Guntrip v Cheney Coaches Ltd

Mr Guntrip was employed as a coach driver by Cheney Coaches. In 2005, when he was in his early 60s, he began to suffer with knee pain. After being assessed by his GP, he underwent a left knee replacement. He was off work from December 2005 and went back to work in June 2006.

On his return to work, he was allocated a coach to drive for morning and evening school runs. It was a coach with a manual gear transmission, so Mr Guntrip had to use the clutch in order to change gear. He said that operating the clutch caused him to suffer significant pain, swelling and discomfort in his left knee, as a result of which he had to give up driving the coach. He says that Cheney Coaches were negligent and in breach of statutory duty in allocating him a coach with a manual rather than an automatic transmission; and in failing to carry out a proper risk assessment or take any other advice about whether Mr Guntrip should have been asked to drive a manually operated coach.

Mr Guntrip did not issue proceedings until 29 May 2009, a few days before the expiry of the limitation period. He attached to his Particulars of Claim a letter from Mr Shafighian, the surgeon who conducted the knee operation, but reserved the right to obtain a report from an orthopaedic surgeon. In November of that year, Mr Guntrip obtained an expert report from Mr William Jackson and by an order dated 26 January 2010 he was given permission to rely on it. Mr Jackson was specifically named in the order.

Cheney Coaches were given permission to obtain a similar report to be filed and served by 12 May. Their expert was Professor Briggs. The two experts were directed to prepare a statement of the issues on which they agreed and disagreed, to be filed by 24 June 2010. The trial window was fixed for a date between October 2010 and January 2011.

Unfortunately, there was some slippage in the timetable. Cheney Coaches were given an extension of time for filing of their expert report. It was now to be filed by 8 October 2010. This had knock-on effects on the rest of the timetable. The experts' joint statement was put back to 29 October 2010 and the trial date was re-set for March 2011.

In his report in November 2009, Mr Jackson noted that something had happened to cause Mr Guntrip's knee to deteriorate suddenly. He said that it raised the suspicion of possible loosening or another surgically treatable cause. He added, however:

It is fair to say that Mr Jackson's support for the case that Mr Guntrip's knee problems were caused by his return to work was at best lukewarm. He did say that the return to work might have accelerated the symptoms, but to say that the return to work might have accelerated the symptoms is not saying that it probably did. In any event, a claim of accelerated symptoms was not the pleaded case. On 1 March 2011, the trial window was refixed for between 1 June 2011 and 30 September 2011.

Professor Briggs reported on 20 May 2010. He said that he did not think that Mr Guntrip's symptoms could be attributed to his driving a coach with a manual clutch. He thought there was a problem with the prosthesis itself and did not think that his occupation or the fact that he was driving a coach could be held to blame.

The two experts met in November 2010 and produced a joint statement dated 9 November. They agreed that:

Mr Guntrip's legal team recognised that if this joint statement stood his claim could not succeed, so they instructed another expert orthopaedic surgeon, Mr Banks, who produced his first report dated 20 January 2011. He said:

Armed with that report, on 16 February 2011, Mr Guntrip applied for permission to rely on the expert evidence of Mr Banks in place of that of Mr Jackson. Because Mr Jackson had been specifically named in the order as Mr Guntrip's expert, there is no doubt that the permission of the court was needed for that change. Following Mr Banks' first report, Professor Murray did carry out an exploratory operation. No loosening was found. Instead, what he found was summarised by Mr Banks in his second report of 5 April. Mr Banks said in that report:

Thus the thesis which Mr Banks had advanced in his first report had been falsified by the subsequent exploratory operation carried out by Professor Murray. Mr Banks commented in his second report:

Mr Guntrip's application came before District Judge Payne on 18 May 2011. He refused it. The points he made were essentially as follows:

Judge Charles Harris QC granted permission to appeal. The appeal came before His Honour Judge Corrie who allowed the appeal. With the permission of Dame Janet Smith, Cheney's Coaches appeal again.

Whether to grant a party permission to adduce expert evidence, particularly where the application involves a change of expert, is a case management decision. It is a discretionary decision entrusted by the rules to the first instance judge. The discretion must, of course, be exercised judicially having regard to the overriding objective. But the fact that the discretion was a discretion entrusted to District Judge Payne means, in my judgment, that the issue on this appeal is not whether Judge Corrie exercised his discretion correctly, but whether he was entitled to interfere with District Judge Payne's exercise of his discretion.

CPR Part 35.4(1) makes it clear no party may call an expert or put in evidence an expert's report without the court's permission. An expert's overriding duty is to help the court on matters within his expertise. This duty overrides any obligation to the person who instructs or pays him: see CPR Part 35.5.

Under CPR Part 35.12, the court may and usually will direct a discussion between experts. The purpose of the discussion is to identify and discuss the expert issues and where possible reach agreed opinions on those issues. In Stallwood v David [2006] EWHC 2600 (QB); [2007] 1 All ER 206, Teare J correctly pointed out in paragraph 17 of his judgment:

What can be said, however, is that a judge hearing an application to change experts must exercise his discretion in accordance with the overriding objective. This means that a court must deal with cases justly. Justice involves justice to the defendant as well as justice to the claimant. It also involves saving expense, dealing with the case proportionately and ensuring that it is dealt with expeditiously. Necessarily, this means that decisions are fact sensitive and case specific.

District Judge Payne considered all these aspects of the overriding objective. Under the heading of “dealing with the case justly”, he considered the effect on both the claimant and the defendant. He noted that Mr Jackson had only ever expressed a tentative view and that Mr Banks' opinion differed more in its nuances rather than in substance. He took into account that Cheney's Coaches would have greater difficulty in dealing with the disputed issues of fact. Under the heading of “saving expense”, he took into account the probability that substantial extra costs would have to be incurred. He compared that with the amount in issue. In other words, he considered proportionality. He noted the delay that had already occurred and, most importantly, that the trial date could no longer be met. These considerations were highly relevant to dealing with the case expeditiously.

What flaw in the discretion in the exercise of District Judge Payne's discretion did Judge Corrie discern? It seems to me that he thought there were three:

So far as the first of these points is concerned, it is clear the District Judge was well aware of the consequences of his decision. In my judgment, in his anxiety to do justice to Mr Guntrip, Judge Corrie overlooked justice to Cheney's Coaches. It is part of justice that unfounded claims should fail just as much as that meritorious claims should succeed. He also overlooked the significance of the overriding duty of an expert. As I have said, if an expert changes his mind about the merits of a claim, the sooner he says so the better. It is clear that, since District Judge Payne took into account the effect of the refusal of permission on Mr Guntrip, he did not ignore this material consideration. The weight to be given to a material consideration is essentially a matter for the first instance judge.

So far as the second point is concerned, this was a simple disagreement between an appellate court and a first instance court. District Judge Payne was entitled to reach the conclusion that he did and the fact that Judge Corrie disagreed was not a flaw in the exercise of District Judge Payne's discretion.

So far as the third point is concerned, Judge Corrie thought that District Judge Payne ought not even to have considered the cogency of the evidence. Mr Maitland-Jones supported that conclusion by submitting that the only two questions that the District Judge should have considered were, first, whether Mr Banks was appropriately qualified and, second, whether his conclusions went to something material in issue in the case. I cannot agree. Part of the evaluation of the effect on Mr Guntrip on a refusal of permission must involve the comparison of the difference between the old case and the new case that a party wishes to advance. It is true that a judge considering this kind of application should not conduct a mini-trial on the papers, still less where that mini-trial would turn on questions of expert evidence. But, in my judgment, the District Judge was entitled to take into account, as he did, the fact that Mr Banks' first report had been falsified by subsequent events and that the different cause of Mr Guntrip's problems (identified in the second report) was itself tentatively expressed and sparsely reasoned.

Mr Maitland-Jones said that further reasons might be explained in further evidence or answers to questions put to Mr Banks. But at a late stage in the proceedings, when this application was made, it seems to me that a party who wants to change an expert should put forward all the expert material on which he wishes to rely and not leave it to be elicited by further questioning.

In addition, the court is and should be less ready to allow a very late amendment than it used to be in former times; and a heavy onus lies on a party seeking to make a late amendment to justify it as regards his own position, that of the other party to the litigation and that of other litigants in other cases before the court. Although these principles have been applied to amendments to statements of case, they apply equally to a late change of expert.

In his report on civil litigation costs, Jackson LJ made two relevant and important points. First, he said that courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing, they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. Second, he said:

In my judgment, there was no flaw in District Judge Payne's exercise of his discretion sufficient to entitle Judge Corrie to interfere with it or to substitute his own decision. I, therefore, would allow the appeal.

I agree.

I also agree.