UK: All for One or One for All?

Originally published in January 2002

In the recent case of MP¹ , the Court of Appeal was asked to consider whether a party could have sole access to a jointly instructed non-medical expert witness. Lord Woolf (Lord Chief Justice) took the opportunity to give detailed guidance of a more general nature concerning the use of non-medical experts in clinical negligence claims. Lord Woolf’s comments are likely to have significant repercussions.

In MP (a cerebral palsy claim brought on behalf of a five year old child), the parties had agreed to a court order appointing joint non-medical quantum experts in seven disciplines. The claimant’s parents subsequently decided that they wanted some of the experts to attend a conference with the claimant’s counsel, without there being any representative of the Trust present. Unsurprisingly, the Trust considered that proposal to be unacceptable, and the parents applied to Master Ungley to give a ruling.

The Master agreed with the Trust that it would not be appropriate for a conference of that nature to take place, and the application was refused. The matter came before the Court of Appeal on 5 November 2001.

The claimant’s appeal was unanimously rejected by the Court of Appeal. The court considered that it was entirely inappropriate for an expert who had 2 been jointly instructed by both parties to attend a conference with the lawyers for one side but not the other. The Court of Appeal endorsed the advice set out in the code of guidance for experts, published by the Academy of Experts on 1 June 2001. The code recommends that single joint experts should not attend any conference that is not a joint one, unless all the parties have first agreed in writing. As there was no such agreement from the Trust in this case, the parents’ application was refused.

The court’s ruling on the "sole access" point contained few surprises, but Lord Woolf’s comments concerning the use of jointly instructed non-medical experts in clinical negligence cases are of wider significance.

Lord Woolf made it clear that he remains vigorously committed to extending the courts’ control of the cost of clinical negligence litigation wherever possible. The investigation of quantum, which Lord Woolf described as "peculiarly adversarial", is the latest stage of thelitigation process to be subjected to his judicial microscope.

Lord Woolf highlighted a number of problems which he considered would be redressed by the introduction of single joint quantum experts in the vast majority of cases. These included:

• the need to make the cost of investigating quantum more proportionate.
• the need to make it easier rather than more difficult to resolve the issues.
• the need to avoid delay.
• the need to avoid the continuing drain on NHS resources, both in terms of costs and manpower.

The solution proposed by Lord Woolf was radical and simple: from now on, unless there are (as yet unspecified) "special circumstances" justifying the appointment of separate experts, the courts’ starting point will be that evidence by a single expert witness is the appropriate course for non-medical experts in all clinical negligence cases.

There can be no doubt that increased openness and co-operation is to be encouraged, and that all reasonable steps should be taken to reduce the cost to the Health Service of litigation. However, the Court of Appeal’s guidance may make it more difficult for Trusts and Health Authorities to test crucial evidence on traditionally controversial and expensive issues such as care, occupational therapy and accommodation. In higher value claims it may well be proportionate to allow each party to conduct its own investigations into such issues. Considerable savings are often achieved by challenging the claimant’s quantum evidence. In cases where the cost to the Health Service is measured in hundreds of thousands, if not millions, of pounds, the expense of instructing the expert can be repaid many times over by the damages saved as a result.

The court emphasised the need for a flexible approach, and specifically veered away from imposing joint experts in all cases. Nevertheless, it seems now that it will be much more difficult to persuade a court of the merits of separate quantum experts. The case of MP did, after all, involve a claim in the top damages bracket.

This would differ from our recent experience of the courts’ approach to such cases. Usually the parties have been allowed access to their own expert evidence in relation to the larger heads of damage claimed. The use of joint experts has been agreed to advise on the less expensive and controversial aspects of quantum.

In its desire to move away from a traditionally adversarial approach to quantum, the court might risk infringing the parties’ right to a fair trial under article 6 of the European Convention on Human Rights. The ECtHR case of Mantovanelli v France ² suggests that article 6 is a valid basis for instructing an independent expert. However, any article 6 challenge will be complicated by the emphasis in the judgement on the court’s discretion to allow separate experts in "special circumstances".

The extent to which the courts will apply the Court of Appeal’s guidance in deciding to allow separate experts remains to be seen. It seems unlikely that the courts will inevitably accept that, just because a particular head of damage is likely to be expensive, it will constitute a "special circumstance" justifying the appointment of separate experts. Lord Woolf’s comments make it clear that all courts will be expected to impose single joint experts toinvestigate quantum issues wherever possible. The judgment underlines the importance for Health Authorities, Trusts and their advisers of creating, maintaining and sharing reliable and up to date information about responsible, sensible experts, and the need for effective and prompt use of written questions to test and refine the evidence received.

2 [1997] 24 EHRR 370

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.