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
(Mr Justice Wright)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th February 2002

1. LORD JUSTICE WARD: This is an application made by a National Health Trust for permission to appeal against an order made by Wright J yesterday afternoon which we have been able to hear this afternoon. We have decided to give permission to appeal. Counsel can be offered the opportunity to say more but I anticipate that they are not going to do so, so this is to be treated formally as the appeal.
2. The order under appeal is that oral evidence of a Professor, as I shall call him, should not be admitted and that cross-examination of him will not be permitted. The judge ruled that his expert evidence should be received by means of his written report dated 1st October 2001, together with certain answers to questions which had been asked of him by the defendant's solicitors on 12th-18th December and 29th January. But the judge did ask that further evidence be provided, I think from any source, as to whether clinical trials of a certain drug have started; if so, whether the number of participants is now closed or whether there is a possibility of the child concerned becoming a participant in the trial and, if the child cannot join, what are the prospects of the drug being prescribed to her by Professor and when?
3. The application arises in the course of a trial of the quantum of damages to be awarded to the most unfortunate parents of these children, liability having been admitted. I should now indicate that we have continued an order made by the judge that the action be heard in private and that, pursuant to section 11 of the Contempt of Court Act 1981, no person shall publish in connection with these proceedings or when publishing the text or a summary of the whole or any part of the order or, indeed, of this judgment, the name and address or photograph or any other material whatsoever which can identify the claimants, the claimants' children and the defendant. For that reason, I shall say as little as possible about the material facts.
4. The claim for negligence arises out of the so-called wrongful birth of the child. The complaint is that the defendant hospital failed to diagnose in time that an elder child was suffering from a rare genetic disorder. Had that diagnosis been carried out in time, the parents would have been able to test for that disorder in the early stages of the pregnancy of their second child and might have been able to terminate it. In the unhappy events which have occurred the second child is equally badly afflicted. It is a condition which leads to neurological degeneration and an early death. In this case her life expectancy is a limiting factor on the economic loss for which the defendant is liable.
5. The question of that life expectancy has been dealt with by two experts. Firstly, there is a report from Dr. Y, as I shall call him, annexed to the particulars of claim. Although the claimants indicated that they were not intending to call him, his report is being put in evidence by the defendants.
6. In addition, the parties were given liberty to call one expert each on the topic of condition and prognosis, but they subsequently agreed that they would jointly instruct Professor to deal with this topic, for the sensible reasons no doubt that he is not only pre-eminent in his field but also because he is treating the child and knows her well. When the parties came to that agreement it seemed likely that they anticipated that they would each be able to clarify his evidence under cross-examination if they so wished. That appears from a reservation of that right made by the defendants when making observations to the schedule of damages. The claimants had accepted the conclusion of Professor that the total life expectancy was 21 years and, having nailed their colours to that mast, Mr. Whitfield QC makes the fair point that they were indicating that they would not seek to go beyond it, but the defendants did give notice that they would wish to contend, after cross-examination, that the expectation of life could be lower. There was no objection to that reservation of a right to cross-examine. There was correspondence passing between the solicitors as to the calling of Professor, in which it was agreed, as recently as 30th January, that the defendants would arrange for the issue of the necessary subpoena. It was only apparently on 7th February when, in discussion between counsel, objection was taken to the defendants cross-examining Professor.
7. The judge heard those objections. He ruled very shortly, saying no more than that he had come to a view. He was not going to permit Professor to be cross-examined further. By that I think he meant further than had already been done by the correspondence. He said that his expectation of the child's untreated life expectancy is within the range put forward by Dr. Y. The fact that his expectation is at the 60% point rather than 30 per cent is not a substantial enough reason to allow Professor to be cross-examined. He went on to indicate the areas about which the court did seek further information which I read out when reciting the order that he made.
8. The use of a joint expert is now an important part of the Civil Procedure Rules. It undoubtedly serves to ensure that litigation can be dealt with expeditiously, at the greatest saving of costs and without recrimination which is often engendered by having one expert lined up against another and with heavy cross-examination sometimes, though of course not always, as one expert seeks to impose his expertise and his place in the hierarchy, ranking above the other. But when an expert is instructed CPR 35.3 makes it plain that it is the duty of an expert to help the court on the matters within his expertise without regard to any interest of the person instructing him. I would have thought that when a joint expert is instructed, it is all the more important that the joint expert devotes his expertise to giving the greatest possible objective assistance he or she can to enable the court to arrive at the truth and to arrive at the facts from which a just judgment can proceed. The rules restrict the parties' putting in evidence an expert's report without permission, and where a report has been served the rules provide for a limited elucidation by correspondence. Rule 35.6 permits written questions to be put on one occasion only, within 28 days of the service of the report and, unless the court gives permission or the other party agrees, for clarification purposes only. In this instance the defendant on three occasions sought further clarification without objection being taken to those further requests.
9. When it came to this trial an application was made by the defendant in the teeth of the opposition by Mr. Whitfield further to clarify three aspects of the report under cross-examination. This first relates to his opinion that:

". . . her life expectancy without effective treatment is probably a further 12 years. This is the lower end of the range for children with classic [form of the disease] who succumb 'in the teenage years or early adulthood.'"

10. Mr. Palmer QC for the defendants would wish to probe that area of the report in order to explore the contrast between the opinion of Professor and that of Dr. Y who had put the total life expectation in a bracket of 14 to 18 years. The obvious cross-examination therefore is whether Professor would accept that bracket. If not, what other bracket did he think to be normal and, if the child had progressed more quickly than the average child, why was she at the top end of that bracket? What was the lower end of the range for children with classic form of the disease who were not having effective treatment?
11. The second area of cross-examination relates to the availability of that further treatment. It appears that since about September 2001 research has been carried out on the use of a new compound. It appears that when mice are treated the expectation of their life increases by a proportion of 89 over 67. Professor said at page 58:

"Although it is difficult to extrapolate mice to humans, the effect of [the new drug] on [the child's] life expectancy could be to increase it by a factor of 89/67 - from 12 years to 16 years."

12. He pointed out, however, that the mice were being treated from the onset of the disease, whereas in this case this poor child has suffered for a number of years. The obvious areas of cross-examination are to explore what effect the delay in treatment would have in this case, in addition to what effect the drug will have on humans as opposed to mice, as to whether and, if so, when it will become available to humans, and whether and when this child can be treated. The possibilities for the child are that she may be accepted into a test programme to test the efficacy of this drug. Those who are candidates for it will be divided into two groups, two-thirds being prescribed the drug, the other third being the control group. It would not ordinarily be known whether she is within the control group or those receiving the benefits, if happily they prove to be so, of this new treatment. That uncertainty may be clarified by some suggestion now that if she is in the control group, she may be able to opt out of the test programme altogether. If she is not accepted into the first trial, another opportunity for treatment will arise if and when the drug is licensed for treatment of another disease. Whether and if so when it will become licensed is also an area of uncertainty which cross-examination may clarify.
13. The third area in which there may be effective cross-examination is as to the child's recent progress because since Professor prepared his report, compiled as it was between 22nd September and 1st October 2001, there have been a number of involvements of Professor in her treatment and in the prospect of her being able to receive the new drug. Mr Palmer submits that the matter should be brought up to date.
14. Mr. Whitfield readily acknowledges that the main justification for his objection to cross-examination stems from the decision of this court in Peet v Mid Kent Health Care Trust [2002] 1 WLR 210, a decision given on 5th November 2001, though it is not clear when it was first widely reported. In that case the claim was brought for damages for personal injury. They were clearly very serious injuries indeed. The complications required that there be seven jointly instructed non-medical experts to deal with quantum. The appeal arose on a single issue, namely whether the claimant should be permitted to have access to one or more of these joint experts in a private consultation to explore matters privately with the expert or whether, if there was to be any such exploration, it had to take place in the presence of a representative of the defendant. On that issue the court was quite clear. Simon Brown LJ, giving the second judgment, puts it with succinctness and firmness. He said at paragraph 32:

"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 Lord Woolf CJ, I believe that the answer to this question must be an unequivocal 'Never.'"

15. As the Lord Chief Justice did go on to refer generally to the position of the joint expert, what fell from him was obiter. Coming from the Lord Chief Justice his words do carry great respect. He said this at paragraph 27:

"Certain subsidiary matters arose in the course of argument in this appeal to which the court should briefly refer to avoid uncertainty in the future. We were referred to a passage in Civil Procedure (Autumn 2001), vol 1, para 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/her, but with a degree of restraint, given that the expert has been instructed by the parties.'

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."

16. I confess that ordinarily I would have expected, until the Lord Chief Justice gave judgment, that the note in the White Book was an adequate summation of the principles which inform the CPR. Clearly, a joint expert is a hybrid creature. It is in one sense one's own witness. Normally there is no opportunity to cross-examine one own's witness unless he or she turns hostile. It would be the very antithesis of having a joint expert to contemplate a hostile cross-examination. Cross-examination with the degree of restraint which is informed by a desire, not to confront or conflict, but to clarify, would seem to me a not inappropriate use of forensic tools in what is still adversarial litigation. The parties have the basic right to place relevant evidence before the court and any restriction impelled by possible waste of time and costs should only be imposed without putting in peril the need to deal with cases justly. I must, however, pay full respect to what the Lord Chief Justice has said. But it should be noted that he said it in the context of the case where (a) the issue had not arisen, and (b) where the experts were non-medical experts. He drew the distinction himself in paragraph 6 of his judgment. He said this:

"In these circumstances it is the duty of lawyers on both sides to use their best endeavour to keep those costs [costs of litigation, especially involving the National Health Service] 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."

17. The evidence of Professor is clearly expert medical evidence of the highest order. It relates to the form of treatment that his patient is to receive and it relates to problems as to the availability of treatment and, given the experimental stage at which that treatment is still being proffered, the problems of the efficacy of treatment, extrapolating the results of the success on mice to what might be expected when given to children. It seems to me, therefore, that this is the very area of uncertainty in which the court should not seek to exclude all the help it can receive but should welcome it.
18. It seems to me that the primary concerns of the Lord Chief Justice are rightly to eliminate cost and conflict. There would be no great deal more cost involved in this case than allowing the Professor to have given his evidence. He in fact has had to attend this morning. It has taken 20 minutes of a joint meeting to extract from him answers to the three questions which the judge posed, but those 20 minutes could have been usefully deployed in cross-examination and there would have been no saving of costs at all. It was always envisaged on the common understanding of the parties, until Mr. Whitfield became aware of Peet, that Professor would give evidence. This is not a case where the defendants are adopting a hostile confrontational pose. Their object is the benign but just one of clarifying the facts. It is not a case, Mr. Palmer assures us and I accept, where he has his own expert sitting behind him feeding him the questions, in some perhaps often self-aggrandising way that bad experts take up. Here he seeks to cross-examine merely on the implications of the report itself. I do not accept Mr. Whitfield's submission that a statement of a conclusion should necessarily be accepted without an exploration available on the face of the report as to the reasons which compel that conclusion. Moreover, Mr. Palmer would seek to address the new information and the efficacy and availability of the new drug, and matters generally, having regard to documents already disclosed, most of them coming from Professor himself. It was Mr. Palmer's view that he may well have been able to adduce all the evidence he sought to adduce within the hour. It is a sad point of fact that this appeal has itself taken two hours to dispose of. It has interrupted the trial. It has interrupted a busy schedule for Professor. It is, with respect to the learned judge, an example of where time and cost would have been saved by allowing this to be left to the responsible hands of counsel than to endeavour to bring down the guillotine of court control prematurely. In my judgment, this is not simply a matter of discretion but a matter where the judge has gone fundamentally and plainly wrong, and I am in no doubt that this appeal ought to be allowed and that Mr. Palmer ought to be permitted to cross-examine in the areas in which he seeks to do so. I accept that it will be responsibly done. It would be beneficial if, though I for my part would not make it a term of allowing this appeal, that he use his best endeavours to convey to Professor the areas which he wishes to explore and draws his attention to the documents that he believes to be material to those areas, in order (a) that Professor can be fully informed and thus assist the court in finding the truth, and (b) that time need not be wasted tomorrow when there will be little time left for this exercise to be undertaken. I would allow the appeal.

19. LORD JUSTICE CHADWICK: I agree that the appeal should be allowed. I, too, urge the parties to adopt the course which my Lord has just described. But I agree that it is not necessary to make that a term of any order.

19. Guidance as to the circumstances in which it may or may not be appropriate for a court to accept oral evidence from a jointly instructed expert - and so to afford each party the opportunity to ask questions of that expert - has been given by this Court in Peet v Mid Kent Healthcare Trust [2002] 1 WLR 210: see, in particular, paragraphs 6 and 8 and the paragraph to which my Lord has referred, paragraph 28.
20. It is important, however, to keep in mind that the observations in Peet were not intended to be, and cannot be, more than guidance. They cannot have been intended to detract from the court's obligation in the particular case to seek to give effect to the overriding objective set out in CPR 1.1; nor to fetter the court's ability to make such order in the particular case as best enables it to deal justly with the issues raised in that case.
21. In the present case there were three features which pointed strongly to the need for the court to have the benefit of oral evidence from Professor. I include among that benefit the understanding which comes from the testing and refining of written evidence in the course of well directed questions put by an experienced advocate. There is no conflict between the need to cross-examine with restraint and the ability to cross-examine effectively. Effective cross-examination can explore and expose those areas of written evidence which are based on assumption rather than fact, on speculation rather than conviction, without trespassing beyond the boundaries imposed by reasonable restraint.
22. The three features which seem to me to point strongly to the need for oral evidence from Professor in this case are these: first, the apparent conflict between (i) those passages in the Professor's report which seem to suggest that in this case progression of the condition from which this child is suffering, although within the range described as the classic course of the disease, is towards one extremity of that range, and (ii) those other passages which seem more consistent with her life expectancy being towards the other extremity of the expected range. That, as it seems to me, requires some clarification in oral evidence to remove what appears to be - but may well turn out not to be - an apparent conflict.
23. Second, the circumstances in which this child may be able to receive treatment with the new drug. There are two contingencies. First, if accepted for inclusion in the group for clinical trial in respect of the use of this new drug for treatment of her condition, will she be in the two out of three members of the group who actually receive the treatment? Second, if not accepted for inclusion in that group - or, if accepted for inclusion within the group but not within the subgroup which actually receives treatment - will she be able to receive the treatment on compassionate grounds outside the clinical trial. That depends on the drug being licensed for use in the treatment of another disease for which no licence has yet been granted. Those are areas of uncertainty in relation to which the court will be required to make the best estimate that it can. It is likely, as it seems to me, to be assisted in that task by the oral evidence of the Professor, under questioning.
24. Third, it is clear that the condition from which this child is suffering is a rare condition indeed. The medical evidence is inevitably complex, dealing with issues which are at the developmental stage of medical knowledge. This is, if I may say so, obviously an area in which the court needs all the help that it can find.
25. Why then did the judge decide to exclude the benefits which could and should be obtained from oral evidence, if given? The note of his judgment, which may not do justice to his full reasoning, does not give an adequate explanation. He says no more than that Professor's prognosis of the child's untreated life expectancy is within the range put forward by Dr. Y, the other expert in this field, who had given a report in the preliminary stages. But Professor's prognosis is very much at one end of that range. That is an area which requires clarification. And, the judge does not address what seems to me to be the most powerful reason for requiring oral evidence; namely that this is a field in which medical knowledge, and the opportunities for treatment, are changing week by week, if not day by day.
26. In those circumstances, I feel able to interfere with a discretionary decision entrusted to the judge. I think that this court can interfere because the judge has not given reasons which can be sustained under examination; and because the result which he has reached seems to me to be plainly wrong.
27. For those reasons, and for the reasons given by Lord Justice Ward, I would allow the application for permission to appeal and allow the appeal.
Order: Application for permission to appeal allowed; appeal allowed with costs; order made under section 11 of the Contempt of Court Act.