Experts ....and how to get the best out of them

1. Experts ....and how to get the best out of them Presented by Mamta Gupta, Barrister practicing in Personal Injury and Clinical Negligence. mgu@no5.com 1

2. Instrumental - tool to get positive Judgment, whole case can turn on expert evidence Judge’s reliance on expert evidence [objective] Costly; Jackson - to limit costs and budget CPR 35.4 - new requirement to provide estimate Not easy to get further expert evidence - need permission Provide ammunition to opposing party; Approach by Courts to stamp on expert shopping; Can facilitate settlement Why important... 2

3. Selection – CPR 35.1 and 35.4 – Duty to and Power to Restrict Expert Evidence; CPR 35.1 – Duty to Restrict Expert Evidence - Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings CPR 35.4 – Power to Restrict Expert Evidence - No party may call an expert or put in evidence an expert’s report without the Court’s permission. 3

4. Consider nature of the case - what role will expert play in case? • - Each party to get own report, single joint expert, • Complex issues, - LVI, causation, multiple defendants; technical e.g. EL and CN cases - specific area of expertise required, • Meeting with lay client/Counsel • Multiple experts relied upon by one party - order of reports • Joint expert meeting or mediation • Expert to attend Court to give oral evidence 4

5. Choosing the Right Expert 5

6. Choosing the Right Expert • Stage 1 • Databases - e.g. APIL, Firm • Counsel/Colleagues • Internet • Experts used in previous cases, reported cases, • Leader in the field • Examples of work - previous cases, other party’s experts 6

7. Stage 2 Peruse C.V. Give Expert a call - discuss the case; Importance of independence Assess knowledge of specific subject area Assess potential performance at Court, in conference with lay client, Still in practice? Location - proximity Availability - holidays Choosing the Right Expert 8

8. Furnish with all the relevant documents - including other party’s evidence including defence, letter of response, medical records; Highlight issues in the case [draft specific questions if necessary] Allow enough time, provide expert with deadline [case plan] Clear Instructions 9

9. Privilege 35.10.4 – The instructions referred to in paragraph 3 shall not be privileged against disclosure but the Court will not, in relation to those instructions (a) order disclosure of any specific document or (b) permit any questioning in Court other than by the party who instructed the expert, unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph 3 to be inaccurate or incomplete. 10

10. Privilege is only withdrawn under Rule 35 in respect of the instructions received by the expert to prepare their report. If the Court is satisfied that the expert’s report does not state the substance of all the material instructions, then the Court may order disclosure of those instructions and related documents. This was confirmed in the case of Lucas –v- Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102. This case also confirmed that the mere mention of privileged documents in an expert report does not necessarily waive privilege in the document. 11

11. Any concerns, discuss with expert, organise conference with Counsel; Draft Part 35 questions; addendum report? Send opposing party’s expert evidence or response and get expert’s comments Possibly get further comments consolidated into initial report Follow up upon receipt of report.. 12

12. 35.6 – Written Questions to Experts CPR 35.6 – A party may put to an expert instructed by another party or a single joint expert ….written questions about his report once only must be put within 28 days of service of the report unless the Court gives permission or the other party agrees. This provision is most useful in fast track cases where it is intended that the maker of the report will not be called to give evidence. This is also an important step in any application for a party to be able to have permission for its own expert, rather than a jointly instructed expert. 13

13. Careful consideration needs to be given as to whether the advantages of written questions to the expert (detailing their position and making it more difficult for them to change position at trial, together with potentially highlighting any areas of weakness in their evidence) outweigh the disadvantage (warning them and their team in respect of potential weaknesses and lines of cross-examination at trial). 14

14. 35.11 – Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial. It is not necessary for the Court to give permission - see Gurnei Consulting Engineers –v- Gleeds Health and Safety Ltd. [2006] EWHC 43 TCC. Cross-examination of experts on the contents of their \instructions will only be allowed if the Court permits it and the Court must be satisfied that there are reasonable grounds to consider that the statement in the report is inaccurate or incomplete. (Practice Direction paragraph 5). 15

15. The following cases are relevant to obtaining further expert • evidence: • Daniels –v- Walker [2001] WLR 1382 • Cosgrove –v- Pattison [2001] CP Rep 68 • Popek –v- National Westminster Bank Plc [2002] EWCA Civ 42 • Peet –v- Mid Cant Health Care Trust [2001] EWCA Civ 1703 16

16. Factors held relevant in the case of Cosgrove are: • - Nature of the issues • Number of issues • Reason for requiring a new expert • Amount at stake or the nature of the issues at stake and • their importance • Effect of permitting one party to call further expert evidence • on the conduct of the trial • Any delay caused in the proceedings • Any other special features • The overall justice to the parties in the context of the case 17

17. 35.13 – Consequences of Failure to Disclose a Report Baron –v- Lovell [1999] TLR September 15th 1999 Court of Appeal – emphasised that holding back expert evidence until close to trial at best will attract cost penalties and at worst will prompt the Court to make an Order that the party cannot rely upon the evidence. 18

18. CA said Courts would normally order party to disclose report obtained pre-issue as a condition of getting permission to rely on new expert; Reasoning - limit expert shopping; Consequences - in Defendant’s favour? Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136 19

19. Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136 The Claimant’s solicitors nominated three orthopaedic surgeons at the Personal Injury Pre-Action Protocol stage. One of those experts was selected by the Claimant but their report was never relied on or disclosed. Shortly before service of the proceedings the Claimant served a report from a different orthopaedic expert, not one of the originally nominated experts. The Defendant made an Application for disclosure of the earlier report as a condition for the Claimant being able to rely on the later disclosed report. The Court of Appeal stated that they could see no difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert instructed post-issue and held that, whilst it remained a matter of discretion, the making of a Conditional Order is a power which ordinarily be exercised where a change occurs after the parties have embarked on a claim under the Protocol. 20

20. Removal of expert immunity But expert still immune to claim from opposing party Experts can insure against risk of claims Full consequences? - yet to be seen Positive Judgment? similar position to advocates, lead to higher standards, compliance with the rules, Jones v Kaney [2011] UKSC 13 21

21. Experts misled Court as to value of prestige replacement hire cars in credit hire; Researcher given suspended prison sentence CEO of AeX asserts over 20,000 cases of dishonest expert evidence; AG to decide if further prosecution Example of impact of Jones v Kaney [2011]Possible prosecution of Expert witnesses 22

22. Hot Tubbing 23

23. Concurrent evidence Ongoing pilot in Manchester - ‘broadly positive’ Benefits....clearer evidence Disadvantages....less adversarial Hot Tubbing 24

24. Experts...and how to get the best out of them Presented by Mamta Gupta +44 (0) 845 210 5555 mgu@no5.com 25