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Stallwood v David, High Court on Appeal from County Court, 25 October 2006

8 November 2006
The issues

Expert evidence – whether party should have leave to instruct second expert following statement of agreement between existing experts instructed by the parties – expert evidence.

The facts

The Claimant suffered two road traffic accidents in March and July 2001 and as a result suffered pain in her neck and lower back. Her claim, taking into account general and special damages was thought to be of the order of £200,000.00. The Claimant instructed an orthopaedic surgeon, Mr Harris-Jones. The Defendant instructed an orthopaedic surgeon as well, Mr Boston. The experts reported. Their reports were disclosed. The experts discussed their opinions with a view to identifying areas of agreement and disagreement. When the note was produced it was evident that Mr Harris-Jones had changed his opinion. As a result of Mr Harris-Jones’ change of opinion the Claimant’s prospects of establishing a claim to damages in the sum of £200,000.00 was significantly reduced. The Claimant lost confidence in Mr Harris-Jones and sought to instruct another orthopaedic surgeon, Mr Horan. At a CMC in March 2006 the Judge refused leave to adduce expert evidence from Mr Horan.

The Claimant appealed.

The decision

Where a Court is asked for permission to adduce expert evidence from a third expert in circumstances where the Applicant is dissatisfied with the opinion of his own expert following an expert’s discussion it should only grant permission where there is good reason to suppose that the Applicant’s first expert has agreed with the expert instructed by the other side or has modified his opinion for reasons which cannot properly of fairly support his revised opinion. It will be a rare case in which such good reason can be shown.

The good reasons are likely to be those mentioned in the note to the white book at 35.12.1, namely, that the party’s expert had clearly stepped outside his expertise or brief or otherwise shown himself to be incompetent.

Where good reason is shown the Court will have to consider whether, having regard to all the circumstances of the case and the overriding objective to deal with cases justly, it can properly be said that further expert evidence is “reasonably required to resolve the proceedings”.

In this case the Judge did not appear to have considered whether, notwithstanding that the need for the Application had come about because of a change of mind on the part of the expert initially instructed, there were or might be good reasons why the Claimant should be permitted to adduce evidence from another expert. The Judge had had in mind delay but did not appear to have tried to assess in his judgment when a Trial was likely to take place if the Application was successful and whether the resulting delay would be sufficient to justify denial of the Claimant’s Application. The Judge therefore had not had regard to all relevant matters when he considered the Claimant’s Application and the Court would consider the Claimant’s Application afresh, notwithstanding that it was one concerning case management.

There was another reason as to why it was appropriate for the Court to consider the decision afresh and that was the manner in which the Judge had dealt with the Application. The Judge appeared to have interrupted Counsel frequently making it difficult for Counsel to put forward his argument and had expressed a view of the lack of merit of the claim for earnings based on his own experience and his own back condition.

It was not unusual for opinions to alter after discussions between experts and the fact that an expert changed his opinion was not a ground for suggesting that his revised opinion was unfounded or not based upon sound reasoning. The Claimant had not sought to question Mr Harris-Jones about his opinion and make enquiries with him as to his change of mind. The Claimant and the Court was therefore left with the bare fact that he had modified his opinion after discussing his opinion with Mr Boston and that could not be enough to show good reason for needing an additional expert. It was put forward as a reason for no enquiries having been made that the Claimant had lost trust in Mr Harris-Jones. That was not a good reason for not making further enquiries.

The mere fact that the Claimant’s claim was substantial could not amount to a good reason for granting permission for additional expert evidence.

It could not be said that additional expert evidence was reasonably required to resolve the proceedings. There was however a particular and special reason for granting the Claimant’s appeal and that related to the conduct of the Application before the Judge. The Claimant would be left with an understandable sense of grievance which would not be dispelled even by the fact that her appeal had been considered by three Judges of the High Court, the first considering a paper Application to appeal, the second considering the Application for permission to appeal at an oral hearing, and the hearing in question before the Judge. Having regard to the very special circumstances of this case, dealing with it justly required permission to be granted to the Claimant to rely upon the expert evidence of Mr Horan.

Appeal granted.
Where a Court is asked for permission to adduce expert evidence from a third expert in circumstances where the Applicant is dissatisfied with the opinion of his own expert following an expert’s discussion it should only grant permission where there is good reason to suppose that the Applicant’s first expert has agreed with the expert instructed by the other side or has modified his opinion for reasons which cannot properly of fairly support his revised opinion. It will be a rare case in which such good reason can be shown.

The good reasons are likely to be those mentioned in the note to the white book at 35.12.1, namely, that the party’s expert had clearly stepped outside his expertise or brief or otherwise shown himself to be incompetent.

Where good reason is shown the Court will have to consider whether, having regard to all the circumstances of the case and the overriding objective to deal with cases justly, it can properly be said that further expert evidence is “reasonably required to resolve the proceedings”.

In this case the Judge did not appear to have considered whether, notwithstanding that the need for the Application had come about because of a change of mind on the part of the expert initially instructed, there were or might be good reasons why the Claimant should be permitted to adduce evidence from another expert. The Judge had had in mind delay but did not appear to have tried to assess in his judgment when a Trial was likely to take place if the Application was successful and whether the resulting delay would be sufficient to justify denial of the Claimant’s Application. The Judge therefore had not had regard to all relevant matters when he considered the Claimant’s Application and the Court would consider the Claimant’s Application afresh, notwithstanding that it was one concerning case management.

There was another reason as to why it was appropriate for the Court to consider the decision afresh and that was the manner in which the Judge had dealt with the Application. The Judge appeared to have interrupted Counsel frequently making it difficult for Counsel to put forward his argument and had expressed a view of the lack of merit of the claim for earnings based on his own experience and his own back condition.

It was not unusual for opinions to alter after discussions between experts and the fact that an expert changed his opinion was not a ground for suggesting that his revised opinion was unfounded or not based upon sound reasoning. The Claimant had not sought to question Mr Harris-Jones about his opinion and make enquiries with him as to his change of mind. The Claimant and the Court was therefore left with the bare fact that he had modified his opinion after discussing his opinion with Mr Boston and that could not be enough to show good reason for needing an additional expert. It was put forward as a reason for no enquiries having been made that the Claimant had lost trust in Mr Harris-Jones. That was not a good reason for not making further enquiries.

The mere fact that the Claimant’s claim was substantial could not amount to a good reason for granting permission for additional expert evidence.

It could not be said that additional expert evidence was reasonably required to resolve the proceedings. There was however a particular and special reason for granting the Claimant’s appeal and that related to the conduct of the Application before the Judge. The Claimant would be left with an understandable sense of grievance which would not be dispelled even by the fact that her appeal had been considered by three Judges of the High Court, the first considering a paper Application to appeal, the second considering the Application for permission to appeal at an oral hearing, and the hearing in question before the Judge. Having regard to the very special circumstances of this case, dealing with it justly required permission to be granted to the Claimant to rely upon the expert evidence of Mr Horan.

Appeal granted.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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