Jersey Unreported Judgments

Disclosure - decision relating to the timing of disclosure of expert medical evidence in a clinical negligence claim.

[2017]JRC136

Royal Court

(Samedi)

31 August 2017

Advocate M. L. Preston for the Plaintiff.

Advocate J. N. Heywood for the First and Second Defendants.

CONTENTS OF THE JUDGMENT

judgment

the MASTER:

Introduction

1.        This judgment represents my decision concerning whether or not experts' reports relating to issues of liability in a clinical negligence claim should be exchanged simultaneously or sequentially. 

2.        The application is brought in respect of allegations of negligence made by the plaintiff as widow of the deceased against the defendants.  The deceased passed away on 15^th May, 2014, due to a cardiac arrest secondary to bacterial meningitis.  In broad summary the plaintiff alleges that the deceased's death was preventable.  All allegations are denied by the defendants.  It is further in issue, if it is established that either of the defendants acted in breach of duty, whether the deceased's death could have been prevented. 

3.        The present application has arisen due to my decision in Ure-v-Minister for Economic Development [2015] JRC 256.

4.        In the Ure case, I was asked to decide whether disclosure of expert medical evidence in relation to injuries suffered by a plaintiff should be disclosed sooner rather than later.

5.        This led me to state at paragraph 15 and 16 as follows:-

"15.    In light of this principle, I do not consider it appropriate either to rule that disclosure of reports must be simultaneous or production will always be sequential.  Rather I consider ultimately the issue is one of discretion.  However, as noted in the 1999 White Book, and based on the personal injury matters where I have given directions, it is often the case that a plaintiff will provide medical evidence either on an open basis or a without prejudice basis in order to provide details of the particular injuries a plaintiff has suffered and to encourage a defendant to explore settlement.  Merely because I have discretion to order reports to be exchanged simultaneously, should not be taken as encouraging parties to depart from this usual practice.  It is generally in a plaintiff's own interest to produce medical evidence of injuries suffered sooner rather than later to enable the parties to explore what the issues are between them and whether a settlement can be found.  Not to do so means that a plaintiff might be criticised for not running the case at a reasonable level of cost and preventing proceedings from progressing to trial in accordance with an orderly timetable. 

16.      Where a plaintiff produces its medical evidence early, this can lead to costs being saved.  The potential for such a saving does not just benefit the defendant or the defendant's insurers.  It may benefit the plaintiff too if the defendant is in a position to come to a view that a case ought to be settled rather than incur costs.  Requiring costs to be incurred unnecessarily may also hinder rather than help settlement.  Ordinarily therefore sensible practice requires a plaintiff to produce its medical evidence sooner rather than later and as soon as it is reasonably able to do so because that is likely to help identify what is at stake between a plaintiff and a defendant and whether or not a case is likely to settle."

6.        Advocate Heywood, for the defendants, contended that I should take the same approach in relation to issues of liability in clinical negligence cases.  This was for the following reasons:-

(i)        Clinical negligence cases almost always were determined by reference to expert evidence.  Disclosure of a plaintiff's medical evidence sooner rather than later allowed a defendant to assess the strengths of a plaintiff's case and to decide whether or not it wished to defend the plaintiff's claim or engage in settlement  discussions;

(ii)       Such disclosure would not cause prejudice to a plaintiff because generally, in drafting an order of justice, a plaintiff would require input from an expert in any event to be able to particularise allegations of negligence;

(iii)      In most cases disclosure of a plaintiff's expert medical evidence would produce less delay than simultaneous exchange and meetings of experts' because of the benefit of allowing the defendant to decide whether or not to defend a case; and

(iv)      There was also a risk of experts approaching matters from a different perspective if there was simultaneous exchange which would lead to additional cost because supplementary reports would then be required.

7.        Advocate Preston argued that, for issues of liability, the normal rule was that expert evidence should be exchanged simultaneously and there was no reason to depart from the normal rule. 

8.        The defendants in this case (or more accurately their insurers) were able to assess whether or not to defend a claim by reference to the detail set out in the order of justice.  If the detail was insufficient, a request for information could be made. 

9.        In cases where liability was at stake, as distinct from quantum, it would be wrong to allow a defendant the advantage of responding to a case rather than setting out an independent opinion as to why no negligence had occurred. 

10.      He also argued that sequential exchange might compromise the integrity of an expert's opinion because the opinion might be shaped to respond to the case as framed. 

Decision

11.      In Ure at paragraph 13 I noted that, in England and Wales, current practice required consideration of limiting expert evidence to a single joint expert.  I also noted that it appeared to have been the practice of the English Courts prior to introduction of its current civil procedure rules in 1999 that in an action for personal injuries (which covered allegations of clinical negligence), generally medical reports were produced on a sequential basis.  

12.      However, other parts of the Civil Procedure Rules suggest, in relation to actions for clinical negligence, that where the issue to be covered in an expert's report was so important to the likely outcome of a case the parties should be entitled to instruct their own expert, thus modifying the practices described above.  This was the approach taken by the Court of Appeal in S v Birmingham Health Authority [2001] Lloyd's Rep. Med. 382 (discussed at paragraph 35.7.3 of the Civil Procedure Guide 2017 Volume 1) where liability was in issue. 

13.      While, therefore, the English Civil Procedure Rules require the relevant judge to consider whether to give directions for a single joint expert, the English Court of Appeal appears to have recognised, at least in clinical negligence cases, that such an approach is not appropriate where expert evidence goes to the heart of a dispute between the parties on liability. 

14.      What approach should I take in this jurisdiction?  Ultimately, notwithstanding the introduction of the overriding objective to the Royal Court Rules in June this year, when cases come to trial, they are adjudicated by the Royal Court applying an adversarial system.  The recent changes have also taken a more cautious approach to altering Jersey's civil procedure rules than has occurred in England.  Furthermore, the changes to the Royal Court Rules introduced in June 2017 did not make any changes to the Rules concerning expert evidence, other than encouraging parties to consider whether evidence can be given by a single expert.  The focus of this was intended to be on evidence that was not central to a dispute and to encourage parties to agree issues where expert evidence was required but which were part of, but not at the heart of matters the Royal Court would have to decide at trial.  Accordingly, for issues that are key or core to a dispute on liability, the adversarial system has not been altered. 

15.       Where there is a dispute on liability, I therefore consider that in the ordinary course simultaneous exchange should take place.  I accept there may be circumstances where, as a matter of discretion, the Court might elect to make a different order.  However, there would have to be special justification for that order which does not arise in the present case (c.f. paragraph 18 of Ure).  

16.      I further consider that the importance of simultaneous exchange for issues that go to the heart of a dispute outweighs the possible saving in costs that might occur by sequential exchange.  Even then I am doubtful as to whether a saving in costs might occur because if an order of justice is properly pleaded then a defendant to a claim in clinical negligence should know the case it has to meet.  The claim should also have been set out in a pre-action communication (see practice direction 17/01).  A defendant, moreover, will normally have access to the relevant medical notes of a plaintiff.  A defendant is therefore able to form a view on whether or not to defend the claim or to engage in settlement without the need for sight of the detailed medical evidence to be relied upon by a plaintiff at trial. 

17.      I am also not persuaded that simultaneous exchange would lead to increased costs because experts might approach matters from a different perspective.  The standard directions for meetings of experts require experts to meet unless there is no point in doing so and to produce a statement explaining any differences.  Any differences in approach in the ordinary course can therefore be addressed at such a meeting.  In more complex cases supplemental reports could also be filed to address any difference in approach if the issue arises.  Even if there is some additional risk of extra cost being incurred in some cases, I am not persuaded such a possibility outweighs the general principle of evidence that goes to the heart of a case on liability being exchanged simultaneously. 

18.      Finally, I consider that for the majority of personal injury cases there is a difference between a plaintiff providing expert evidence of injuries, to enable a defendant (or any insurers of that defendant) to carry out a monetary assessment of the appropriate level of compensation for such injuries, and resolution of a contested issue of liability.  The latter generally requires resolution though the adversarial system as long as the overriding objective is adhered to; the former, in most cases, unless the calculation of damages is complex or very large, is an assessment of the range of damages that a court might order and a matter of negotiation.  I say this because most personal injury cases, where I have given directions or issued procedural judgments, have not been significant in value and have been resolved by agreement. 

19.      I do not agree, however, with the concerns expressed by Advocate Preston that sequential exchange might compromise the integrity of a defendant's expert and so simultaneous exchange should be ordered.  I dealt with this in Ure at paragraph 17 where I stated as follows in relation to sequential exchange:-

"17.    I also consider that such an approach does not compromise the integrity of a defendant's expert.  Such an expert is still an expert and still owes the same duties to the Royal Court which are paramount.  The fact that a defendant's expert produces a critique of a plaintiff's expert report rather than producing his or her report does not affect the duties that expert owes to the court to provide an independent opinion.  These duties prevail over any obligations owed by an expert to a defendant.  The critique must therefore still be an independent opinion."

20.      The combination of this decision and Ure might mean, where expert evidence is required for issues of quantum as well as liability, that simultaneous exchange is ordered for issues of liability and sequential exchange is ordered for issues of quantum.  Evidence relating to quantum may also be ordered at a later date as a matter of case management.  This is all a matter of discretion at a directions hearing.  In this case this issue does not arise because no expert evidence at present is adduced in relation to issues of quantum.  However, I have referred to this issue to provide some general guidance to those involved in clinical negligence disputes. 

21.      Accordingly, I order simultaneous exchange of the two categories of experts' reports for which permission has already been granted.  When this judgment is handed down, as agreed between the parties, I will rule on the date by which simultaneous exchange should take place and any other directions required as a consequence. 

Authorities

Ure v Minister for Economic Development [2015] JRC 256. 

S v Birmingham Health Authority [2001] Lloyd's Rep. Med. 382. 

Civil Procedure Guide 2017 Volume 1.