Beck v Ministry of Defence (Note)
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS, MR:,LORD JUSTICE WARD,LORD JUSTICE SIMON BROWN |
| Judgment Date | 11 June 2003 |
| Neutral Citation | [2003] EWCA Civ 1043 |
| Docket Number | A2/2003/0310 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2003 |
[2003] EWCA Civ 1043
The Master Of The Rolls (Lord Phillips)
Lord Justice Simon Brown (Vice President Of The Court Of Appeal, Civil Division)
Lord Justice Ward
A2/2003/0310
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(HIS HONOUR JUDGE LANGAN QC (SITTING AS A JUDGE OF THE HIGH COURT))
QUEEN'S BENCH DIVISION (LEEDS DISTRICT REGISTRY)
The Law Courts
Quayside
Newcastle upon Tyne NE1 3LA
MR HOWARD ELGOT AND MISS CATHERINE SOUTER (instructed by Messrs Stamp, Jackson & Procter, Hull, HU1 2AZ) appeared on behalf of the Appellant
MISS P WHIPPLE (instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
Lord Justice Simon Brown will give the first judgment.
: 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.
With that briefest of introductions, let me sketch in the factual background of the case to the limited extent necessary for present purposes.
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.
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.
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."
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."
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."
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.
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.
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.
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.
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."
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.
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."
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...
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