Peet v Mid Kent Health Authority, Court of Appeal (Lord Woolf)

Joint experts/conferences in the absence of a party.

The Claimant was one of twins born in 1996 and suffering for a four limb cerebral palsy. Liability had been agreed with the NHS Trust admitting 95%. Directions were given providing for simultaneous mutual exchange of medical evidence and the instruction of a single Joint Non-Medical Expert. The Claimant’s father wished to have a Conference with the single Joint Expert in the absence of the NHS Trust. The Master was asked to give a ruling and took the view that it was inappropriate for such a conference to occur and that without the consent of both parties no conference of a single Joint Expert could be held. The Claimant’s father appealed.

The Appeal would be dismissed.

1. It was inappropriate and contrary to the over-riding objective for the evidence of a Joint Expert to be tested in the course of discussion with only one side present.

2. In the great majority of cases where there was a need for non-medical expert evidence that evidence should be given by a single expert rather than adversarial expert evidence called on behalf of the parties. Civil Procedure Rules Rule 35.7 permitted the court to require expert evidence to be given by single joint expert to be required. This avoided stress and anxiety to the claimants – the obtaining of adversarial evidence caused delay and had adverse affect on resources of the National Health Service; both in terms of cost and manpower.

The consequences of this decision may be for far reaching, particularly given that it is a Judgment of Lord Woolf himself. It would appear to give little scope for adversarial expert evidence in the vast majority of personal injury actions, excluding (at the moment) medical evidence. The idea of joint care reports as a matter of course is alarming however!

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