Jersey Unreported Judgments

Personal injury - reasons relating to application by the plaintiff to rely on additional expert's report.

[2015]JRC086

Royal Court

(Samedi)

29 April 2015

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate M. P. Boothman for the Plaintiff.

Advocate T. V. R. Hanson for the Defendant.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-7
3.	The experts' reports in orthopaedics	8-25
4.	The defendants' complaints	26-29
5.	The Law	30-41
6.	Decision	42-52

judgment

the master:

Introduction

1.        This judgment represents my detailed written reasons in respect of the plaintiff's application to rely on an additional orthopaedic expert's report specialising in neck and spinal injuries, in addition to the report of a general orthopaedic consultant, or alternatively to rely on the report of the specialist orthopaedic consultant instead of the general orthopaedic consultant. 

Background

2.        The present proceedings arise out of a road traffic accident which occurred on 23^rd March, 2011, on La Grande Route de St Jean.  The plaintiff at the time of the accident was driving a Ford Transit Van.  The defendant was driving a VW Polo.  The plaintiff alleges that the accident was caused by the negligence of the defendant.  Proceedings were commenced on 28^th February, 2014, close to expiry of the relevant limitation period. 

3.        An answer was filed on 27^th March, 2014, admitting negligence but not admitting the loss or damage claimed by the plaintiff. 

4.        By an act of court dated 27^th May, 2014, judgment was entered in relation to liability with issues of causation and quantum referred to the Royal Court for determination. 

5.        By paragraph 6 of the act of court of 27^th May, 2015, each of the plaintiff and the defendant were given permission to instruct various experts including one expert in the field of orthopaedic surgery. 

6.        By paragraph 6 of an act of court dated 25^th November, 2014, the timetable for the exchange of experts' reports was varied.  For the purposes of the present application the application in respect of an expert in the field of orthopaedic surgery was varied so that mutual exchange was to take place on 16^th January, 2015. 

7.        By reference to the act of court of 25^th November, 2014, the parties agreed to delay the exchange of an accountant/economist expert report.  During the course of argument I was told this was because the need for such reports very much depended on the extent to which the relevant medical experts, in particular the orthopaedic experts, were in agreement or not as the case may be. 

The orthopaedic expert reports

8.        Notwithstanding the procedural history of the plaintiff's claim, while proceedings were only commenced in February, 2014, the plaintiff first obtained a report from an orthopaedic expert in 2011 in relation to his accident.  The report was obtained from Mr David Pring ("Mr Pring").  Mr Pring is a fellow of the Royal College of surgeons in England and Scotland and has been a consultant surgeon in orthopaedics trauma since 1992 in Guernsey.  

9.        Mr Pring prepared a second report in respect of the plaintiff's injuries which report is dated 20^th September, 2013, although it appears it was subject to some minor amendments on 25^th November, 2014, and 16^th December, 2013.  Both these reports were provided to the defendant to agree interim payments for the plaintiff. 

10.      When experts reports came to be exchanged in early January 2015 pursuant to the timetable set out in the act of court of 25^th November, 2014, (albeit there had been slippage of a couple of weeks), the plaintiff disclosed a report from Mr John O'Dowd ("Mr O'Dowd") a consultant spinal surgeon who is also a fellow of the Royal College of surgeons and practices in London.  The defendant's English solicitors, Clyde & Co immediately objected to service of the report from Mr O'Dowd because the plaintiff did not have permission to rely on the evidence of a second orthopaedic expert. 

11.      It is also right to observe that the experts' reports disclosed by the defendant from their orthopaedic specialist, Professor R M Atkins, and a neurological expert had both been prepared on the basis that Mr Pring was the plaintiff's expert and had responded to the views expressed by Mr Pring. 

12.      The basis for the plaintiff's application was that he had lost confidence in Mr Pring and accordingly should be given leave to rely upon another expert.  This was said to be because of Mr Pring's contradictory conclusions in relation to the neck and spinal injuries.  The plaintiff made it clear he did not take issue with Mr Pring's conclusions in relation to the other injuries suffered by the plaintiff.  It was common ground between the parties that the other injuries suffered by the plaintiff were relatively minor and the real issue between the parties was the extent of the plaintiff's injuries to his neck and lower back.  If these are as extensive as the plaintiff claims then the amount of compensation the plaintiff is likely to recover will be significant.  If, on the other hand, the condition of the plaintiff's neck and back is not due to the road accident but to some other cause, then the plaintiff's claim for damages is more modest. 

13.      To evaluate these rival contentions it is necessary to consider the detail of the reports of Mr Pring and Mr O'Dowd. 

14.      In his 2011 report Mr Pring stated as follows:-

"4.03 Mr Pallot sustained an acute neck sprain.  This was a direct consequence of the accident;

4.04 Mr Pallot continues to experience neck pain.  In my opinion this is related to the accident;

4.05 Mr Pallot is not prone to developing osteoarthritis of his cervical spine as a result of the accident;

4.06 Low Back - immediately after the accident Mr Pallot was aware of low back pain;

4.07 Mr Pallot sustained an acute confusion to his low back and a low back sprain.  This was a direct result of the accident;

4.08 Mr Pallot continues to experience low back pain.  This is a consequence of the accident;

4.09 Mr Pallot had pre-existing but asymptomatic degenerative disease of the L4/5 disc space and as a consequence of his degenerative disease he has developed a grade 1 'spondylolisthesis"

15.      There are two hypotheses as to the causation of Mr Pallot's current low back pain which were either that these were a part of a natural progression of his pre-existing degenerative disease or that the accident resulted in an asymptomatic degenerative disease becoming symptomatic due to "destabilisation".  At paragraph 4.14 Mr Pring therefore stated:-

"Either hypotheses are tenable.  On the balance of probabilities, I would favour hypothesis b) as there is a direct temporal relationship between the accident and the onset of his symptoms.  Furthermore, the mechanism of injury is compatible with his current symptoms."

16.      In his 2013 report Mr Pring stated as follows:-

"3.04 Mr Pallot sustained an acute neck sprain.  This was a direct result of the accident;

3.05 Mr Pallot continues to experience neck pain, indeed it has increased.  He has recently developed weakness and pins and needles (two years, three months following the accident) which is compatible with C7 nerve root entrapment bilaterally from his neck;

3.06 Mr Pallot had pre-existing degenerative C6/7 disc space.  This has progressed;

3.07 In my opinion the progression of his degenerative changes of cervical spine and the late onset of neurological symptoms is not related to the accident but rather to the natural progression of the disease;

3.08 Mr Pallot had persistent neck pain more than three months following the accident thus on balance of probabilities a component of his neck pain is attributable to the injury.  As a guesstimate I would opine that the component is of the order of 25%.  I accept however this is purely arbitrary."

17.      In relation to low back pain, Mr Pring repeated the conclusion set out in his 2011 report which is found at paragraph 3.12 of 2013 report as follows:-

"3.12 Mr Pallot had pre-existing but asymptomatic multilevel degenerative disease with a pars defect at the L4/5 space.  Radiologically there has been no progression of the slip.  Between 30 and 40% of patients with degenerative spondylolisthesis develop progressive disease therefore on the balance of probabilities in the absence of the accident he would not have become symptomatic;

3.13 It is my opinion therefore that Mr Pallot's ongoing back pain is related to the accident and not to progression of his pre-existing degenerative spine."

18.      At paragraph 3.26, the reason why Mr Pallot stopped working the summer of 2014, according to Mr Pring was as follows:-

"In my opinion the predominant reason for him stopping work in the Summer of 2013 was due to his progressive cervical spine disease and upper limb neurological symptoms which in my opinion are unrelated to the accident."

19.      The plaintiff, through Advocate Boothman, contended that there was contradiction between these two reports as in 2011, Mr Pring's opinion was that the neck pain the plaintiff experienced was caused by the accident, whereas in 2013 the neck pain the plaintiff was experiencing according to Mr Pring was due to pre-existing degenerative changes to the plaintiff's spine. 

20.      In his report, Mr O'Dowd, at paragraph 77 concluded that the condition of the plaintiff's neck at the time of the accident was of asymptomatic degenerative change.  He then continued as follows:-

"78. I believe the correct label for the injuries sustained in the cervical spine would be whiplash associated disorder following whiplash injury. 

79. I believe that from approximately autumn of 2011 and specifically by the time of the review in the clinic on 26 October 2011 he has developed a more significant chronic widespread pain programme with combined physical and psychological manifestations of that."

21.      In relation to the back injury at paragraph 81 Mr O'Dowd stated "The condition of his low back therefore at the time of the index accident was of asymptomatic underlying degenerative and developmental abnormality."

22.      His report then continued as follows at paragraphs 82:-

"I believe the sequence of events in the low back represents a similar sequence of events to the cervical spine.  There is no mention at all of low back pain in the initial post-accident records, but there is localisation of low back pain by the time of the physiotherapy assessment on 3 May 2011 and subsequently the causal relationship is made between this back pain and the index accident.  For the court to find a causal relationship he would have had to have had onset of some degree of back pain immediately following the accident which is his recollection.  If the onset of this pain was more than say one to two weeks from the date of index accident then I believe it is more likely this pain has occurred unrelated to the accident itself.  The low back pain symptom was less prominent initially but again by November 2011 these symptoms were becoming part of a more widespread chronic pain syndrome."

23.      At paragraph 83 Mr O'Dowd appears to draw together his conclusions as follows:-

"The deterioration in neck and back symptoms is documented in the medical records I have reviewed above and by the time of my clinical review today, the pain diagram is much more representative of a widespread chronic pain syndrome than representative of an isolated musculoskeletal problem in the neck and/or the back.  He has pain in all four limbs associated with neurological symptoms and pain extending the length of the spinal column from the occiput down to the coccyx.  It is my opinion that the widespread pain syndrome appears to have been triggered by the index accident, but I believe the causation of the symptoms beyond the first few months needs to be the subject of separate specialist assessment." (my emphasis)

24.      In other words Mr O'Dowd's opinion appears to be that the widespread pain being suffered by the plaintiff was triggered by the accident. 

25.      The report filed by the defendant's orthopaedic expert, Professor Atkins, in brief concluded that the degenerative changes to the plaintiff's spine were not caused by the accident but would have occurred in any event.  In relation to the plaintiff's low back pain, the evidence of Professor Atkins in summary was that this pain was accelerated by the accident but would have commenced in any event some two to three years after the accident had taken place. 

The defendant's complaint and the plaintiff's response

26.      The real complaint advanced by the defendant was that the plaintiff was engaged in expert shopping by seeking to rely on the report of Mr O'Dowd because the 2013 report of Mr Pring was not favourable to the plaintiff.  The plaintiff was in particular accused of cherry picking because he still wanted to rely on parts of Mr Pring's report in respect to other injuries and only relying on Mr O'Dowd's report for injuries to the plaintiff's neck and spine.  The defendant also criticised the plaintiff for not revealing that he was no longer going to rely on Mr Pring before the exchange of experts' reports took place.  Advocate Hanson for the defendant further argued it would be inappropriate to change experts where the defendant had relied upon the reports of Mr Pring already produced both in relation to discussions concerning interim payments and in relation to preparation of the defendant's expert evidence, in particular Professor Atkins. 

27.      The defendant further objected to the fact that Mr Pring did not in his expert evidence indicate the need for any more specialist expert evidence in his reports.  Mr O'Dowd had also not seen or reviewed Mr Pring's reports.  Finally it was pointed out that Mr O Dowd's opinion was qualified in that evidence from a pain specialist was required and yet the plaintiff's pain specialist deferred to the views of an orthopaedic expert.  This lead to a circularity in the evidence which it was unfair to require the defendant to have to deal with and lead to extra cost. 

28.      As an alternative if Mr O'Dowd's report was to be allowed, the defendant sought to recover wasted costs. 

29.      The plaintiff denied he was expert shopping and rejected the defendant's complaints.  It was submitted clearly on his behalf that confidence had been lost in Mr Pring because it was said Mr Pring's reports were contradictory.  The plaintiff further argued that the directions given simply required exchange of one expert and to that extent by disclosing Mr O'Dowd's evidence that is what had occurred.  In the plaintiff's skeleton, the plaintiff therefore contended as a fall-back position that he would abandon reliance on Mr Pring's reports including in respect of other injuries and simply rely on Mr O'Dowd's evidence if the court was not minded to allow the plaintiff to call evidence from two orthopaedic experts albeit with one specialising in spinal and neck injuries.  Mr O' Dowd had not seen Mr Pring's evidence because the plaintiff wanted an entirely independent opinion not a review of an earlier opinion.  The reports of Mr Pring could now be put to Mr O' Dowd in a meeting of experts, if not before, and at trial. 

The Law

30.      Both counsel agreed that it was not acceptable for a party to engage in expert shopping and in such circumstances the court could refuse to admit an opinion from a second expert.  An example of this occurred in Morley v Reed [2015] JRC 050, albeit that decision arose out of the status of the Motor Insurers Bureau as a co-defendant. 

31.      The extent to which a party may change experts does not otherwise appear to have been considered by the Royal Court.  I was therefore referred to a number of decisions of the courts of England and Wales.  Although these decisions are based on the English civil procedure rules, which are not the same as Jersey's rules, there are no material differences, for the purposes of the argument before me, between the powers of the English High Court to limit expert evidence and the powers set out Rule 6/20 of the Royal Court Rules 2004, as amended, as discussed in Morley v Reed.  It is therefore right to look at these decisions. 

32.      In Beck v Ministry of Defence [2003] EWCA Civ 1043, the issue relevant to the present proceedings was whether a party should be allowed to substitute one expert for another without being required to disclose the first expert's report. 

33.      Paragraphs 24 to 26 of the Beck case read as follows:-

"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."

34.      Lord Justice Ward at paragraph 30 also stated as follows:-

"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."

35.      The present case is different from the Beck case because the defendant here has already seen Mr Pring's report.  The defendant at any meeting of experts, in the future assuming this included Mr O'Dowd, is therefore already in a position to make use of Mr Pring's report to persuade Mr O'Dowd to either agree with the defendant or modify his opinion.  The defendant is also able to use such reports in cross-examination if the defendant thought it appropriate to do so. 

36.      In Hajigeorgiou v Vasiliou [2005] EWCA Civ 236, the English Court of Appeal held that where directions simply required disclosure of one expert report, without naming the expert report, if a party had indicated it was going to consult expert A and then consulted expert B as well and only chose to disclose the report of expert B, the party had complied with the order and was entitled to call expert B.  At paragraph 18 the judgment stated as follows:-

"We do not find it at all surprising that the order did not identify the name of the expert who could be relied on by the defendant in circumstances where he could not do the same in relation to the claimant.  It would have been possible to make an order giving the defendant permission to call and rely on the report of Mr Watson, and giving the claimant permission to call and rely on the report of an unnamed expert in the field of restaurant valuation and profitability.  But that would have been an unusual order to make. Judge Levy may well have taken the view that, if he could not restrict the claimant to a named expert, then it would not be right to restrict the defendant to a named expert.  In these circumstances, we find it impossible to hold that the failure to name Mr Watson in the order of 21 July was an accidental slip.  In these circumstances, it was not necessary for the plaintiff in that case to disclose the report of the first expert consulted by the plaintiff."

37.      However, the court went onto say that if permission was required to instruct a second expert, then Beck was rightly decided and where a court was given permission to a party to rely on a second replacement expert it would only do so on condition that the report of the first expert was disclosed (see paragraph 27).

38.      In Edwards v Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, the particular issue was that the plaintiff contended that advice disclosed by a plaintiff prior to the issue of proceedings should not be disclosed and that the power to require disclosure of the first expert instructed, where a party wished to retain a second expert, only related to experts retained after the issue of proceedings.  This submission was rejected.  Paragraph 27 of the court's decision states:-

"I am quite unable to see any difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert only instructed, for the same purpose, post-issue.

Conversely the damaging features of expert shopping are exactly the same whether it is undertaking before or after issue."

39.      At paragraph 30 the court went on:-

"Authority apart, it seems to me that the imposition of a condition of disclosure is as justified in pre-issue as in post-issue cases.  I certainly accept that there may be perfectly good reasons for a party to wish to instruct a second expert.  Those reasons may not always be that the report of the first expert is disappointingly favourable to the other side, and even when that is the reason the first expert is not necessarily right.  That means that it will often, perhaps normally, be proper to allow a party the option, at his own expense, of seeking a second opinion.  It would not usually be right simply to deny him permission to rely on expert B and thus force him to rely on expert A, in whom he has, for whatever reason, lost confidence.  But that is quite different from the question whether expert A's contribution should be denied to the other party by the fact of who instructed him.  An expert who has prepared a report for court is different from another witness.  The expert's prime duty is unequivocally to the court.  His report should say exactly the same whoever instructed him.  Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported.  Thus although the instruction of a medical expert is a matter almost of course in most personal injury cases, it is appropriate for the court to exercise the control afforded by CPR 35.4 in order to maximise the information available to the court and to discourage expert shopping.  Whilst at the time of Access to Justice this development may not have been foreseen, the ethos of litigation which it established is promoted rather than prevented by the exercise of this power."

40.      The court's final conclusions were as follows:-

"31 For these reasons I would hold that the power to impose a condition of disclosure of an earlier expert report is available where the change of expert occurs pre-issue as it is when it occurs post-issue.  It is of course a matter of discretion, but I would hold that it is a power which should usually be exercised where the change comes after the parties have embarked upon the protocol and thus engaged with each other in the process of the claim.  Where a party has elected to take advice pre-protocol, at his own expense, I do not think the same justification exists for hedging his privilege, at least in the absence of some unusual factor.  As Brooke LJ observed in Carlson (cited at paragraph 15(iv) supra), a party is then free to take such advice on the viability of his claim as he wishes.  An expert consulted at that time and not instructed to write a report for the court is in a different position, and outside CPR 35.2."

41.      Finally, in Hort v Charles Trent Limited [2013] EWHC 3966 (QB Eady J. stated in allowing to an appeal where a District Judge refused to allow a change of expert on the basis of a loss of confidence.

"5. If it would not usually be right to deny such a party the opportunity, I find it difficult to see what is so unusual about the present circumstances that it justifies taking what should be apparently an exceptional course.  As I have pointed out already, there appears to me to be no prejudice to the respondent.  It would just give the claimant the opportunity to put his case more effectively, or at least to present it as he wishes. 

6. The district judge also appears to have become confused in the course of his extempore ruling in one important respect.  Having referred expressly to the fact that the claimant was seeking to substitute one expert for another at paragraph 5, he later, several times, at paragraphs 12, 14 and 15, proceeds on the basis that he was trying to introduce "further expert evidence".  That was mistaken. It was in that context that he said at paragraph 13 that "... I must bear in mind, it seems to me, very firmly, that expert evidence must be kept under control".

7. The emphasis here appears to me to have been on discipline for discipline's sake and the overriding objective has slipped temporarily out of view.  There was, as I have noted, no question of having to balance the claimant's advantage in calling Dr Sawle against any countervailing prejudice to the respondent.  So far as I can see, there was none. 

8. In conclusion, the district judge did not take into account the relevant passage from the judgment of Hughes LJ to which I have referred.  Moreover, he did take into account his own mistaken belief that the claimant was attempting to introduce "additional" or "further" evidence, whereas all he wanted was to substitute one expert for another.  I am driven to the conclusion that his decision, albeit in a case management context, can be characterised overall as wrong, and I therefore allow the appeal."

Decision

42.      What emerges from the authorities, is that firstly a plaintiff is always to obtain a second opinion at his/her own expense (as indeed can a defendant) (see paragraph 30 of the Mr Justice Eady J, decision in Edwards v Tubb).  Where a party wants a second opinion, it is understandable that party will not at that stage disclose to the other party or its advisers the fact that a second opinion is being sought.  At that stage the party seeking the second opinion is entitled to rely on the cloak of privilege.  It is also understandable why initially a second expert will not see or be aware of the first opinion so that any view is that of the second expert alone.  The purpose of the second opinion is to allow a party to review the merits of the case.  A second opinion may be the same as or even less favourable than the first opinion in which case the party seeking the second opinion will not want to compromise its chances of resolving the claim or undermining the expert it has already instructed.  Secondly, seeking a second opinion may indeed encourage a party to settle, because that party may then be convinced of the wisdom of settling on the basis of the expert evidence it has received, rather than advancing a case at trial.  The court should not discourage parties looking to settle their disputes where on advice it is appropriate to do so. 

43.      If the second opinion has been obtained where the order for directions simply permits a party to disclose one expert in that relevant field, without identifying who the expert is, that party is entitled to choose between the expert opinions it has obtained and to make disclosure of the expert report which it wishes to rely on at trial.  For so long as the other party is not aware of the other expert or the content of the other expert's report, the undisclosed report remains privileged.  

44.      However, once a party has obtained a second opinion and wishes to rely on that opinion, having revealed the existence of an earlier opinion, or the contents of an earlier opinion to the other party to the dispute, permission is needed to rely on the second report and, if given, disclosure of the first report is usually ordered.  The granting of permission is subject to the court being satisfied that the party seeking to rely on a second opinion is not simply engaging in expert shopping.  The court has to be satisfied that there is a loss of confidence in the first expert. 

45.      If disclosure of the first expert report which is no longer relied upon has not been made, in assessing whether there is expert shopping, the other party is not entitled to require disclosure of the first report until the court has reached a decision that the second expert's report can be used.  Rather this only occurs as a consequence of the Court allowing a change of experts.  

46.      In this case disclosure has been made of both reports and the plaintiff has stated on affidavit (albeit filed only during the hearing) that he has lost confidence in Mr Pring.  The defendant was critical of this and suggested that the plaintiff had engaged in expert shopping, because he did not like Mr Pring's second report. The defendant argued that the developments in Mr Pring's second report were also understandable because they reflected the passage of time since the accident took place where development of a degenerative condition had occurred. 

47.      When evaluating an assertion by a plaintiff that confidence has been lost in an expert, I consider that some degree of latitude should be allowed to an assertion by a plaintiff that confidence has been lost before a court reaches a conclusion that it would not allow a party to rely upon a new expert.  While therefore Mr Pring may able to explain what is said in his 2013 report compared to his 2011 report, I can see why the plaintiff has read the reports in the way he did and why he says he has lost confidence.  Loss of confidence, while it should be tested by the court, and should not be allowed to be used as a cover for expert shopping, will contain an element of subjectivity because ultimately it is a party, i.e. the plaintiff in this case, asserting that confidence has been lost.  The court's task is to test such an assertion to see whether there is a basis for it and that it is not just expert shopping. 

48.      In this case, I consider there is a basis for the plaintiff saying he has lost confidence in Mr Pring because the 2011 and 2013 reports are not the same.  The fact that their differences might be explainable does not mean that a party should be deprived of advancing an expert where an expert previously retained has advanced potentially different conclusions at different times.  While it would have been helpful for Mr O'Dowd, once he had expressed an initial view, to have seen Mr Pring's reports; that did not occur as the plaintiff's advisers ran out of time because exchange of reports was required. 

49.      In exercising the discretion vested in me however, the plaintiff should not be allowed to rely on two reports.  He only has permission for one expert and having relied on Mr Pring needs permission to replace him with Mr O'Dowd.  What the plaintiff cannot do is on the one hand say he has lost confidence in Mr Pring and on the other still seek to rely on Mr Pring for other injuries.  That is expert shopping.  While I accept that confidence has been lost the plaintiff must elect either to remain with Mr Pring or Mr O'Dowd, but not both.  The plaintiff through Advocate Boothman was quite clear that if that was my view then the plaintiff would rely on the report of Mr O'Dowd. 

50.      This election means that the plaintiff will have to deal with the criticisms advanced by Advocate Hanson of Mr O'Dowd's report and the potential circularity of evidence.  However these difficulties are not a basis to refuse the permission sought.  Rather they are matters for the meeting of experts and for cross examination at any trial.  I also made it clear that at trial, subject to the views of the trial judge, the defendant is entitled to rely on and put the reports of Mr Pring to Mr O'Dowd in cross-examination if the defendant wishes to do so.  Advocate Boothman very fairly accepted this could occur. 

51.      I also accepted the defendant's submission that wasted costs had been incurred by the defendant in preparing reports on the assumption that the plaintiff's orthopaedic expert would be Mr Pring.  Accordingly, I ordered the plaintiff to pay both the wasted costs of the defendant's experts in relation to Mr Pring's evidence and further that any future costs order against the defendant should not include any costs associated with Mr Pring's evidence. 

52.      I further ordered that the wasted costs should be paid on an indemnity basis.  This was because while I accepted that the plaintiff had lost confidence in Mr Pring, it took twelve months to instruct Mr O'Dowd, which resulted in the plaintiff not informing the defendant at an earlier stage that he was no longer relying on Mr Pring, before the time came to exchange reports.  This delay also meant that Mr O'Dowd has not yet seen Mr Pring's reports, as far as I am aware, which could have occurred if Mr O'Dowd had been retained much earlier.  Although a party is entitled to seek a second opinion at its own expense, if it wishes to do so, it should do so promptly; if not that party may well be liable for wasted costs.  The plaintiff in this case should have obtained a second opinion much earlier and should have therefore been able to inform the defendant much earlier than his advisers did, that he was relying on a different orthopaedic expert report.  This failure to do so means that the defendant incurred costs in instructing its own experts to respond to Mr Pring's reports which work is now unnecessary.  The failure to obtain a second opinion promptly and the unexplained delay of 12 months therefore meant that I concluded that wasted costs should be paid on an indemnity basis. 

Authorities

Morley v Reed [2015] JRC 050.

Royal Court Rules 2004.

Beck v Ministry of Defence [2003] EWCA Civ 1043.

Hajigeorgiou v Vasiliou [2005] EWCA Civ 236.

Edwards v Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136.

Hort v Charles Trent Limited [2013] EWHC 3966 (QB).