Beck v Ministry of Defence

LORD PHILLIPS, MR: Lord Justice Simon Brown will give the first judgment.

LORD JUSTICE SIMON BROWN: This is a second appeal against what can only be characterised as an interlocutory case management decision; not, therefore, everyday fare in this court. It nevertheless raises a question of some little importance, namely whether it can ever be appropriate to allow a party to substitute one expert for another without, at some stage at least, being required to disclose the first expert's report.

With that briefest of introductions, let me sketch in the factual background of the case to the limited extent necessary for present purposes.

Having joined the RAF in 1995, the appellant had been promoted to Flight Lieutenant when in 1998 he unfortunately developed psychiatric illness. Between April and September 1999 he was treated by an RAF General Practitioner at the Duchess of Kent Hospital, Catterick, where the consultant psychiatrist in charge of his case, at least for a time, was Dr Leigh-Howarth. It is the appellant's central contention in the action that the treatment he received over that period was negligent, and that not only did it fail to cure him, but it actually exacerbated his condition, turning it into a major depressive illness such as to cause his medical discharge from the RAF in April 2000, and the long term destruction of his employment prospects for the rest of his life. This clearly is a high value claim.

Proceedings were issued in September 2001. The particulars of claim were served in January 2002. By their defence served in April 2002 the respondents deny negligence, causation and damage. On 28 June 2002 the case came for a directions hearing before a district judge at Hull. A split trial was ordered. The issues of breach of duty, causation and the effect of any breach of duty on the claimant's employment and earning capacity were ordered to be determined at the preliminary hearing.

In addition to common form directions for the exchange of witness statements and the like, an order was made that:

The respondent Ministry had, by the date of that order, selected as its expert psychiatrist a Dr Goodhead. He had, indeed, examined the claimant in April 2002. As was later made clear, however, over the following months the respondents came to lose all confidence in Dr Goodhead. On 10 October 2002 they asked the claimant's solicitors for facilities for the further psychiatric examination of the claimant by another expert. At that stage the proposed further expert was Dr Baggaley. A month or so later that request was refused, whereupon, on 11 October 2002, the defendants applied to the court for permission to change experts. Their solicitor said in the notice of application:

That application came before District Judge Fairwood on 17 January 2003 and was granted. The district judge, having rightly directed himself that the onus was on the defendants to show that it was reasonable to make the order for substitution, concluded that it was in the interests of justice that the application should succeed:

The claimant applied for permission to appeal against that order to a circuit judge, Judge Langan QC. The application was expedited and granted and the appeal immediately followed.

Two central criticisms were made of the district judge's judgment. First it was said to be contrary to the principles established by this court in Lane v Willis [1972] 1 WLR 326, in that the defendants here could not establish that they were unable properly to prepare their defence without instructing a further psychiatric witness, in particular without first disclosing to the court their existing medical evidence. Secondly, it was contended that the district judge had exercised his discretion in a wholly erroneous manner with regard to a number of considerations.

Judge Langan found neither basis of challenge to be made out. I shall have to return later to his judgment, but first let me complete the history. The effect of dismissing the claimant's appeal was to leave the action stayed pending the claimant submitting himself to examination by the defendants' fresh expert. As stated, that expert was at the time intended to be Dr Baggaley. Shortly after Judge Langan's order was perfected, however, it became apparent that during the mid-1990s Dr Baggaley had been a close associate of Dr Leigh-Howarth at the Duchess of Kent Hospital and, indeed, that the two of them had, in 1996, co-authored a paper.

In those circumstances, the defendants, whilst contesting not merely that they had been guilty of material non-disclosure in their conduct of the appeal before Judge Langan but in addition that the link between the two doctors would in any event have debarred Dr Baggaley from giving acceptable expert evidence at trial, have sensibly agreed that, assuming they can otherwise hold Judge Langan's order, they will instruct as their fresh psychiatric expert not Dr Baggaley, but a Dr Adrienne Reveley who knows none of the defendants' witnesses and has never worked at the Duchess of Kent Hospital, Catterick.

Permission to bring this second appeal was granted by Mance LJ on 31 March 2003. Although not restricting its scope, he appears to have been influenced principally by the Lane v Willis argument:

Mance LJ also thought that there might be a difficulty resulting from Dr Baggaley's relationship with the defendants' witnesses but, as was made clear in the course of today's hearing, we are not impressed by that argument. The true issue is whether, and if so on what terms, the defendant should be allowed to instruct a new psychiatric expert, not who that expert should be.

I turn now to the judgment under appeal to see how Judge Langan dealt with the ruling authority, Lane v Willis. At paragraph 14 of his judgment, he said:

Before turning to the next paragraph of Judge Langan's judgment, it is convenient to cite the most directly relevant passages from Sachs LJ's leading judgment in Lane v Willis. There are three. At page 333A-C:

Although there were other factors in the case generally relevant to the exercise of the court's discretion in a case of this nature, I need not deal with them in any detail. In my judgment, on the determination of a second appeal, it is plainly not for this court to re-exercise a broad discretion. True it is, for example, that the defendants applied very late for permission to change their psychiatrist. In the event, however that delay caused no prejudice: as the district judge below found, it had no impact on the timing of the trial. True, too, the proposed further examination of the claimant by a fresh psychiatrist would involve some further invasion of his personal liberty and he is, of course, in an already fragile mental state having twice during his illness tried to take his own life. As Judge Langan pointed out, however, there are two features of the case operating to diminish the impact of this factor upon him:

I turn therefore to the appellant's main argument, his contention that, in the light of the principles established in Lane v Willis, there is no proper basis for the order made here, in particular because of the defendants' refusal to disclose Dr Goodhead's existing report. In this connection I cite one further brief passage from the judgment below:

It is not enough, submits Mr Elgot for the appellant, that Dr Goodhead's report is said to be "rambling, long and unfocused" and that the defendants' solicitors have been unable to persuade him to put it into satisfactory form. That, runs the argument, was an insufficient basis upon which to make an order for a fresh expert. That submission, I have to say, seems to me to do less than justice to the defendants' real case here, which is essentially to the effect that they have lost all confidence in Dr Goodhead and that this is a case, par excellence, in which it is important that they should have confidence in their expert. It is, after all, not merely a very high value case, but one which involves serious allegations of professional negligence against a number of the defendants' own doctors who continue to treat service personnel. As it is put in paragraph 10 of the respondents' notice:

All this I can readily understand. What I confess to having had some difficulty in understanding is why the defendants should not be required to disclose Dr Goodhead's report. There are two aspects of this. Different considerations arise depending on whether disclosure is said to be required (a) before the decision is taken either to allow or to refuse the application to change experts; or (b) as a condition of granting such an application. It appears that the argument in this case has hitherto focused exclusively on the first stage. That is something that the district judge dealt with and which, in turn, Judge Langan dealt with in the passage in his judgment cited in paragraph 18 above.

The point is now reiterated in the respondents' skeleton argument in these terms:

This argument, and certainly the passage cited from the judgment below, might be thought to have overlooked the point that, if indeed the defendants were to be refused permission to change experts, they would be bound to rely on Dr Goodhead and would be bound therefore to disclose his report. The real question, however, is whether they should be required to disclose it at the initial stage of arguing whether they should be forced to continue using him as their expert.

The burden of the defendants' argument in this regard is that, whilst it is one thing to assert, as clearly in general terms they were asserting, that their expert's report, essentially supportive of their case though it was was in many respects unsatisfactorily set out and reasoned; it is quite another to be forced to make that argument by specific reference to the details of the report, every point thereafter becoming directly available against them if ultimately they are forced to rely upon his evidence. Put on that basis, and that must necessarily have been the basis upon which the point was understood by both judges below, I, for my part, am likewise disposed to accept it.

Very different considerations, however, seem to me to arise once in principle it has been decided to make the order allowing a new expert to be instructed. At this point I can see no reason for continuing to withhold disclosure of the original report which is now to be discarded, and every possible reason why such disclosure should be made. In Lane v Willis, one notes, the Court of Appeal was told, on indicating that they proposed to allow the defendants to instruct a further expert, that the defendants would thereupon disclose their existing evidence. Roskill LJ, at page 335F, described that as a very proper undertaking by counsel for the defendants:

The disclosure of the original report, as a condition of being allowed to instruct a fresh expert, would also meet the concern expressed by Sachs LJ in the third passage of his judgment cited above:

I do not say that there could never be a case 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. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible and certainly, to my mind, no such circumstances exist here.

It seems to me that there clearly ought to be a condition attached to the order here permitting the defendants to instruct a fresh psychiatrist; namely that they should, on taking up such permission, forthwith disclose Dr Goodhead's report upon which they no longer seek to rely.

Subject to varying the order below in that way, I would, however, uphold it. I would therefore allow the appeal but only to that most limited extent.

LORD JUSTICE WARD: I can see that it would be acutely embarrassing to have to denigrate one's expert's report in order to explain why confidence in him has been lost, only then to find that the application to replace him fails, so forcing the dissatisfied party either to call him when all those criticisms are bound to be thrown back in his face or, if one cannot risk his being thus discredited, to go into battle fair without any expert opinion to assist the party's case.

Nevertheless, expert shopping is to be discouraged, and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again. I agree, for the reasons given by my Lord, that the appeal should be allowed to that limited extent.

LORD PHILLIPS, MR: A claimant who brings proceedings for personal injury, whether physical or psychiatric, must accept that he is likely to have to submit to a medical examination by an expert instructed by the defendant. A claimant can properly object, however, to being subjected to a second examination without good reason.

In this case the reason advanced for subjecting Mr Beck to a second examination is that the first expert instructed by the defendants has proved unsatisfactory. In my judgment a claimant can reasonably object to having to be examined again if this is, or may be, because the conclusions reached by the first expert have proved more favourable to him than the defendants had anticipated.

I do not consider that the court should order a second examination or stay proceedings pending a second examination by a new expert if this is a possibility. So to order would be to permit the possibility of expert shopping which is undesirable. In this case, on the evidence of the defendants' solicitor, it is not said that Mr Goodhead's conclusions are unfavourable to the defendants, but that the form or manner in which those conclusions have been expressed in the report that he has prepared are so unsatisfactory as to have resulted in a loss of confidence in him as an expert.

I do not consider that a claimant should be required to take such an assertion on trust. Equally, I can accept that it may not be reasonable, and has been found not to be reasonable in this case, to expect defendants to advance specific criticisms of an expert's report at the time when the possibility remains that the defendants will be driven to rely upon that expert because the application to replace him has been refused.

The answer in this case, and in any case where a situation similar arises, is that proposed by Lord Justice Simon Brown that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping, and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done.

For those reasons I concur in the solution to this appeal proposed by Lord Justice Simon Brown.