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Guntrip v Cheney Coaches Ltd, Court of Appeal, 14 March 2012

17 April 2012
The issues

Case management – evidence – medical report – substitution of report – unfavourable joint statement – whether further medical evidence could be obtained by claimant

The facts

The claimant was a coach driver employed by Cheney Coaches. In 2005 he began to suffer with knee pain. He was then in his early sixties. He had a left knee replacement and was off work from December 2005 to June 2006. When he went back to work he was given a coach with a manual gear transmission. He said that operating the coach caused him pain, swelling and discomfort in his left knee. As a result he gave up driving.

The claimant brought a claim against Cheney Coaches in negligence and for breach of statutory duty on the basis that Cheney Coaches should have given him a coach with an automatic transmission. He also claimed that they failed to carry out a proper risk assessment, or take advice on whether Mr Guntrip should have been asked to drive a manually operated coach. He began proceedings in May 2009 just before limitation. The claimant obtained an orthopaedic report from Mr Jackson who was named in the order permitting reliance upon it. The defendant’s obtained a report and the two experts prepared a joint statement of the issues. Initially, the time table provided for Cheney to file their report by the 12 May and for the joint statement to be filed by the 24 June 2010. The trial window was fixed between October 2010 and January 2011. The timetable slipped, the defendant’s were given an extension of time for filing their report to the 8 October 2010 and the rest of the timetable was put back with joint statements now due on 29 October 2010 and the trial re-set for March 2011.

A judge hearing an application to change experts had to exercise his discretion in accordance with the overriding objective

When it was finally produced, the joint statement noted agreement between both experts that the work which Mr Guntrip had been asked to do was work which somebody could be routinely expected to return to with a well functioning knee replacement. The experts both took the view that the stress involved with a stiff manual clutch should not of posed a problem and there was a temporary relationship between the start of his symptoms and his return to work. It was probable the joint statement said that the problems would have occurred anyway and were not caused by his return to work. The claimant solicitors instructed another orthopaedic expert who produced a report in January 2011. They sought to rely on the second expert in place of their first. They made an application before the District Judge in May 2011 – the trial window having being re-fixed for between June and September 2011. The District Judge refused the application on the ground that the claim was an old one and that there would be further delay if the claimant was allowed permission involving significant extra costs. He further found that the grant of the application would have a deleterious impact on the possibility of a fair trial since the defence turned in part on disputed questions of facts and memory would fade. The matter went to the judge on appeal who allowed the appeal. The defendant’s appealed further to the Court of Appeal.

The decision

CPR 35.4(1) says no party can call an expert or put an expert report in evidence without the courts permission. The experts overriding duty was to the court beyond any obligation to the party that instructed him (CPR 35.4). The overriding duty applied to the preparation and agreement of a joint statement that a court will usually direct under CPR 35.12. A judge hearing an application to change experts had to exercise his discretion in accordance with the overriding objective. This meant that a court must deal with cases justly. That involved justice to the defendant as well as justice to the claimant and also involved saving expense and dealing with the case proportionately and expeditiously. Such decisions were fact sensitive and case specific. On appeal the judge had discerned flaws in the District Judge’s discretion exercise. The judge had said that the District Judge did not take into account the fact that the claimant’s case would fail unless he was permitted to change his expert, that the District Judge was wrong to say that witnesses recollection would be less reliable after the lapse of time and that the District Judge overstepped his discretion by considering the value and content of the first experts evidence in weighing up his decision.

It was clear that the District Judge was well aware of the consequences of his decision. It was a material consideration and the weight to be given to it was essentially a matter for the first instance judge. It was part of justice that unfounded claims should fail just as much that meritorious claims should succeed.

As to the memory point, this was a disagreement between an appellant court and a first instance court. The District Judge was entitled to reach the conclusion he had done and the fact that the judge disagreed was not a flaw in the exercise of the District Judge’s discretion.

As far as the third point was concerned whilst it was true that a judge considering this kind of application should not conduct a mini trial on the papers still less where the mini trial would turn on questions of expert evidence. The District Judge was entitled to take into account the fact that the first experts first report had been falsified by subsequent events in that the different causes of Mr Guntrip’s problems identified in the second report was itself tentatively expressed and sparsely reasoned.

Generally, a party who wishes to change an expert should put forward all the expert material on which he wished to rely and not leave it to be elicited by further questioning. A court should be less ready to allow a very late amended that it used to be in former times and a heavy onerous lay on a party seeking to make a late amendment to justify it as regard to its own position that of the party to the litigation and that of other litigants in other cases before the court. These principles had been applied to amendment of statements case but applied equally to a late change of expert. The court agreed with the points made by Lord Justice Jackson in his report on Civil Litigation Costs when he said that courts at all levels had become too tolerant of delays and non compliance with orders and, in doing so, had lost sight of the damage which the culture of delay and non compliance inflicted on the Civil Justice system. Secondly, he had said that it was vital that the Court of Appeal supported first instances judges whom made a robust but fair case management decisions.

Appeal allowed.

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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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