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Beck v Ministry of Defence, Court of Appeal, 11 June 2003

28 August 2003
The issues

Case Management – expert evidence – instruct the substitution of one expert for another – disclosure first expert’s report.

The facts

The Claimant brought an action for personal injuries. He was in the RAF. He developed a psychiatric illness. He alleged that his treatment by the Consultant Psychiatrist at the Duchess of Kent Hospital Catterick was negligent and turned his condition into a major depressive illness requiring his discharge from the RAF. Proceedings were begun in September 2001. Liability was denied. In June 2002 an Order was made that the issue of liability be heard as a preliminary issue. An Order was also made limiting each party to one Psychiatrist, the report to deal with issues of liability, causation, condition and prognosis and the reports to be exchanged by 11th October 2002. The Defendant obtained a report from their nominated Psychiatrist, but did not wish to rely upon it and sought facilities from the Claimant for examination by another expert. The Claimant refused and the Defendants applied on the 11th October 2002 to the Court for permission to change experts. The basis of the Defendant’s Application was that their expert did not have sufficient knowledge of the Ministry of Defence Psychiatric Referral System, which was relevant to liability and that the presentation and flow of the report was poor. The matter came before the District Judge who granted the Application. The Claimant appealed to the Circuit Judge, who upheld the District Judge. The Claimant went to the Court of Appeal.

The decision

1. The Circuit Judge’s decision that the Defendant should be entitled to instruct another expert was understandable in the light of the facts that although the Defendants applied late for permission, the delay caused no prejudice or had any impact on the timing of the Trial, and that whilst any further examination is an invasion of the liberty of the Claimant, this was a psychiatric and not a physically intrusive examination and since the Claimant was an on-going psychiatric patient, he saw psychiatric Practitioner’s frequently in any event and finally, given that in what was a high value claim, it was an important factor that the Defendants had lost all confidence in their expert. Nonetheless, it was difficult to understand why the Defendants should not be required to disclose Dr Goodhead’s report.

2. There were two aspects to disclosure. Different considerations arose, depending on whether disclosure was required:-

(a) Before the decision to either allow or refuse the Application was made and;
(b) As a condition of granting such an Application.

The Defendants argued that if they were bound to disclose it prior to the Application, they would be put in an impossible situation if the Application was then not allowed. They would be in a situation whereby if they were subsequently obliged to rely upon the first expert’s evidence, the Claimant would have available at Trial every point that had been argued by the Defendants against that very evidence. This was a reasonable argument.

3. Different considerations arose however once it had been decided in principle to allow a new expert to be instructed. Whilst there might be cases where it would be appropriate to allow a Defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert’s report, it was difficult to imagine circumstances in which that would be properly permissible. No such circumstances existed in this case. Accordingly, the Appeal would be allowed only to the extent that the Defendants should forthwith disclose the first expert’s report.

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