.
31. These matters are not for this court now on this appeal. Our concern is solely with the admissibility or otherwise of Professor Solomon's letters and, in particular, the clear views expressed in his letter of 13 November. As to that, I entertain no doubt that this letter is indeed admissible as part of his evidence, even though it manifestly redounds to the defendant's advantage on the issue of contributory negligence.
32. As far as Mr Chapman is concerned, I suggest that the best solution to the difficulty created by his continuing failure to answer the questions he has been invited to answer is simply to give liberty to both sides to call their respective dental surgeons to give oral evidence limited to this issue. I recognise that is not an ideal situation and that the new regime is designed where possible to ensure that expert evidence is given in writing rather than, much more expensively, orally. That situation however seems to me to have been forced on the court by Mr Chapman's expensively uncooperative stance. It is to be hoped that the position may still be able to be resolved in writing. If it cannot be, however, Mr Chapman should be alerted to the possibility that financial sanctions may be imposed upon him.
33. I would accordingly allow this appeal and substitute for Judge Hutton's orders those that I have proposed.
34. LORD JUSTICE LONGMORE: I agree. I would just say that, perhaps understandably in the light of Judge Hutton's order, Mr Chapman has not answered the questions since the date of the order. But what is disturbing is that paragraph 3 of Judge Hutton's order that Mr Chapman and Dr Watkinson should provide a joint statement indicating areas of agreement and disagreement by 4 pm on 15 January 2001, does not seem to have been complied with. In my judgment it ought to be.
Order: Permission to appeal granted. Appeal allowed with costs to be assessed and set off against damages to be awarded. Judge Hutton's order to be substituted as indicated. (Order does not form part of approved judgment)