Peet v Mid-Kent Healthcare Trust
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,THE LORD CHIEF JUSTICE |
| Judgment Date | 05 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1703 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2001/2178 |
| Date | 05 November 2001 |
[2001] EWCA Civ 1703
The Lord Chief Justice Of England And Wales
(The Lord Woolf Of Barnes)
Lord Justice Simon Brown and
Lord Justice Buxton
A2/2001/2178
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MASTER UNGLEY)
Royal Courts of Justice
The Strand
London
MR SIMON TAYLOR (instructed by Messrs Alexander Harris, London EC1N) appeared on behalf of THE APPELLANT
MISS JANE MISHCON (instructed by Messrs Bevan Ashford, London W2A 1LF) appeared on behalf of THE RESPONDENT
Monday 5 November 2001
This appeal comes before this court with the permission of Master Ungley from whose order dated 28 September 2001 it arises. It was correctly considered by him that the issue is one which requires the attention of this court.
The appeal raises a point of general significance in relation to expert evidence. It arises in the context of a claim for medical negligence following the birth of one of two twins to Major and Mrs P on 3 October 1996. Tragically that twin was born suffering from four limb cerebral palsy of a mixed type with hypertonia and writhing movements which meant that the child had limited mobility.
The history of the proceedings can be summarised shortly as follows. The letter before action was sent in October 1997. Proceedings were issued in March 1998. The trial of liability was fixed to start on 10 May 1999. Following the exchange of experts' reports, the claimant made an application for summary judgment. It was originally returnable on 5 March 1999, but on 25 March, after the matter had been adjourned, the defendant offered to pay 95% of the full liability quantum of damages which were to be assessed. That offer was accepted and the proposed settlement was approved by Turner J on 23 April 1999.
In due course, on 17 February 2000, an order was made by the Senior Master, Master Turner. He gave directions designed to ensure the proportionate disposal of the proceedings. He ordered simultaneous mutual exchange of medical expert evidence. He subsequently required the parties to serve a schedule of loss with supporting documentation, the first schedule to be served by the claimant by 30 November 2001, and that to be followed by a counter-schedule not later than 28 February 2002. The object of the exercise was that a trial should take place in approximately March 2002. In addition, the Master ordered that there should be jointly instructed non-medical expert evidence dealing with quantum limited to seven such witnesses who were identified as follows: an educational psychologist, an employment consultant, a nursing specialist, an occupational therapist, a physiotherapist, an architect and a speech therapist. In addition, a video of the claimant was to be seen by the trial judge.
The parties were in agreement that there should be non—medical evidence from experts in their respective fields. That part of the order was therefore made by consent. I will return to that aspect of the order later in this judgment. In the absence of special circumstances, evidence by a single expert witness is the appropriate course to be adopted when giving directions in a case of this nature as to non-medical experts.
The scale of litigation over medical mishaps of the sort that occurred to the claimant in this case is a matter of considerable concern. In addition, this area of litigation tends to be peculiarly adversarial: both sides, unless they are careful, can allow the litigation to become disproportionate. The issues may be made more difficult to resolve. The costs of litigation may be extremely high. Claims can be very large indeed. The amount of costs incurred, when the size of the claim is considered, may be a relatively small percentage of the amount in issue. However, it has to be realised by those who are involved in litigation in this area that almost invariably the costs fall upon those who are responsible for providing for the health of the nation through the National Health Service. In these circumstances it is the duty of the lawyers on both sides to use their best endeavour to keep those costs under control. It is not only the lawyers who are under a duty, the courts too are under a duty to restrain those costs. A way of doing so is by ensuring that the medical and non-medical expert evidence is restricted so far as possible. In some cases it is difficult to restrict the medical evidence because there can be difficult issues as to the appropriate form of treatment in the particular case and also problems as to the standard of treatment which is required.
However, this appeal arises in relation to the non-medical evidence. Although the amount of the claim can be significantly influenced by non-medical evidence, in my view in the great majority of cases where there is the need for such non-medical evidence, that evidence should be given by a single expert rather than by experts called on behalf of the respective parties. As we will see when we come to the framework which is provided by the Civil Procedure Rules, the Rules permit the court to require the parties to use a single expert. This is not a matter of choice for the parties. In the absence of special circumstances I consider that the appropriate way that the power should be exercised is to require a single expert rather than an expert from each party. It is only by so doing that control can be exercised over the costs involved. I have already referred to the number of non-medical experts that were required in this particular case. To have contested issues over the evidence given by those non-medical experts would make the litigation disproportionate.
It does not help the parties to a dispute to have contests over such an issue. Quite apart from the additional costs which are incurred, the stress and anxiety which is caused to the claimant or the claimant's parents has to be borne in mind. Also to be borne in mind is the delay which arises. Finally, it has to be recognised that litigation of this sort has an adverse effect upon the resources of the health service, not only in costs but also in the manpower which has to be deployed in providing the information to those who are responsible for conducting this class of litigation on behalf of hospitals and other parts of the health service. It is therefore to be hoped that parties will exercise the degree of responsibility required to control those costs, and it is also to be hoped that the courts will use their powers as far as they can to restrict those costs.
The framework provided by the Rules with regard to expert evidence and the Practice Direction in support of the Rules is designed to provide a flexible framework. There will always be cases which require special treatment because of particular issues which arise thereunder. But in general the Rules should cater satisfactorily for the great majority of situations where expert evidence, particularly in a medical context, is required.
Part 35.3 of the Civil Procedure Rules makes clear that experts in general owe an overriding duty to the courts. It provides:
"(1) It is the duty of an expert to help the court on the matters within his expertise.
(2) This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid."
The power of the court to restrict expert evidence is contained in Part 35.4 which provides:
"(1) No party may call an expert or put in evidence an expert's report without the court's permission."
The court therefore is in a position to control the way that expert evidence is provided.
Part 35.5 contains general requirements:
"(1) Expert evidence is to be given in a written report unless the court directs otherwise."
Part 35.6 enables written questions to be addressed to experts. It provides:
"(1) A party may put to —
(a) an expert instructed by another party; or
(b) a single joint expert appointed under rule 35.7 written questions about his report.
(2) Written questions under paragraph (1) —
(a) may be put once only;
(b) must be put within 28 days of service of the expert's report; and
(c) must be for the purpose only of clarification of the report; unless in any case —
(i) the court gives permission; or
(ii) the other party agrees."
The requirement that questions may only be put once is a general requirement. If the circumstances require the questions to be put more than once, then the court may permit that to happen. If the parties accept that questions should be put on an additional occasion, normally the court will be content to allow them to do so. There is no need for applications to be made to the court in the absence of disagreement.
It is apparent from Part 35.5 and Part 35.6 that the process with regard to the obtaining of expert evidence depends upon the use of written instructions, followed by a written report.
Part 35.7 is particularly relevant to the issue which is before the court on this appeal. It provides:
"(1) Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by one expert only.
(2) The parties wishing to submit the expert evidence are called 'the instructing parties'.
(3) Where the instructing parties cannot agree who should be the expert, the court may —
(a) select the expert from a list prepared or identified by the instructing parties; or
(b) direct that the expert be selected in such other manner as the court may direct."
In relation to Part 35.7 I would...
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