piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Getting your hands on an undisclosed expert report and more

09 September 2016 Ian-Miller case report, Experts, personal injury, Privilege, cpr (0)
When the other side wants to change expert are you entitled to their original expert’s reports and other documentation containing the substance of the expert’s opinion? This was the question considered in the case Allen Tod Architecture v Capita Property and Infrastructure Ltd ([2016] EWHC 2171). Unsurprisingly the claimant in that case resisted disclosure on the grounds that the documents and reports sought were privileged. The claimant had grown exasperated by his expert’s delays and shortcomings and so turned to an alternative expert. At paragraph 32 of his judgment the judge set out the authorities and principles to be applied when considering whether to grant permission to a party to change expert:  (1) The court has a wide and general power to exercise its discretion whether to impose terms when granting permission to a party to adduce expert opinion evidence (2) In exercising that power or discretion, the court may give permission for a party to rely on a second replacement expert, but such power or discretion is usually exercised on condition that the report of the first expert is disclosed (and privilege waived - see Vasiliou v Hajigeorgiou [2005] 1 WLR 2195) (3)  Once the parties have engaged in a relevant pre-action protocol process, and an expert has prepared a report in the context of such process, that expert then owes a duty to the Court irrespective of his instruction by one of the parties, and accordingly there was no justification for not disclosing that report as a condition for changing expert (see  Edwards-Tubb v JD Wetherspoon plc [2011] 1 W.L.R. 1373 – a PI case)  (4) The court's power to exercise its discretion whether to impose terms when giving permission to a party to adduce expert opinion evidence arises irrespective of the occurrence of any ‘expert shopping’. It is a power to be exercised reasonably on a case-by-case basis, in each case having regard to all the circumstances of that particular case.   (5) The court will require strong evidence of ‘expert shopping’ before imposing a term that a party discloses other forms of document than the report of expert A (such as attendance notes and memoranda made by a party's solicitor of his or her discussions with expert A) as a condition of giving permission to rely on expert B (see (BMG (Mansfield) Ltd v Galliford Try Construction Ltd  [2013] EWHC 3183)  In the case of Allen Tod itself the judge found that there was no real reason for making a distinction between the expert’s final report, draft or provisional reports or other documents setting out his opinion: neither would have been discloseable if the expert had remained the claimant’s expert. He ordered disclosure of the original expert’s notes and preliminary report as a condition of permitting the claimant to rely on the new expert and he also ordered disclosure of any document in which the original expert had provided his opinion. To the extent any other material was contained in any such document, it was to be redacted before disclosure.

Inadequate bundles: a costly mistake...

15 August 2016 Ian-Miller case report, costs, cpr (0)
The July edition of Civil Procedure News reports a case in which a claimant's bundles were inadequate, two applications were adjourned and the claimant was ordered to pay the costs of producing properly prepared bundles and the costs thrown away as a result of the adjournment. The claimant had brought three applications for summary judgment on three separate claims. Two of the applications were supported by a witness statement which had 750 pages of exhibits. The judge criticised the lack of pagination and the fact that many of the exhibits were not placed in the bundle where they were stated to be in the witness statements. The inadequate pagination meant that the time-estimate for pre-reading and the hearing was inadequate. The judge found there had been a breach of the Overriding Objective (managing the courts resources proportionately). PM Project Services Limited v Dairy Crest Ltd [2016] EWHC 1235 is a sobering reminder of the potential consequences of poorly-prepared bundles. This decision comes hot on the heals of a decision earlier this year by the Court of Appeal. The editor of the Civil Procedure News draws attention to the decision in Pawar v JSD Haulage Ltd [2016] EWCA Civ 551 in which the Court of Appeal granted the respondent its costs of having to prepare appeal bundles as those submitted by the appellant were described as "chaotic".

Trial by ambush?

31 May 2016 Ella-Davis case report, cpr, evidence, procedure (0)
In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) Foskett J, albeit with “considerable misgiving”, allowed a Defendant to rely on surveillance footage that had been disclosed so late that it caused the trial date to be vacated. The decision is not so much of interest because of its outcome but for the judge’s more general comments on the issue of when surveillance evidence might properly be served. Facts It was held that from May 2015, when their pain management expert expressed the view that it was possible the Claimant was “grossly exaggerating for the purposes of financial gain”, the Defendant had every reason to commission surveillance evidence. Its failure to do so until January 2016 was unexplained and unreasonable. A series of lengthy but less culpable delays thereafter meant that the edited surveillance was finally served by post on 24 March, Maundy Thursday and received on Tuesday 30 March. The Defendant’s application to rely on it came before Foskett J on 8 April who decided that the Claimant should have time to consider her position and that therefore the trial due to commence in the week beginning 11 April had to be vacated. When it came back before him later that month he considered the events leading to that outcome and decided that the interests of justice required the evidence to be admitted. However, he declined to reserve costs to the trial judge holding that this was the “clearest possible case in which the order should be that the Defendant should bear the costs thrown away by the vacation of the trial date on the indemnity basis”. The Defendant was also ordered to pay the costs of the Claimant’s experts considering the surveillance, again on the indemnity basis Points of General Application  In reaching this decision Foskett J made a number of useful observations on the approach that parties and the court should take to surveillance evidence. Lawyers on both sides would be well advised to take those points on board, particularly Defendant representatives considering when to disclose footage. At paragraph 1 the judge explained that he was giving the Claimant time to consider whether she in fact wanted to oppose the application on the basis that this type of application can backfire on Defendants and represent a bonus to Claimants. It’s easy to see how unconvincing footage, presumably the high water mark of a Defendant’s case, might lend weight to a Claimant’s case. At paragraph 31, in the course of reviewing the authorities, he reiterated that the question of whether or not there is an ambush does not require a sinister motive to be shown but asks only whether the behaviour is otherwise culpable. Thus a Defendant does not have to be shown to be acting in bad faith or sharply – what matters is the effect of the conduct on the Claimant’s ability to deal with the evidence fairly. The judge observed at paragraph 34 that were it necessary to find a deliberate attempt to wrong foot the Claimant then this could only be done fairly in a mini-trial of the solicitor’s conduct. This is the sort of satellite litigation which is to be avoided. Reassuringly for those advising Defendants it is clear from paragraph 36 that his decision is not to be taken as altering the well-recognised position that a Defendant is entitled to wait until a Claimant has nailed his colours to the mast in a witness statement and/or schedule of loss before serving surveillance evidence. Having considered paragraphs 71 and 71 of Judge Collender QC’s decision in Douglas v O’Neill [2011] EWHC 601 (QB) he held that the fact that footage existed and more significantly had been seen by experts was not determinative of the question of whether permission to rely on it should be given. Experts are capable of putting such material out of their minds when giving evidence, just as they know not to reveal matters discussed without prejudice. In this case the judge notes that the Claimant’s solicitors perceived it was inappropriate for the experts to be shown the surveillance footage before permission to rely on it was given but does not really deal with whether they were correct. One can see that if the experts’ knowledge of the footage is, while not determinative, a relevant factor it might be improper to share it with experts and then make the application. Conversely the experts’ opinion might be required to decide whether to make the application. He observed that any inadequacy in the rules dealing with surveillance was a matter for the Civil Procedure Committee but noted that two cases on that issue were heard in the Royal Courts of Justice on the same day. At paragraphs 44 to 46 he questioned whether case management might resolve many such issues. It is the experience of the Senior Master that Claimants often seek an order specifying a date by which surveillance evidence must be served and this is frequently resisted by Defendants. It was suggested that it would be prudent for Claimants to raise the matter with the court as soon as they are in receipt of expert reports which suggest there might be an issue and indeed for the court to raise it of its own motion at the case management stage. Finally, at Paragraph 47, once a Claimant’s case as to the level of disability is clearly articulated and the Defendant has an expert opinion suggesting the claim is “suspect”, an obligation arises actively to obtain surveillance evidence if proportionate. This is not therefore a decision which particularly advances the law but it is a useful insight into how courts will approach applications of this nature.