Jones v Taunton & Somerset NHS Foundation Trust  EWHC 563 (QB)
This article originally appeared in Issue 1 (May 2019).
The court permitted a Defendant NHS Trust to substitute its medical expert eleven weeks before trial where its original expert had stated that the Claimant’s experts had raised matters that went beyond his expertise.
The case related to a brain injury suffered by the Claimant in utero in November 1995. It was alleged that the Claimant’s mother had negligently been provided with a drug (Nifedipine). Initially, the Claimant’s causation case was founded on the allegation that the drug had caused the mother’s blood pressure to drop, but the Claimant later clarified in response to Part 18 requests for further information that it was also alleged that the drug had crossed the placenta and had impacted directly upon the fetus in utero.
At a CMC in January 2018, permission was given for both parties to instruct obstetric experts on breach and causation. Expert reports were exchanged in late September 2018. On 7 November 2018 the Defendant’s obstetric expert wrote to the Defendant’s solicitors and stated that the Claimant’s reports and the appended literature raised issues that: “far exceed my area of expertise” and were best addressed by an expert in fetomaternal medicine. The Defendant then sought assistance from another expert with the appropriate expertise but did not make an application to substitute the expert until February 2019, approximately three months before trial (May 2019).
HHJ Blair QC was critical of the Defendant’s conduct in that there had been a lack of full transparency and prompt action as these issues arose, but acknowledged that the case was complex and that the Defendant would be at a serious disadvantage if it was forced to proceed to trial with an expert who considered that crucial aspects of the case on causation were beyond his expertise. On the other hand, it was noted that the Claimant would be at some disadvantage if the substitution were allowed, in that the Claimant would now have to consider and respond to a new expert report shortly before trial.
Ultimately, the court allowed the Defendant’s application. The key reason appears to be that it was necessary in order for the Defendant to be able to advance its case on the core issues on which the court would require substantial expert assistance. Any prejudice to the Claimant was mitigated by a direction that the forthcoming trial would deal with breach of duty only, with causation to be addressed at a further hearing at a later date.
This case underscores the principle of equality of arms, and that each party should be able to put forward the whole of their case unless there are strong reasons militating against it. It is also to be noted that, given there had already been an exchange of expert reports at an earlier stage in proceedings, there was no acute issue relating to disclosure of a previous expert in order to discourage expert shopping: (c.f. Beck v Ministry of Defence  EWCA Civ 1043 and Vilca v Xstrata Limited  EWHC 1582). The court rejected an argument that a possible draft report from the Defendant’s new expert ought to be disclosed as a condition of permission being granted.
Bowman v Thomson  EWHC 269 (QB)
The court rejected a Defendant’s application that disclosure of the Claimant’s previously instructed expert’s report (in whom the Claimant had lost confidence) should retrospectively be made a condition of his permission to rely on a second expert upon whom the Claimant had already been granted permission to rely.
In the substantive claim, the Claimant alleged that he had been given negligent treatment and advice by the Defendant GP during a home visit when he reported symptoms of back pain. It was alleged that, as a result, there was a delay in referring him to hospital, and consequently he underwent decompression surgery for cauda equina syndrome from which he made an incomplete recovery.
Prior to the issue of proceedings, he obtained an “advisory report” from an expert urological surgeon on causation, and a more formal report on causation once proceedings had been issued. However, by the time of the case management conference, the Claimant had lost confidence in his expert, and obtained a second opinion from a different urological surgeon. Permission was sought at the CMC to rely on the report of that second expert. The fact that another expert had previously been instructed and then abandoned had not been enquired about and not been disclosed by the Claimant at the time permission was granted. Accordingly, permission was granted without any condition attached that the first report should be disclosed.
Upon becoming aware that the Claimant had obtained previous expert evidence, the Defendant applied for a condition to be attached to the grant of permission for the second expert, specifically that the Claimant be required to disclose the evidence of the first expert.
The judgment at first instance
HHJ Roberts rejected an application for such a condition to be attached to the permission retrospectively under rule 3.1(m) of the Civil Procedure Rules (the power to “take any other step or make any other order for the purposes of managing the case and furthering the overriding objective…”). On appeal against that decision, the Defendant argued that the judge had erred in his approach to rule 3.1(m), and also that he could, and ought to have, varied the order under rule 3.1(7).
The judgment on appeal
Dingemans J dismissed the appeal. After reviewing the key authorities (Lane v Willis  1 WLR 326, Beck v Ministry of Defence  EWCA Civ 1043, Vasiliou v Hajigeorgiou  EWCA Civ 236, Edwards-Tubb v JD Wetherspoon Plc  EWCA Civ 136) he concluded that “if there is a principled way in which a vehicle can be identified to order disclosure of a prior privileged report, disclosure should be ordered. However, attempting to use general case management powers or making a variation of an order after the event is not permitted.” He noted that the Defendant had not asked if the Claimant had previously instructed a different expert prior to, or at the time of, the CMC, although it could have done so, and “the time for asking was before the order was made”.
Although Dingemans J. tried to emphasise that this was a “very fact specific decision”, it could be of great significance to the way litigation is conducted. Its effect appears to be that if one party knows the opposing party has previously instructed a different expert prior to the grant of permission to rely on expert evidence, that party can seek an order that permission is conditional on disclosure of the first report which the court will normally grant in order to discourage expert shopping.
However, if the party does not know about the previous instruction, and permission is granted to rely on the second expert without any conditions attached, the court will be unlikely to go back and vary the permission granted by attaching a condition when that party subsequently discovers the position.
It would therefore seem to be important for parties to establish whether or not any changes of experts have occurred prior to permission being sought and granted in the first instance – despite that being an outcome deplored by both the parties and the judge in this case.
Mays (by his litigation friend, the Official Solicitor) v Drive Force (UK) Ltd  EWHC 5 (QB)
The court permitted the parties to adduce expert evidence on life expectancy where the Claimant had a number of co-morbidities, the claim was of substantial value, and evidence on life expectancy could make a significant difference to the quantification of the claim.
In this sad case, the Claimant had fallen from a lorry in a workplace accident and suffered catastrophic brain and orthopaedic injuries. Liability had been admitted, and a range of experts had been instructed on both sides to assist the court with quantifying damages. The Claimant had a range of co-morbidities which were unrelated to the accident, including smoking, hypertension, obesity and ulcerative colitis.
The Defendant sought permission for the parties to rely on expert evidence dealing specifically with life expectancy, in view of the Claimant’s range of co-morbidities, which the instructed experts were not able to adequately address themselves.
The Claimant opposed the application, inter alia on the basis that life expectancy matters are usually dealt with by the clinical experts, and separate expert evidence on life expectancy (relying on statistics) was usually reserved for cases in which those clinicians interpreted the data in fundamentally different ways. He also raised a floodgates argument – that such experts would become common whenever life expectancy was in issue.
The court concluded that such evidence was justified in this case. It decided that the authorities showed that the court should consider whether factors unrelated to the accident have impacted on life expectancy “in an appropriate case” and that it was a matter for the trial judge as to whether or not that evidence proved to be of assistance.
The decision shows that the relevant factors in favour of admitting such evidence are: (1) where there is a range of significant co-morbidities (2) the other experts are clearly unable to deal adequately with the issue themselves (3) the size of the claim, and (4) whether or not evidence on life expectancy could potentially make a significant difference to the quantum of the claim.