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 HIGH COURT
QUEEN'S BENCH DIVISION (LEEDS DISTRICT REGISTRY)
(HIS HONOUR JUDGE LANGAN QC (SITTING AS A JUDGE OF THE HIGH COURT))

		The Law Courts Quayside Newcastle upon Tyne NE1 3LA
		11 June 2003

1. LORD PHILLIPS, MR: Lord Justice Simon Brown will give the first judgment.
2. LORD JUSTICE SIMON BROWN: This is a second appeal against what can only be characterised as an interlocutory case management decision; not, therefore, everyday fare in this court. It nevertheless raises a question of some little importance, namely whether it can ever be appropriate to allow a party to substitute one expert for another without, at some stage at least, being required to disclose the first expert's report.
3. With that briefest of introductions, let me sketch in the factual background of the case to the limited extent necessary for present purposes.
4. Having joined the RAF in 1995, the appellant had been promoted to Flight Lieutenant when in 1998 he unfortunately developed psychiatric illness. Between April and September 1999 he was treated by an RAF General Practitioner at the Duchess of Kent Hospital, Catterick, where the consultant psychiatrist in charge of his case, at least for a time, was Dr Leigh-Howarth. It is the appellant's central contention in the action that the treatment he received over that period was negligent, and that not only did it fail to cure him, but it actually exacerbated his condition, turning it into a major depressive illness such as to cause his medical discharge from the RAF in April 2000, and the long term destruction of his employment prospects for the rest of his life. This clearly is a high value claim.
5. Proceedings were issued in September 2001. The particulars of claim were served in January 2002. By their defence served in April 2002 the respondents deny negligence, causation and damage. On 28 June 2002 the case came for a directions hearing before a district judge at Hull. A split trial was ordered. The issues of breach of duty, causation and the effect of any breach of duty on the claimant's employment and earning capacity were ordered to be determined at the preliminary hearing.
6. In addition to common form directions for the exchange of witness statements and the like, an order was made that:

"Each party shall exchange expert evidence limited to one psychiatrist per party concerning the issues of liability, causation, condition and prognosis in the form of experts' reports by way of simultaneous exchange, such exchange to take place by 11 October 2002."

7. The respondent Ministry had, by the date of that order, selected as its expert psychiatrist a Dr Goodhead. He had, indeed, examined the claimant in April 2002. As was later made clear, however, over the following months the respondents came to lose all confidence in Dr Goodhead. On 10 October 2002 they asked the claimant's solicitors for facilities for the further psychiatric examination of the claimant by another expert. At that stage the proposed further expert was Dr Baggaley. A month or so later that request was refused, whereupon, on 11 October 2002, the defendants applied to the court for permission to change experts. Their solicitor said in the notice of application:

"The Defendant instructed a psychiatrist to examine the Claimant and prepare a report. I had not used this particular expert before and despite receiving a report which was favourable to the Defendant on liability, it was clear to me that the expert did not have sufficient knowledge of the Ministry of Defence psychiatric referral system which is relevant to liability in this case. In addition, the presentation and flow of the report was poor. Essentially, the Defendant does not have sufficient confidence in him as an expert witness and in the context of a fairly complex and high value claim wishes to have the Claimant examined by another psychiatrist with knowledge of the MOD psychiatric system."

8. That application came before District Judge Fairwood on 17 January 2003 and was granted. The district judge, having rightly directed himself that the onus was on the defendants to show that it was reasonable to make the order for substitution, concluded that it was in the interests of justice that the application should succeed:

"If it is refused and the Defendant loses the case it, and more importantly its medical employees, will have an understandable sense of grievance at being obliged to persist with an expert in which they have totally lost confidence. In my judgment the application is the only way forward to facilitate an informed and fair trial."

9. The claimant applied for permission to appeal against that order to a circuit judge, Judge Langan QC. The application was expedited and granted and the appeal immediately followed.
10. Two central criticisms were made of the district judge's judgment. First it was said to be contrary to the principles established by this court in Lane v Willis [1972] 1 WLR 326, in that the defendants here could not establish that they were unable properly to prepare their defence without instructing a further psychiatric witness, in particular without first disclosing to the court their existing medical evidence. Secondly, it was contended that the district judge had exercised his discretion in a wholly erroneous manner with regard to a number of considerations.
11. Judge Langan found neither basis of challenge to be made out. I shall have to return later to his judgment, but first let me complete the history. The effect of dismissing the claimant's appeal was to leave the action stayed pending the claimant submitting himself to examination by the defendants' fresh expert. As stated, that expert was at the time intended to be Dr Baggaley. Shortly after Judge Langan's order was perfected, however, it became apparent that during the mid-1990s Dr Baggaley had been a close associate of Dr Leigh-Howarth at the Duchess of Kent Hospital and, indeed, that the two of them had, in 1996, co-authored a paper.
12. In those circumstances, the defendants, whilst contesting not merely that they had been guilty of material non-disclosure in their conduct of the appeal before Judge Langan but in addition that the link between the two doctors would in any event have debarred Dr Baggaley from giving acceptable expert evidence at trial, have sensibly agreed that, assuming they can otherwise hold Judge Langan's order, they will instruct as their fresh psychiatric expert not Dr Baggaley, but a Dr Adrienne Reveley who knows none of the defendants' witnesses and has never worked at the Duchess of Kent Hospital, Catterick.
13. Permission to bring this second appeal was granted by Mance LJ on 31 March 2003. Although not restricting its scope, he appears to have been influenced principally by the Lane v Willis argument:

"The appeal permitted... raises some potentially important questions regarding the court's approach to the substitution of an expert and whether the decisions below can be reconciled with the principles stated in Lane v Willis."

14. Mance LJ also thought that there might be a difficulty resulting from Dr Baggaley's relationship with the defendants' witnesses but, as was made clear in the course of today's hearing, we are not impressed by that argument. The true issue is whether, and if so on what terms, the defendant should be allowed to instruct a new psychiatric expert, not who that expert should be.
15. I turn now to the judgment under appeal to see how Judge Langan dealt with the ruling authority, Lane v Willis. At paragraph 14 of his judgment, he said:

"I deal first with the Lane v Willis argument. That was a case in which a defence neurologist in road traffic accident litigation took the view that the plaintiff should be examined by a psychiatrist. The request was refused by the plaintiff's legal advisers. On the particular facts of that case, the Court of Appeal decided that the examination should proceed, but general observations were made which are inimical to further medical examinations in general. Sachs LJ pointed out, at page 333, that an order for a medical examination of any party is an invasion of personal liberty. It should only be granted when it is reasonable in the interests of justice to do so. The onus lies on the party who says that the refusal of medical examination is unreasonable, and he must show that he cannot properly prepare his case without that examination. Further, as a general rule, if there were an application for further medical examination, such medical evidence as the applicant party had already obtained should be produced. This is to make it clear to the respondent whether or not the application is really due to what has been called expert shopping."

16. Before turning to the next paragraph of Judge Langan's judgment, it is convenient to cite the most directly relevant passages from Sachs LJ's leading judgment in Lane v Willis. There are three. At page 333A-C:

"The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to an action, act when deciding whether or not to take the somewhat strong course of staying the action if a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an 'invasion of personal liberty'. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as Mr Turner very rightly conceded."

At page 338H:

"This is a serious neurosis case and it is right to emphasise that in such a case each successive examination of the unfortunate plaintiff must be apt to disturb him and to aggravate the very thing for which he is claiming compensation. To that extent a plaintiff in his position requires - as was indeed given to him by his solicitors - every effort made to protect him against unnecessary examinations."

At page 334E-F:

"....it has become plain that in future cases of this particular type (if these should ever recur) such medical evidence should be produced: no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendants' medical expert being favourable to the plaintiff."

I return to paragraph 15 of the judgment below:

"In my judgment, Lane v Willis does not lay down wholly inflexible rules which have to be followed by judges dealing, some 30 years after that decision, with applications of this kind. Of course, each and every one of the principles stated in the judgment has to be treated with respect. These principles are, if one may say so with respect, self evidently right. Of course a court should be reluctant to see personal liberty invaded by what amounts to compulsory medical examination. The examination is compulsory because the price of not being examined is abandonment of a claim. Of course, a court must require good reason from the party applying for a further examination, the onus is on that party. I accept that, in general, disclosure of existing material must be a precondition to the making of an order. I emphasise, however, 'in general', and I will return later in this judgment to the particular facts of this case. What, in my judgment, Lane v Willis does is set down markers or signposts to which proper attention must be given."

17. Although there were other factors in the case generally relevant to the exercise of the court's discretion in a case of this nature, I need not deal with them in any detail. In my judgment, on the determination of a second appeal, it is plainly not for this court to re-exercise a broad discretion. True it is, for example, that the defendants applied very late for permission to change their psychiatrist. In the event, however that delay caused no prejudice: as the district judge below found, it had no impact on the timing of the trial. True, too, the proposed further examination of the claimant by a fresh psychiatrist would involve some further invasion of his personal liberty and he is, of course, in an already fragile mental state having twice during his illness tried to take his own life. As Judge Langan pointed out, however, there are two features of the case operating to diminish the impact of this factor upon him:

"One is that it is a psychiatric examination; it is not one of those medical examinations which are either intimate or otherwise physically intrusive, nor one of those kinds of medical examination which, although mechanical, such as an MRI scan, are extremely unpleasant to experience. Second, this is not to be a medical examination of somebody who is, as it were, free of doctors. The claimant is unfortunately an ongoing psychiatric patient, who presumably sees practitioners regularly and, in any event, he is someone of whom a further examination closer to trial date might well be necessary."

Considerations of this sort go rather to the exercise of the court's discretion generally than to the critical question arising here as to whether Dr Goodhead's report should be disclosed. It is that question alone on which the appeal must now focus.

18. I turn therefore to the appellant's main argument, his contention that, in the light of the principles established in Lane v Willis, there is no proper basis for the order made here, in particular because of the defendants' refusal to disclose Dr Goodhead's existing report. In this connection I cite one further brief passage from the judgment below:

"The District Judge rightly, in the circumstances of this case, took the view that the defendant had good reason for not disclosing the doctor's report, Dr Goodhead's report. For that report to have been disclosed would have been to deliver into the claimant's hands ample material for effective cross-examination of Dr Goodhead, should this application have been refused and Dr Goodhead be called at trial."

19. It is not enough, submits Mr Elgot for the appellant, that Dr Goodhead's report is said to be "rambling, long and unfocused" and that the defendants' solicitors have been unable to persuade him to put it into satisfactory form. That, runs the argument, was an insufficient basis upon which to make an order for a fresh expert. That submission, I have to say, seems to me to do less than justice to the defendants' real case here, which is essentially to the effect that they have lost all confidence in Dr Goodhead and that this is a case, par excellence, in which it is important that they should have confidence in their expert. It is, after all, not merely a very high value case, but one which involves serious allegations of professional negligence against a number of the defendants' own doctors who continue to treat service personnel. As it is put in paragraph 10 of the respondents' notice:

"I have now come to the view that the most important thing is to ensure that the Respondent is represented by an expert in whom it has confidence. This is a high value claim, which is medically and factually complicated. It is important to my client (the MoD), and to the individuals that are named in the Particulars of Claim as having been negligent all of whom are still practising in medicine."

20. All this I can readily understand. What I confess to having had some difficulty in understanding is why the defendants should not be required to disclose Dr Goodhead's report. There are two aspects of this. Different considerations arise depending on whether disclosure is said to be required (a) before the decision is taken either to allow or to refuse the application to change experts; or (b) as a condition of granting such an application. It appears that the argument in this case has hitherto focused exclusively on the first stage. That is something that the district judge dealt with and which, in turn, Judge Langan dealt with in the passage in his judgment cited in paragraph 18 above.
21. The point is now reiterated in the respondents' skeleton argument in these terms:

"The reason for not disclosing Dr Goodhead's report is precisely as the District Judge identified: it would indeed put the Respondent in an impossible situation if the report was disclosed but then the application was not allowed. The Respondent accepts that the very fact of making the application, and thereby putting the Appellant on notice of its dissatisfaction with its expert, even without disclosing the expert's report, risks some damage to the prospects of a successful defence in the event that the application does not succeed; that has become particularly true in this case given that, even though the report has not been disclosed, it has now been subjected to criticism in open court on three separate occasions. But the damage would be immeasurably greater if the report had been disclosed, because the report would inevitably have been subjected to detailed criticism by the Respondent at the hearing of the application/appeals. If the application was disallowed, the Respondent would in effect have delivered cross examination of its own expert and closing submissions on the cogency of his evidence direct into the hands of the opposing party. This would be untenable."

22. This argument, and certainly the passage cited from the judgment below, might be thought to have overlooked the point that, if indeed the defendants were to be refused permission to change experts, they would be bound to rely on Dr Goodhead and would be bound therefore to disclose his report. The real question, however, is whether they should be required to disclose it at the initial stage of arguing whether they should be forced to continue using him as their expert.
23. The burden of the defendants' argument in this regard is that, whilst it is one thing to assert, as clearly in general terms they were asserting, that their expert's report, essentially supportive of their case though it was was in many respects unsatisfactorily set out and reasoned; it is quite another to be forced to make that argument by specific reference to the details of the report, every point thereafter becoming directly available against them if ultimately they are forced to rely upon his evidence. Put on that basis, and that must necessarily have been the basis upon which the point was understood by both judges below, I, for my part, am likewise disposed to accept it.
24. Very different considerations, however, seem to me to arise once in principle it has been decided to make the order allowing a new expert to be instructed. At this point I can see no reason for continuing to withhold disclosure of the original report which is now to be discarded, and every possible reason why such disclosure should be made. In Lane v Willis, one notes, the Court of Appeal was told, on indicating that they proposed to allow the defendants to instruct a further expert, that the defendants would thereupon disclose their existing evidence. Roskill LJ, at page 335F, described that as a very proper undertaking by counsel for the defendants:

"....that if this court makes the order which he seeks, at any rate in some form, the defendants' solicitors will, as soon as they get...."

the new report,

"....send to the plaintiff's solicitors a copy not only of that report but of the various reports which Dr Carroll has already made as a result of his several examinations of the plaintiff. If the defendant does not wish to call Dr Carroll at the trial, it would then be open to the plaintiff to call him if he so desired."

25. The disclosure of the original report, as a condition of being allowed to instruct a fresh expert, would also meet the concern expressed by Sachs LJ in the third passage of his judgment cited above:

"No room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendants' medical expert being favourable to the plaintiff."

26. I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert's report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here.
27. It seems to me that there clearly ought to be a condition attached to the order here permitting the defendants to instruct a fresh psychiatrist; namely that they should, on taking up such permission, forthwith disclose Dr Goodhead's report upon which they no longer seek to rely.
28. Subject to varying the order below in that way, I would, however, uphold it. I would therefore allow the appeal but only to that most limited extent.
29. LORD JUSTICE WARD: I can see that it would be acutely embarrassing to have to denigrate one's expert's report in order to explain why confidence in him has been lost, only then to find that the application to replace him fails, so forcing the dissatisfied party either to call him when all those criticisms are bound to be thrown back in his face or, if one cannot risk his being thus discredited, to go into battle fair without any expert opinion to assist the party's case.
30. Nevertheless, expert shopping is to be discouraged, and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again. I agree, for the reasons given by my Lord, that the appeal should be allowed to that limited extent.
31. LORD PHILLIPS, MR: A claimant who brings proceedings for personal injury, whether physical or psychiatric, must accept that he is likely to have to submit to a medical examination by an expert instructed by the defendant. A claimant can properly object, however, to being subjected to a second examination without good reason.
32. In this case the reason advanced for subjecting Mr Beck to a second examination is that the first expert instructed by the defendants has proved unsatisfactory. In my judgment a claimant can reasonably object to having to be examined again if this is, or may be, because the conclusions reached by the first expert have proved more favourable to him than the defendants had anticipated.
33. I do not consider that the court should order a second examination or stay proceedings pending a second examination by a new expert if this is a possibility. So to order would be to permit the possibility of expert shopping which is undesirable. In this case, on the evidence of the defendants' solicitor, it is not said that Mr Goodhead's conclusions are unfavourable to the defendants, but that the form or manner in which those conclusions have been expressed in the report that he has prepared are so unsatisfactory as to have resulted in a loss of confidence in him as an expert.
34. I do not consider that a claimant should be required to take such an assertion on trust. Equally, I can accept that it may not be reasonable, and has been found not to be reasonable in this case, to expect defendants to advance specific criticisms of an expert's report at the time when the possibility remains that the defendants will be driven to rely upon that expert because the application to replace him has been refused.
35. The answer in this case, and in any case where a situation similar arises, is that proposed by Lord Justice Simon Brown that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping, and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done.
36. For those reasons I concur in the solution to this appeal proposed by Lord Justice Simon Brown.

Order: Dr Goodhead's report and any documents relating thereto should be disclosed in accordance with the CPR. No order as to costs of the appeal, but order below remains undisturbed.