Stallwood v David & Anor

This is an appeal against three decisions of HHJ Cotran sitting at the Shoreditch County Court on 7 March 2006. It is brought with the permission of the High Court granted on 15 June 2006. It raises the question whether there are any circumstances in which a party, dissatisfied with the opinion of his expert after the experts’ discussion, can obtain permission to rely upon additional expert evidence.

On 7 March 2006 a case management conference in an action for personal injuries took place at the Shoreditch County Court. The Claimant was refused permission to adduce evidence from an orthopaedic surgeon Mr. Horan, from a clinical psychiatrist Dr. Hoskins and from several witnesses of fact. The Defendant does not oppose the appeal in relation to the clinical psychiatrist or the witnesses of fact. Thus the only matter with which the Court must deal is the appeal against the Judge’s refusal to permit the Claimant to adduce evidence from Mr. Horan.

The Claimant suffered injury in two road traffic accidents in March and July 2001. As a result of the accidents she suffered pain in her neck and in her lower back. They have been referred to as whiplash injuries. At that time she was about 52 years of age and she worked as a self-employed accounting consultant, earning about £28,000 per annum. She claims that as a result of her injuries she has been unable to work more than 3 days each week and in consequence earns only about £14,000 per annum. Her case is that this will remain the position for the rest of working life. If her case is accepted at trial it is said that she will recover about £55,000 in respect of past loss of earnings and about £96,000 in respect of future loss of earnings. When account is taken of damages for pain and suffering and loss of amenities and interest it is thought by those advising her that her total claim will be of the order of £200,000.

The Claimant was examined by an orthopaedic surgeon Mr. Richard Harris-Jones on 6 March 2002, 6 September 2002, 3 September 2003 and on 22 June 2005. In his final report dated 15 August 2005 he expressed the following opinion:

The Defendants also instructed an orthopaedic surgeon, Mr.Boston, who examined the Claimant on 7 May 2005. In his report he expressed the following opinion:

In due course, with the consent of the parties and pursuant to an order of the Court, the two experts discussed their respective opinions with a view to identifying areas and agreement and disagreement. They did so on 29 November 2005 and produced an agreed note of their discussions dated 1 and 5 December 2005 which included the following:

It appears from that note that as a result of the discussion between the experts Mr. Harris-Jones has changed his opinion. Whereas in his report dated 15 August 2005 he was of the opinion that that a full recovery will not be achieved and that her symptoms will be on-going, in December 2005 he was of the opinion that recovery would have been complete 2 years after the second accident and that it is difficult to explain her ongoing symptoms beyond that period of time.

As a result of this change of opinion the Claimant’s prospects of establishing her claim to damages in a sum of about £200,000 have been very significantly reduced.

I was told by Counsel for the Claimant that as a result of the change in Mr. Harris-Jones’ opinion the Claimant lost confidence in him. That was because the change of opinion was so marked and had come about notwithstanding that Mr. Harris-Jones was very familiar with the Claimant’s injuries, had examined her on 4 separate occasions and had expressed himself in clear terms in his final report.

When the agreed note was produced in December 2005 a CMC had already been listed for 7 March 2005. The Claimant and those advising did not have any further consultation with Mr.Harris-Jones or ask him to explain why he had changed his opinion. Instead they decided that it was necessary to consult another orthopaedic surgeon, Mr. Horan, and to seek leave to expert evidence from him at the CMC.

The CMC took place on 7 March 2006 before HHJ Cotran. In his judgment the Judge set out the history of the experts’ reports. He rejected the application to adduce expert evidence from Mr.Horan for these reasons:

It would thus appear that the Judge rejected the application, firstly, because the accidents happened 5 years earlier and, secondly, because the trial was imminent. I think there was also a third reason, namely, that the Claimant had had an orthopaedic expert advising her and that the application was necessary only because he had changed his mind having considered the matter in the light of Mr.Boston’s opinion.

The decision of the Judge was a case management decision. Such decisions will rarely be the subject of an appeal because they are the result of an exercise of discretion and it will usually be very difficult to show that the judge had taken into account matters which he ought not to have taken into account, or had failed to take into account matters which he ought to have taken into account or had reached a decision which no reasonable judge could have reached.

The Judge was of course right to have in mind the age of the case. In having regard to the fact that trial was imminent he rightly had regard to the importance of avoiding delay. Finally, in having regard to the circumstance that the application was necessary because of a change of opinion which had occurred as a result of the experts’ discussion he was, I think, rightly having regard to the consideration that a party to a claim cannot usually be afforded a second expert merely because his or her first expert has altered his opinion after having discussed it with the opponent’s expert.

In considering whether the Judge failed to take into account any relevant matters it is necessary to consider what factors should be taken into account by a court on an application such as that made by the Claimant in this case. To do so it is first necessary to note the provisions of the CPR concerning meetings between experts.

CPR 35.12 provides as follows:

Thus the express purpose of a discussion between experts is to reach, if possible, an agreed opinion on the expert issues; see CPR 35.12(1)(b). It necessarily follows that the rule contemplates that as a result of the discussion an expert may modify or change the opinion he had previously expressed in his report. In the context of trial management that is a most desirable purpose because it will tend to reduce the duration and expense of the trial and encourage a settlement of the case. Thus the mere fact that an expert has changed or modified his opinion following an experts’ meeting cannot by itself be a reason for permitting for a party who is disappointed with the change or modification of opinion to adduce evidence from another expert. It would not be possible in such circumstances to suggest that further expert evidence was “reasonably required to resolve the proceedings”; see CPR Part 35.1.

However, an agreement between experts does not bind the parties unless they expressly agree to be bound by the experts’ agreement; see CPR 35.12(5). It must follow that a modification of an expert’s opinion also cannot bind the party who instructed him. It will no doubt be rare that a party will have any prospect of persuading a court not to follow the agreed opinion of the experts. But a note in the White Book at paragraph 35.12.1 gives an indication as to the circumstances in which a party may have some prospect of persuading the Court not to follow the agreed opinion of the experts.

If a dissatisfied party has good grounds for suggesting that an agreement between experts should not be accepted by the Court for reasons such as those suggested in that note he may well be unable to make that suggestion good without additional expert evidence (for which of course he will need the Court’s permission; see CPR 35.4). It therefore seems to me that the scheme of CPR 35 concerning experts’ discussions, and in particular the provision that a party is not bound by an agreement between experts, does not rule out the granting of permission to call a further expert but it will no doubt be a rare case where that will be appropriate.

I was not referred to any authority which considered the circumstances in which it might be appropriate to permit additional expert evidence in circumstances where both parties have already had permission to call expert evidence but one party is dissatisfied with the opinion of the expert instructed by him following discussion between the experts. I was referred to cases which dealt with a different question, namely, the circumstances in which it is appropriate to allow expert evidence where there has already been a report from a single joint expert; see Daniels v Walker [2000] 1 WLR 1382, Cosgrove v Pattison [2001] CP Rep.68 and Peet v Mid Kent Healthcare Trust [2001] EWCA Civ 1703. I do not consider that they give guidance on the question before me.

It follows, in my judgment, that 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 the experts’ discussion it should only do so 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 or fairly support his revised opinion, such as those mentioned in the note in the White Book to which I have referred. It is likely that it will be a rare case in which such good reason can be shown. 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” (CPR 35.1).

In the present case the Judge does 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 following discussion with the Defendant’s expert, there were or might be good reasons why the claimant should be permitted to adduce evidence from another expert.

Also, although the Judge had in mind delay, the Judge does not appear to have sought to assess in the course of his judgment when a trial was likely to take place if the application were successful (though there was discussion of this in the argument) and to consider whether the resulting delay would be sufficient to justify denial of the Claimant’s application. In this regard counsel for the Claimant had indicated during the argument that an appointment with an alternative expert had been fixed for 7 April and that allowing for a report and a further meeting of experts the case could be ready for listing by about 20 June.

For these reasons, I consider that the Judge did not have regard to all relevant matters when he considered the Claimant’s application. It follows that this Court must consider the Claimant’s application afresh even though the Judge’s decision concerned case management.

There is a further matter which is relevant in this context. Counsel for the Claimant has criticised the manner in which the Judge conducted the hearing. I do not propose to recount all of his criticisms in detail. However, it does appear from the transcript of the hearing that the Judge frequently interrupted Counsel for the Claimant and thereby made it difficult for Counsel to put forward his argument. The Judge also gave the impression that he thought that the claim for substantial loss of earnings was exaggerated. He did so by referring to the circumstance that he himself had had “a backache for 40 years when I can sit and do my job.” He said that

At the end of the hearing the Judge acceded to an application that he should recuse himself from hearing the trial.

The Judge’s interruptions and his apparent view of the lack of merit in the substantial claim for loss of earnings based upon his own experience rather than upon the evidence in the case have suggested to the Claimant and those advising her that the Judge allowed that view, although not expressed in his judgment, to influence his decision on the Claimant’s application. This has given the Claimant a sense of grievance as the manner in which her application was dealt with by the Judge. For this additional and exceptional reason it is appropriate that this Court should consider the Claimant’s application afresh even though the Judge’s decision concerned case management.

I must therefore consider whether the Claimant can show a good reason to suppose that Mr.Harris-Jones has modified the opinion expressed in his final report for reasons which cannot properly or fairly support it. Although counsel has submitted that the change was fundamental and very surprising given Mr. Harris-Jones’ knowledge of the Claimant’s injuries and symptoms and his clearly expressed opinion in his final report I do not consider that the Claimant can show any such good reason. It is not unusual for opinions to alter after informed discussion between experts. Indeed the CPR contemplates that opinions may well change after such discussion. The fact that an expert changes his opinion is not a ground for suggesting that his revised opinion is or may have been unfounded or not based upon sound reasoning.

The Claimant did not seek to question Mr.Harris-Jones about his changed opinion between December 2005 and the CMC in March 2006. Nor has the Claimant sought to do since that hearing. If enquiries had been made of Mr.Harris-Jones his reasons for changing his opinion might have been revealed. They may have been shown to be sound reasons, in which case there could be no ground for seeking additional expert evidence. Or they might have been shown to be unsound reasons or based upon a view of the facts which the Claimant maintains is mistaken. In that case Mr.Harris-Jones might have retracted his modified opinion for sound reasons and there would have been no need for expert evidence from an additional expert. If Mr.Harris-Jones did not retract his modified opinion despite there being sound reasons for doing so then the Claimant might have been able to show that there was good reason for having additional expert evidence. But no such enquiries were made and so the Claimant is simply left with the bare fact that Mr.Harris-Jones has modified his opinion after discussing his opinion with Mr.Boston. That cannot, in my judgment, be enough to show good reason for needing an additional expert.

It was suggested that in circumstances where it was said that the Claimant had lost trust in Mr.Harris-Jones following his change of opinion it was understandable that no enquiries had been made of Mr.Harris-Jones. I do not accept that submission. If a party wishes the Court to take the exceptional step of allowing additional expert evidence after his or her expert has changed his opinion the party will usually have to make appropriate enquiries of the expert in order to provide the material for his application to the Court. There was a suggestion in argument that calls had been made to the expert but that they had not been returned. However, there was no evidence of this and I have disregarded the suggestion. It was also observed that CPR 35.6 only provides for a party to put written questions to an expert appointed by another party or to a single joint expert. That is true but it does not mean, as was suggested, that a party cannot ask questions of his own expert.

The Claimant’s claim, on the basis of her evidence and on the opinion expressed in Mr.Harris-Jones’ final report is substantial. But that by itself cannot amount to a good reason for granting permission for additional expert evidence. To regard it as such would be to disregard the scheme provided in the CPR Part 35 for dealing with expert evidence. In circumstances where the Claimant has been granted permission to adduce the evidence of Mr.Harris-Jones it could not be said, without more, that additional expert evidence was “reasonably required to resolve the proceedings”.

However, there is one final matter which was relied upon in support of this appeal. In Cosgrove v Pattison [2001] CP Rep.68 Neuberger J. (as he then was) considered the approach to be followed when a party who was dissatisfied with the report of single joint expert might be granted permission to adduce evidence from another expert. He followed and elaborated upon the approach of the Court of Appeal in Daniels v Walker [2000] 1 WLR 1382. He listed a number of factors to be taken into account, the last two of which were any special features of the case and the overall justice of the case. In considering the overall justice of the case he asked himself two questions which he thought were of help. The first was, if the applicant was not entitled to call the additional evidence sought and lost the case would he have an understandable sense of grievance judged objectively and the second was, if the applicant was entitled to call the additional evidence and won the case would the respondent have an understandable sense of grievance judged objectively. It was submitted that I should follow that approach in this case.

Although Neuberger J. was dealing with a case in which a single joint expert had been instructed and I am not, the Court must always have regard to the overriding objective to deal with the case justly and in that regard the approach of Neuberger J. is apposite.

In the present case there is a special feature, namely, the manner in which the Judge dealt with the application during the hearing. I have already referred to that. I have therefore asked myself whether the Claimant, if she were not permitted to rely upon evidence from Mr.Horan and the Court accepted the opinion of Mr.Boston, would have an understandable sense of grievance judged objectively. I think she would.

Mr.Horan has written a report dated 6 April 2006, having examined the Claimant. Although counsel for the Defendant submitted that I should not have regard to that report, I consider that I should in circumstances where the Court is now itself determining the Claimant’s application. In that report Mr.Horan said:

The Claimant’s appeal has now been carefully considered by three judges of the High Court (one considering the application for permission to appeal on paper, one considering the application for permission to appeal at an oral hearing and one considering the appeal itself). But the application was originally rejected in circumstances in which her counsel was hindered in his presentation of her case by many interruptions by the Judge and in which the comments of the Judge during the hearing appeared to suggest that he had permitted his own opinion of the claim, based upon his own experiences rather than upon the evidence in the case, to influence his approach to the Claimant’s application. In those circumstances, if the Claimant is not permitted to rely upon the evidence of Mr.Horan and the Court subsequently accepts the opinion of Mr.Boston I consider that she would have an understandable sense of grievance judged objectively. I do not consider that that sense of grievance is likely to have been dispelled by the fact that matter has now been considered by the High Court.

If the Claimant is permitted to rely upon the opinion of Mr.Horan and the Court accepts his opinion and rejects the opinion of Mr.Boston I do not think that the Defendants would have a sense of grievance judged objectively. They would no doubt be disappointed but in circumstances where the trial judge will have considered all the expert evidence and reached a carefully considered conclusion I do not consider that such disappointment can properly be regarded as a sense of grievance judged objectively.

I have therefore concluded that, having regard to the very special circumstances of this case, dealing with the case justly requires permission to be granted to the Claimant to rely upon the expert evidence of Mr.Horan. I shall ask Counsel to agree the terms of an order giving effect to my decision.