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Daniels v Walker, Court of Appeal, 3 May 2000

26 May 2000
The issues

Own care expert evidence

The facts

The Defendant appealed against the decision of the High Court Judge refusing the Defendant permission to obtain and rely upon the evidence of his own care expert in response to a care report jointly obtained in a Personal Injury action brought by the Claimant.

The Claimant was 7 and was struck by a car driven by the Defendants. Severe injuries. The Claimant needed care for the rest of his life. The issue was the nature of the care. An Occupational Therapist prepared a report jointly on joint instructions. A letter was written by the Claimant’s Solicitors with which the Defendant’s Solicitors were unhappy. When the report was received by the Defendant’s Solicitors they were concerned about the extent of the care regime recommended. When the matter came before the Judge the Judge decided that the appropriate course was to invite the Defendant to put written questions to the joint expert. The Defendant argued:-

(i) That the Judge’s Order conflicted with article 6 of The European Convention on Human Right because it amounted to barring the whole or an essential fundamental part of the Defendant’s claim.

(ii) That the decision was wrong within the scope of CPR.

The decision

(i) It had been inappropriate to raise article 6. The Court was not going to be taken down blind allies and it was essential that the parties took a responsible attitude as to when it was right to raise a Human Rights point. Article 6 could not possibly have any application to the issues on the present Appeal. The CPR made it clear that the obligation on the Court was to deal with cases justly. If it would be unjust not allow a party to call evidence, he must be allowed to call it. It would not assist to make the issues more complex by the injection of article 6 style arguments. The Court hoped that Judges would be robust in resisting attempts to introduce such arguments.

(ii) Merely agreeing to joint instructions did not prevent the parties from being allowed facilities to obtain a report from another expert or rely on the evidence on another expert. The correct approach was to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It was to be hoped it would also be the last step.

Generalisations could not be made. In cases where there was a modest sum involved, the Court might take a rigorous approach, taking the view that it would be disproportionate to obtain a second report in any circumstances and that at most what should be allowed was to put questions to the expert.

In cases were a substantial sum was involved, if there was disagreement the issue was whether to ask questions or to allow a party to get its own expert report. If questions did no resolve the matter and a party or both parties obtained their own reports then a decision had to be reached as to what evidence should be called. That decision should not be taken until there had been a meeting involving the experts. Only then as a last resort should oral evidence be allowed by the experts before the Court. In this case, the Judge should have ordered that there should be an opportunity for the Claimant to be examined by another expert.

Comments

In memoriam CPR!

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