Inspire MediLawExpert Witness Training for Medical Professionals

Paul Sankey, Enable Law

1: Addressing the Legal Issues

(a)Breach of duty

The test of breach of duty in clinical negligence cases depends on the issue being addressed:

1. treatment;2. diagnosis; 3. advice and consent.

The tests for treatment and diagnosis are dealt with below and the test for advice and consent (Montgomery v Lanarkshire) in a separate section.

(i) Treatment cases

The test of breach of duty in clinical negligence is known as the Bolam test and derives from Bolam v Friern Hospital Management Committee as modified by Bolitho v City & Hackney HA.

Bolam v Friern Hospital Management Committee [1957] 1WLR 582

Mr Bolam underwent electroconvulsive therapy. When given the treatment he suffered muscle spasms and fell off the bed, fracturing his hip. He alleged negligence in failing to give him muscle relaxant injections or restrain him. The court heard evidence that medical professional followed different practices – some gave muscle relaxant injections and restrained patients whilst, as both involved some risk, other did not.

The court ruled that a doctor is not negligent if (s)he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice. As Lord Scarman put it in the 1985 case of Sidaway, 'the law imposes a duty of care; but the standard of care is a matter of medical judgement'

Bolitho v City & Hackney HA [1996] 4 All ER 771

On 3 occasions a resuscitation team was called to a boy who suffered respiratory arrests on the ward. On each occasion they failed to attend. On the first 2 occasions he recovered. The third time he did not recover and suffered a serious brain injury. The Defendant argued that even if the team had attended they would not have intubated him and therefore he would still have suffered the brain injury. There was an argument as to whether failing to intubate would have been negligent. The court heard evidence that a reasonable body would not have intubated.

The House of Lords held that whilst a responsible body would not have intubated, the approach of that body was not rational. It affirmed but modified the Bolam test. Under the Bolam test an act is not a breach of duty if it conforms with a reasonable body of medical

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opinion. Bolitho established that to be reasonable a body of opinion must not be illogical – it must be capable of withstanding logical analysis.

Addressing breach of duty (treatment cases)

Remember that you need to address the correct test. The Bolam test is whether care fell below the standard expected of a reasonable doctor of a particular type (eg GP, cardiologist, vascular surgeon) such that there is no responsible body (even a minority) who would have done the same.

It is good practice to set out the Bolam test at the start of your report to show you understand it and that is the standard you are addressing.

Your job is to define the standard of care at the time of the relevant events – whether there was a responsible body of doctors in that field who would have done the same. So say:o what the standard was;o whether care accords with it;o whether there is nevertheless a responsible body who would have done the same;o if so whether that practice was reasonable, responsible, respectable – ie 'capable

of withstanding logical analysis' – see Bolitho)

Avoid language which fails to address the test and causes confusion:o 'substandard' (unless you clearly define this in Bolam terms); 'suboptimal'; 'not gold

standard'; 'not best practice'; 'poor'.

Avoid referring to breach of duty – your job is to give evidence as to the standard of care. Equating this with a breach of duty is a matter for the judge (although many lawyers and experts do not make this distinction).

(ii) Diagnosis cases

It is a moot point as to whether the Bolam test should apply to pure diagnosis cases. Whilst there may be different possible ways to approach managing a patient, the same should not apply to making a diagnosis. Reference to the practice of a responsible body makes little sense in this context ether. Arguably the test should be the exercise of reasonable care and skill.

However, in Muller v Kings College Hospital [2017] EWHC 128 (QB) (a case which involved the incorrect interpretation of pathology and a delayed diagnosis of melanoma), whilst the judge thought the Bolam test was not really appropriate for a pure diagnosis case, he felt constrained to apply the Bolam test as modified by Bolitho. He used Bolitho to enable him to prefer the evidence of one expert over another and rule that the practice of a responsible body who would not have made the diagnosis was not capable of rational analysis. Whilst not actually overtly adopting a test of 'reasonable care and skill', he used Bolitho to reach the same result.

Simon Fox has written about this in 'Bolam is dead, long live Bolam' (although he takes a slightly different view to me) https://www.inspiremedilaw.co.uk/the-latest-on-bolam-is-dead/

If you are reporting on diagnosis, clarify the test with your instructing solicitor.

(iii) Advice/consent

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Following the 2015 Supreme Court decision in Montgomery v Lanarkshire Health Board, the Bolam test does not apply to advice given to patients. The standard of whether advice is acceptable is broadly what a patient like this particular patient would be expected to want to know. It is not what a reasonable body of doctors would say. More specifically the Supreme Court set out the following principles (which I have numbered):

1. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment inferring with her bodily integrity is undertaken.

2. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, of any reasonable alternative or variant treatments.

3. The test of materiality is whether, in the circumstances of a particular case:i. a reasonable person in the patient's position would be likely to attach

significance to the risk, or ii. the doctor is or should reasonably be aware that the particular patient

would attach significance to it.

Deciding whether a risk is a material risk is not a matter for medical expert evidence. The means that the role of medical evidence in consent cases has changed. Again lawyers have not necessarily caught up with this change in the expert's role. Experts are still routinely asked to comment on matters which should be left to the judge.

It is important to understand where medical experts can appropriately comment. The Supreme Court said,

82. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.

83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical professions.

84. Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice

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which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.

So the role of expert evidence is to assess the adequacy of advice as to:

o the range reasonable treatment options; and

o what medical risks are involved in treatment;

but not:

o whether a particular form of treatment should be discussed with patients; or

o whether particular risks are 'material risks' and should be discussed with the patient.

See 2 cases on the point from 2017.

Thefault v Johnson [2017] EHWC 497: a patient was found not to have given valid consent to spinal surgery when the information she was given about its likely benefits was inaccurate. Expert evidence was given as to the risks and benefits of surgery and alternative conservative management.

Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62: An obstetrician failed to inform himself as to the significance of abnormalities found on antenatal scans, advise the mother of the risk of premature foetal death and give her the option of induction at term. The Court of Appeal (post-Montgomery) went beyond the evidence of the experts on both sides (given pre-Montgomery) as to what amounted to reasonable practice. o The Defendant's expert would not have attached significance to the

association and warned of the risk. o The Claimant's expert thought a discussion was required because the

obstetrician was taking an unusual course in allowing the pregnancy to continue. The implication was that a patient is only entitled to advice where the clinician departs from normal practice.

o The Court of Appeal rejected both approaches: the mother was entitled to know of the risk whatever the experts thought.

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(b) Causation

In most cases the test of whether a breach of duty caused harm is the 'but for' test. The question to address is 'what would the outcome have been but for the negligence?'. Conceptually this is straightforward although its application can seem arbitrary.

The standard of proof in civil cases is 'the balance of probabilities', in other words that something is more likely than not. Something is more likely than not if there is a greater than 50% chance that it is, was or would have been the case. The court does not require certainty or even high probability – only probability. Medical professionals often find this uncomfortable.

In many cases applying the 'but for' test is conceptually straightforward even if deciding that would have happened but for the negligence is not. Some cases to illustrate the test follow.

Barnett v Kensington & Chelsea Hospital Management Committee [1969] 1 QB 918

A man attended the Emergency Department complaining of nausea, vomiting and feeling unwell after drinking tea in which there was some arsenic. He was discharged in breach of duty and died of arsenic poisoning. A claim on behalf of his estate failed because despite the breach of duty, treatment could not have saved his life. This is a straightforward application of the 'but for' test.

Gregg v Scott [2005] UKHL 2

A GP breached his duty in failing to refer the claimant for investigation of swollen lymph nodes. This delayed his diagnosis of lymphoma by 9 months. During this period his chance of 10 year survival was reduced from 42% to 25%. He argued that this was a real loss which should be compensated in damages – he has lost a significant chance of survival. The House of Lords applied the 'but for' test and ruled that the breach of duty had not on the balance of probabilities changed the outcome. His prognosis was already below 50% at the time of the breach of duty. He would probably not have survived irrespective of the breach of duty.

Wilsher v Essex Area Health Authority [1988] AC 1074

A premature baby was given excessive oxygen and developed blindness from Retrolental Fibroplasia (RLF). There were at least 5 factors potentially causing the condition. The evidence established that the excessive oxygen increased the risk of RLF but not that the condition would have been avoided but for the negligence. The claim failed.

There are some cases in which the 'but for' test is not the correct test. The most significant is probably where all the Claimant needs to prove is that the breach of duty materially contributed to the injury. The test was set out in Bailey v Ministry of Defence.

Bailey v Ministry of Defence [2008] EWCA Civ 883

The Claimant suffered a brain injury after aspirating vomit. 3 factors contributed to her aspirating: weakness follow an operation to remove bile stones (during which she bled extensively); inadequate resuscitation; and pancreatitis. Only one of these factors – the inadequate resuscitation – was the result of a breach of duty. Unlike in Wilsher, medical evidence could not determine whether she would have aspirated but for the breach of duty but it had made a material contribution. She could not therefore meet the 'but for' test. The Court of Appeal found that she could recover in full in circumstances where:

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medical science could not answer the but for question; this was an 'indivisible' injury (ie it was all or nothing – she would either have

aspirated or not); the breach of duty made a 'material contribution' to the injury; and the material contribution was 'more than negligible'.

The test in Bailey has been applied in a few subsequent reported cases but not many. It is not generally well-understood by many. If you think the Bailey test should apply in a case, discuss it with your instructing solicitors.

Addressing Causation

Bear in mind the test you should apply. In the vast majority of cases this is the 'but for' test.

In a few cases you may need to address the Bailey test: whether the breach of duty made a material contribution to the claimant's injury.

o This applies only in quite unusual circumstances (see comments on Bailey above)

o If you think it applies, your solicitor should guide you;

Causation issues may include:

o what a patient's condition probably was;o what her course of treatment would probably have been if diagnosed;o what the outcome would probably have been;o whether the alleged breach of duty probably caused the harm.

Bear in mind the standard of proof – the balance of probabilities (or more than 50% likely).

Some implications:

o The key word to use is 'probable' (or 'on the balance of probabilities'). The court (and your solicitor) needs to know whether you think x was probable or not.

o Avoid 'possible' unless you qualify it by saying 'but not probable'.o Avoid 'may'.o Don’t sit on the fence – the issue may be finely balanced (and you can say so)

but give your opinion as to what is most probable. 50-50 is not good enough. If it is actually a 50% case, the Claimant will fail.

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(c) Condition

In any claim for damages for injuries, the Claimant is required to serve expert evidence on condition and (if the person is still alive) prognosis.

The expert evidence on condition and prognosis supports a claim for 'pain, suffering and loss of amenity' (PSLA). This is an award to reflect the condition itself and its impact on daily activities.

It also provides the medical basis for other claims. Eg if the Claimant is claiming loss of earnings, the court needs to know whether the limitations she reports which stops her working is consistent with her condition.

When reporting on condition you will probably need to address:o diagnosis;o the patient's reported experience of her condition – ie the impact she reports

and whether it is consistent with what is known of that condition;o pain – nature (what sort of pain), degree (how bad it is), location (where it is),

consistency or variability and any activities triggering it; o impact on function: what she can and can't do. Note that is very important for

quantifying the claim. For instance if there are household tasks she can no longer do, or she cannot now drive, it may be reasonable to claim the costs of someone else providing the service. So clear evidence on function is very important.

o impact on work: this may be important if it is appropriate to claim loss of earnings; and

o impact on leisure: which may be relevant to the award for PSLA claim in relation to loss of amenity.

Where there is uncertainly, remember that the test is whether something is more likely than not: the balance of probabilities

(d) Prognosis

In relation to past or present events, we need to know what is more likely than not. But in relation to future events possibilities become important. If for instance there is a risk of the Claimant suffering a complication and needing surgery in the future, she may be entitled to claim some of the cost. To translate this into damages we need to know:

o that the percentage chance of the complication arising is – because if is 20% we will only be able to claim 20% of the cost;

o when the complication will most probably arise – because if it is in 10 years, we will need to discount for 10 years' early receipt (the claimant is assumed to invest the money at a certain rate of interest and with a certain level of inflation); and

o what other losses she will suffer – eg how long she will be off work, how much care she will need for how long etc.

Being asked to give views on matters which may seem speculative can be frustrating. But without your answer the judge (and the parties) cannot value future loss.

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2: Fulfilling Your Duties as an Expert

Civil procedure is governed by the Civil Procedure Rules 1998. Part 35 (CPR 35) governs expert evidence. It is set out at Appendix 1. The Rules are supplemented by a Practice Direction (PD). It is important that you are familiar with CPR 35. It is set out at Appendix 2.below.

The duty

CPR 35.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received instructions or by whom they are paid.

(a) The right expertise

Note your duty is to help the court on matters within your expertise. You should only accept instructions on matters where you are an appropriate expert. You will need to demonstrate in your report why you are an appropriate expert. Note PD 35.3.2 'An expert's report must: (1) give details of the expert's qualifications'. PD 35.2.4 says that experts should say where a question or issue falls outside their expertise (' Experts should make it clear (a) when a question or issue falls outside their expertise')

Your CV

You should normally append your CV to your report. It is important that your CV is accurate and demonstrates your expertise to give evidence. Do not accept work in an area where you are not really an expert. Besides failing in your duty to the court, you will probably be embarrassed when facing someone with greater expertise. Note that your CV (and your experience) will be scrutinised at trial and the judge will comment on it.

Bear in mind that different issues require different forms of expertise. For instance a claim that knee surgery a general orthopaedic surgeon breached It may need to show you have the specialist expertise to comment on causation or that your practice is sufficiently similar to that of the relevant doctor to comment on breach of duty.

(b) Addressing your report to the court

Because you are reporting for the benefit of the court you should address your report to the court. See PD 35.3.1 'An expert's report should be addressed to the court and not to the party from whom the expert has received instructions'.

(c) Maintaining Objectivity

Experts have a duty to give independent, unbiased advice to the court. Note PD 35.2

'2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.2.2  Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.'

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Experts have a duty to the court and are expected to be impartial. The 'useful test of independence' (ie whether you would give the same advice is the other party were instructing you. The Expert Witness Institute suggests a more rigorous checklist of independence (set out in Appendix 3)

In practice many experts tend to be sympathetic to the party instructing them and, if they have already reported in a way which supports that party's case, are at risk of being partisan in favour of that case. Maintaining objectivity is important but not easy.

Cautionary tales:

The Defensive expert: Edward Lifesciences v Boston Scientific, 2017o 'I regret to say that in the course of listening to Prof M, I formed the impression

that he has also developed what might be regarded as an expertise in giving evidence. Prof M was extremely careful in giving his answers. I increasingly took the view that this was because his first priority was to avoid saying anything that might damage Boston's case.'

o In contrast: 'I found Dr B to be an excellent witness. He gave clear and direct answers without undue delay wherever he was able to.'

The expert who knew a party: EXP v Barker 2017: (Failure by neuroradiologist, Dr B, to report an aneurysm on MRI).

o Dr M (he expert) had trained Dr B. They had worked together closely over a substantial period and written a paper together (not listed in Dr M's list of publications). Dr B had suggested Dr M as an expert. All this only emerged in cross-examination at trial.

o The judge: 'my confidence in Dr M's independence and objectivity has been very substantially undermined'. The expert was so compromised that the decision whether to admit his evidence was finely balanced. It was admitted but the judge rejected it and preferred the Claimant's expert.

The expert who knew a party: Thefaut v Johnson 2017o 'In the specialist field in issue there are a relatively small number of

surgeons…In such circumstances there is a high probability that when one of this select group is instructed to act as an expert in a case he or she may know of the Defendant either personally or by repute. This was the case of Mr G in relation to Mr J…it is my view that Mr G would have been far better to get out in the open his personal knowledge of Mr J. A concise but accurate and comprehensive paragraph in his report setting out the bare facts of his knowledge of Mr J would have sufficed. This would have taken much of the sting out of the cross examination which did, I am bound to say, leave Mr G feeling and sounding defensive. The issue here is the appearance of bias.'

(d) Avoid advocacy

Note that experts should not assume the role of an advocate (PD 35.2.2). You can argue for your point of view without argue a party's case.

Cautionary tale:

Muller v Kings College [2017]o 'I shared Mr Gibson's concerns about the manner in which Prof W's evidence

was given; he used the vert "submit" and referred to his "argument" when giving his oral evidence'.

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(e)Considering all the evidence

PD 35.2.3 says:

'Experts should consider all material facts, including those which might detract from their opinions.'

Consider in particular:

o Medical records: are they complete?o Witness statements

Where there is a conflict of facts, you must leave it to the judge to resolve that conflict. You can however express a view where, based on your expertise and experience, one set of facts is improbable or less probable. It is appropriate to comment if you are applying your expertise and not just weighing evidence. Eg where there is a conflict of evidence as to the condition of a child seen in the Emergency Department only a few hours before developing seizures from meningitis.. The parents say he was feverish and lethargic; the records say he was normal. You may be able to say whether it is likely that the child was in fact normal. the child with viral meningitis recorded as being normal a few hours before diagnosis

Cautionary tale:

The expert who ignored the facts: Ruffell v Lovatt 2018o A pain management expert heavily criticised. His evidence was so flawed it

was rejected on any contentious point. He had failed to read the medical records which were inconsistent with his conclusion. He was neither careful nor forensically thorough. This led him to putting forward ‘several plainly absurd conclusions’

o NB he was criticised for various other failings.

(f) Use of Medical Records

Medical records are an important source of evidence but they are not the only one. It is important not simply to assume that everything in the records is correct and take into account other witness evidence (eg statements from the Claimant and treating doctors).

Bear in mind that when the allegation is that a doctor failed to note what a patient said, absence of evidence in the records is not evidence of absence. There may, however be other information in the records which through light on that allegation, including how thorough the records are for that entry and elsewhere.

When referring to medical records, it is helpful to work from a paginated bundle and give the page number.

Some experts copy and paste from the medical records into their reports. That can be very helpful provided there is a clear narrative to explain the records.

Beware of referring in your report to sensitive matters mentioned in the records which have no bearing on the claim.

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Patient records are covered by the Data Protection Act 1998. Sending records and reports are points at which there are risks of accidental disclosure to third parties. Many solicitors are now sending records by secure means.

(g) Range of opinions

If there is a range of opinions summarise that range and explain how you arrived at your view. If you do not have enough information on which to reach your conclusion or if you evidence is qualified (eg because there it depends on conflicting evidence), make this clear. See PD 35.3.2:

'An expert's report must:

(6) where there is a range of opinion on the matters dealt with in the report –(a) summarise the range of opinions; and(b) give reasons for the expert's own opinion;'

(h) Changes of opinion

PD 35.2.5 says:

'If, after producing a report, an expert's view changes on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the court'.

If you change your mind, it is your duty to the court to change your evidence. You are unlikely to be criticised if you change your mind because new evidence has become available. But avoid putting yourself in a position where you have to change your mind by thinking through your views carefully at the outset.

(i) The Evidence for your views

Reports should explain why they reach their conclusions. Their persuasiveness depends on telling a clear story which makes sense.

Provide evidence for your viewso Cite peer-reviewed literature (undertake literature searches on medical

databases);o Cite international, national or local guidelines as to the practice adopted and

explain their applicability within the relevant clinical setting;o Cite textbooks to demonstrate current accepted practice.

A cautionary tale: Nasir Hussain v Bradford Teaching Hospital NHS Foundation Trust 2011. The judge's comments:

o 'Although there was a good deal of literature on the subject…Mr M did not rely on any of that…He only referred to it to dismiss the literature altogether…Instead he sought to rely on his own experience which, because it was both contradictory and undocumented, could not be the subject of meaningful research or comment by the defendant's experts'.

Another cautionary tale from 2014: Hirstensten and another 2014

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o 'Mr C's valuation approach effectively involved putting the available information into a black box from which a figure emerged based entirely on his gut feel. The problem with a valuation being pronounced ex cathedra in this way is that it is not capable of bering tested or subjected to any rational scrutiny. It amounts to saying, 'Trust me, I am an expert valuer…Experts' opinions, if they are to be accorded any weight, need to be supported by a transparent process of reasoning.'

Be prepared to rely on experience where there is no research but explain what that experience is and why you reach your conclusion.

(j) The contents of your report

PD 35.3.2 sets out various matters in relation to the form and contents of your report. These include that you understand your duty to the court and have complied with it. (You may be cross-examined about how well you understand your duty. It is well to be familiar with CPR 35.)

Note that the contents of your report, written answers to Part 35 questions (see below) and your entries in the joint statement comprise your evidence. You may not be able to supplement it at trial. So make sure your report is complete.

(k) Clarity

Explain medical terms in simple language: bear in mind that the judge is unlikely to be medically qualified and may not even be an injury lawyer.

(l) Part 35 Questions

CPR 35.6 says:

(1) A party may put written questions about an expert's report (which must be proportionate) to –(a) an expert instructed by another party; or(b) a single joint expert appointed under rule 35.7.(2) Written questions under paragraph (1) –(a) may be put once only;(b) must be put within 28 days of service of the expert’s report; and(c) must be for the purpose only of clarification of the report,unless in any case –(i) the court gives permission; or(ii) the other party agrees.(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as part of the expert’s report.(4) Where –(a) a party has put a written question to an expert instructed by another party; and(b) the expert does not answer that question,the court may make one or both of the following orders in relation to the party who instructed the expert –(i) that the party may not rely on the evidence of that expert; or(ii) that the party may not recover the fees and expenses of that expert from any other party.

The basic principle: the other side can put written questions to you.

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In practice this is rarely used. It can only help that both sides understand each other's case. But there is a risk in giving the opponent an opportunity to improve their case or giving advance notice of a line of cross-examination.

Questions must be proportionate (you will need guidance from your solicitor on whether they are). They can only be put once (but it seems to me that if you were sent follow-up questions you should consider with your solicitor whether to answer – it is in everyone's interests to clarify the issues). They must be put within 28 days (same principle).

They should normally be for clarification – so to explain what you have already said, not to invite you to give evidence on a point on which you have not commented. The court can order or the parties can agree to questions not just for clarification of what the expert has said.

Your answers become part of your report. This means they need care. You should let your instructing solicitor consider them before sending the reply just as your report would not normally be disclosed without your solicitor considering them.

Sanctions for failure to respond:

o Disallowance of your evidence;o Disallowance of your fees from the other party.

(m) Experts' right to ask the court for directions

Part 35.14 says:

(1) Experts may file written requests for directions for the purpose of assisting them in carrying out their functions.(2) Experts must, unless the court orders otherwise, provide copies of the proposed requests for directions under paragraph (1) –(a) to the party instructing them, at least 7 days before they file the requests; and(b) to all other parties, at least 4 days before they file them.(3) The court, when it gives directions, may also direct that a party be served with a copy of the directions.

This is rarely used.

Be aware that it is an available resource.

Normally it will be unnecessary because your instructing solicitor will be able to guide you.

It is difficult to imagine circumstances in which it would be needed.

(n) Discussions of Experts and Joint statements

CPR 35.12 says:

(1) The court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to –(a) identify and discuss the expert issues in the proceedings; and

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(b) where possible, reach an agreed opinion on those issues.(2) The court may specify the issues which the experts must discuss.(3) The court may direct that following a discussion between the experts they must prepare a statement for the court setting out those issues on which –(a) they agree; and(b) they disagree, with a summary of their reasons for disagreeing.(4) The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.(5) Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Although the direction says the court 'may' it almost always does.

The purpose is to clarify the issues in dispute (and not to resolve them). The judge may turn to the joint statement at the outset for a way of quickly understanding the issues. The judge should be able to understand where and exactly why the experts disagree.

This is an absolutely key stage of the litigation and it is important to prepare for it carefully. Many cases flounder because unprepared experts unwittingly make concessions at the experts' meeting.

The claimant's solicitor (or counsel) prepares the agenda and then should normally agree it with the defendant's solicitor. The questions should be designed to address the issues in dispute. The starting point is to go back to the pleadings, which set out the claimant's allegations and the defendant's case on those allegations. The questions should be phrased in neutral terms – they should not be designed to trap an expert or comprise cross-examination – their purpose is to clarify the issues in dispute.

The agenda will normally include:o A reminder of the legal tests of breach of duty and causation;o A list of documents considered – look at this carefully to check you have seen

the same documents as the opponent's expert;o Questions.

An expert will often be asked to consider the draft agenda before it is agreed. A prompt response is helpful because time limits are short.

Discussions are normally by telephone but can be face to face.

The discussion is without prejudice: it cannot be referred to at trial without agreement of the parties. But be careful what you say. The other side can take advantage of unguarded comments.

Beware of the bully or the world-renowned expert: be prepared to stand your ground on what you think is correct.

You should record the outcome of the discussion in a joint statement.

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o Copy and paste the questions from the agenda and set out the answers below the questions.

o Avoid too much discussion backwards and forwards following the meeting. The joint statement is not a format for an ongoing argument.

o Make your views are fairly represented. Ideally prepare the joint statement yourself – take great care if your opponent does it.

o Make sure your explanations are clear and full where points are disputed.o Avoid saying less on paper than your opponent.

You should not send a draft of your answers to your instructing solicitor.

If you change your view in the meeting of experts you should carefully explain why. But much better not to put yourself in a position where you have to change your view – get it right first time.

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3: The Claims Process

The Claims Process

Before issue of proceedings: Much of the investigation takes place before the issue of proceedings and is governed by the Clinical Disputes Protocol. The Claimant's solicitor will normally:

o obtain medical records;o obtain any witness evidence; and o instruct an expert on breach of duty and/or causation.

If the expert evidence is supportive, the next stages are:

o to instruct an expert to report on condition and prognosis, o calculate financial loss; and o send a detailed letter of claim to the defendant.

The Defendant has 4 months to investigate and respond. If the defendant denies liability, the Claimant's solicitor may arrange a conference with a barrister to test the strength of the expert evidence before issuing proceedings. Experts reports are not normally disclosed to the defendant before issuing proceedings. Some solicitors will disclose them 'without prejudice', meaning that they cannot be referred to in court or in open correspondence.

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Establish the facts:

RecordsStatement

Instruct expertBreach of duty

CausationC and P

Letter of claimResponse (4

months)

After issue of proceedings the stages are:o The Claimant sends the Defendant the Claim Form, Particulars of Claim

(setting out the allegations of negligence), a medical report on condition and prognosis and a schedule of financial loss;

o The Defendant sends the Claimant a Defence (setting out its case) within 28 days (often extended to 56 days);

o Note that the collective term for Particulars of Claim and Defence is 'Statements of Case' (not to be confused with witness statements)

o The court sets a timetable and a budget for the various stages of the claim at a procedural hearing;

o Mutual disclosure of relevant documents;o Exchange of witness statements;o Exchange of expert reports on breach of duty and causation;o Exchange of expert reports on condition and prognosis (although often the

Claimant serves first)o Sequential disclosure of the Claimant's schedule of loss and the Defendant's

counter-scheduleo Occasionally parties ask questions of the other side's expert;o Agendas are prepared for meetings of experts;o Discussion of experts;o Joint statements of experts;o Alternative dispute resolution (ADR) (settlement meetings, mediation,

exchange of offers). This is 'without prejudice' communication.o Trial

In brief:

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Conferences

In more complex claims there will often be a meeting with a barrister ('counsel') and at you and other experts are asked to participate.

Conferences are often held before issuing proceedings, before serving expert reports on liability, after exchange of expert reports, after joint statements and before trial.

Conferences often take 2-3 hours, depending on the number of experts involved and there may be periods when you have little to contribute because counsel is questioning another expert. You should arrange your commitments so that you can focus on the claim and avoid taking calls.

The purpose of the conference is usually to test the expert evidence. This may involve a sustained period of questioning from the barrister. It can feel like a grilling and it can resemble cross-examination at times.

Good preparation is important. Conferences are key stages in the claim where the lawyers assess the strength of a case. You should have relevant documents (such as medical records and your report) to hand, to have familiarised yourself with the case and to be able to justify your opinion.

Some conferences take place by telephone but where possible they should be face to face. In particular a conference before trial should be face to face. Communication in

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person is often clearer in person and it easier to consider documents together. Your body language and the way your respond to questioning are important factors in assessing how you will perform at trial.

Use of Language

Some procedural language to understand:

o Claimant (not Plaintiff)o Proceedings – the court process as opposed to any pre-issue stageso Claim Form (not Writ)o Particulars of Claim – formal court document setting out the matters the

Claimant aims to prove, including the allegations of negligenceo Defence – formal court document setting out the Defendant's caseo Statements of Case (not Pleadings) – Particulars of Claim and Defence

(and not witness statements)o Part 35: the part of the Civil Procedure Rules dealing with expert evidence.o ADR (alternative dispute resolution) – ways of resolving a claim without trial

or discontinuance; ie negotiation, a settlement meeting (or round table meeting, RTM, JSM) or mediation

o Without Prejudice: ie not visible to the judgeo Quantum: the actual damages to be claimed including various 'heads of

loss'.

Otherwise use plain English.

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4. Working with your lawyer and understanding costs

The relationship with your lawyer: the working relationship

Time limits

Bear in mind that you are only one part of a long process which needs to be progressed as quickly as possible. So before instructing you, your lawyer will need to have obtained medical records (3 months?), considered them, discussed them with the client, and possibly instructed other experts. After receiving your report there may be delays from instructing other experts, waiting for a response to a letter of claim (4 months +), arranging a conference etc. A claim form needs to be issued within 3 years and a client will rarely consult a solicitor right at the outset (she may well not know how serious the outcome of an error will be may be or may be focussed on treatment). So please keep your waiting list to a reasonable period (as a guide not more than 3 months) and respond to follow-up requests promptly.

Once proceedings are issued time limits are set by the court and failure to comply is extremely serious. The court can disallow evidence which is late. Even where it gives permission the claimant (or her solicitors) may incur significant cost.

Responsiveness

Most solicitors value a relationship where they can pick up the phone to an expert and get a clear answer. Often direct communication is much more efficient than long exchanges of letters. It is irritating to be charged for every communication. Include in the overall cost of your report allowance for some post-report communication. If that communication is necessary because your solicitor finds your report unclear it is inappropriate to charge for clarification.

Consistency

Think through your conclusions carefully at the outset and reach an opinion you can properly maintain throughout. It may be appropriate to change your opinion if new information comes to light or if you realise you were wrong in what you said earlier (bearing in mind your duty to the court). But bear in mind that a late change of mind may

o Be devastating to the client who has a longstanding emotional investment in the claim;

o Incur very significant cost to your solicitors – who may have done years of work for which they cannot charge;

o Incur significant loss for insurers who share the risk of the claim (and for example may be paying expenses of the claim)

o Incur loss for the opponent who may also have incurred cost they cannot recover (and this may be a loss of the public purse);

o Undermine your own reputation as an expert and your medico-legal practice.

Handling the client

Clients tend to form their views of us based on whether they like us – whether we are sympathetic. They are more likely to accept what we say if they think we are.

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Ensure clients are treated well during consultations. Take into account what they say: read their witness statements and refer to their account in your report. If there is a conflict with the medical records, say so and don’t just assume the records are right. If you think the medical records are more consistent with other evidence, explain why. Word reports tactfully: bear in mind that client will read them. Don't cite irrelevant and prejudicial comments from medical records. Be tactful where saying clients are wrong or they have no case.

Costs

The need to handle what are expensive claims economically represents a considerable challenge

Most claims are handled under

o Conditional Fee Agreements (CFAs) – under which solicitors take the risk of not getting paid if the claim fails and claimants ultimately make a contribution to costs from damages if successful; or

o Legal Aid – which only applied to babies suffering neurological injuries within the first weeks of life (mostly birth brain injuries) – funded by the state but solicitors are paid at low rates if the claim fails

Constraints on costs

o Recoverable costs must be proportionate to the value of the claim (and we may not know the value at the outset)

o The court sets a budget for what parties can spend (including for experts' fees)

o Costs are subject to assessment by the court at the end of the claim

It is helpful

o To give solicitors an early steer on whether a claim is likely to be worthwhile – to avoid both sides incurring avoidable costs

o To keep help us keep costs to a minimum

Fixed Costs

o Fixed costs have been introduced into lower value personal injury claims. They are likely to be introduced for clinical negligence claims of up to £25,000. In the longer term they may be introduced for higher value claims.

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APPENDIX 1: CPR Part 35:

1.1 Duty to restrict expert evidence

(a) 35.1

Expert evidence shall be restricted to that which is reasonably required to resolve the

proceedings.

1.2 Interpretation and definitions

(a) 35.2

(1) A reference to an ‘expert’ in this Part is a reference to a person who has been instructed

to give or prepare expert evidence for the purpose of proceedings.

(2) ‘Single joint expert’ means an expert instructed to prepare a report for the court on behalf

of two or more of the parties (including the claimant) to the proceedings.

1.3 Experts – overriding duty to the court

(a) 35.3

(1) It is the duty of experts to help the court on matters within their expertise.

(2) This duty overrides any obligation to the person from whom experts have received

instructions or by whom they are paid.

1.4 Court’s power to restrict expert evidence

(a) 35.4

(1) No party may call an expert or put in evidence an expert’s report without the court’s

permission.

(2) When parties apply for permission they must provide an estimate of the costs of the

proposed expert evidence and identify –

(a) the field in which expert evidence is required and the issues which the expert evidence

will address; and

(b) where practicable, the name of the proposed expert.

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(3) If permission is granted it shall be in relation only to the expert named or the field

identified under paragraph (2). The order granting permission may specify the issues which

the expert evidence should address.

(3A) Where a claim has been allocated to the small claims track or the fast track, if

permission is given for expert evidence, it will normally be given for evidence from only one

expert on a particular issue.

(3B) In a soft tissue injury claim, permission—

(a) may normally only be given for one expert medical report;

(b) may not be given initially unless the medical report is a fixed cost medical report. Where

the claimant seeks permission to obtain a further medical report, if the report is from a

medical expert in any of the following disciplines—

(i) Consultant Orthopaedic Surgeon;

(ii) Consultant in Accident and Emergency Medicine;

(iii) General Practitioner registered with the General Medical Council; or

(iv) Physiotherapist registered with the Health and Care Professions Council, the report must

be a fixed cost medical report.

(3C) In this rule, ‘fixed cost medical report’ and ‘soft tissue injury claim’ have the same

meaning as in paragraph 1.1(10A) and (16A), respectively, of the RTA Protocol.

(Paragraph 7 of Practice Direction 35 sets out some of the circumstances the court will

consider when deciding whether expert evidence should be given by a single joint expert.)

(4) The court may limit the amount of a party’s expert’s fees and expenses that may be

recovered from any other party.

1.5 General requirement for expert evidence to be given in a written report

(a) 35.5

(1) Expert evidence is to be given in a written report unless the court directs otherwise.

(2) If a claim is on the small claims track or the fast track, the court will not direct an expert to

attend a hearing unless it is necessary to do so in the interests of justice.

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1.6 Written questions to experts

(a) 35.6

(1) A party may put written questions about an expert's report (which must be proportionate)

to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,

unless in any case –

(i) the court gives permission; or

(ii) the other party agrees.

(3) An expert’s answers to questions put in accordance with paragraph (1) shall be treated as

part of the expert’s report.

(4) Where –

(a) a party has put a written question to an expert instructed by another party; and

(b) the expert does not answer that question,

the court may make one or both of the following orders in relation to the party who instructed

the expert –

(i) that the party may not rely on the evidence of that expert; or

(ii) that the party may not recover the fees and expenses of that expert from any other party.

1.7 Court’s power to direct that evidence is to be given by a single joint expert

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(a) 35.7

(1) Where two or more parties wish to submit expert evidence on a particular issue, the court

may direct that the evidence on that issue is to be given by a single joint expert.

(2) Where the parties who wish to submit the evidence (‘the relevant parties’) cannot agree

who should be the single joint expert, the court may –

(a) select the expert from a list prepared or identified by the relevant parties; or

(b) direct that the expert be selected in such other manner as the court may direct.

1.8 Instructions to a single joint expert

(a) 35.8

(1) Where the court gives a direction under rule 35.7 for a single joint expert to be used, any

relevant party may give instructions to the expert.

(2) When a party gives instructions to the expert that party must, at the same time, send a

copy to the other relevant parties.

(3) The court may give directions about –

(a) the payment of the expert’s fees and expenses; and

(b) any inspection, examination or experiments which the expert wishes to carry out.

(4) The court may, before an expert is instructed –

(a) limit the amount that can be paid by way of fees and expenses to the expert; and

(b) direct that some or all of the relevant parties pay that amount into court.

(5) Unless the court otherwise directs, the relevant parties are jointly and severally liable(GL)

for the payment of the expert’s fees and expenses.

1.9 Power of court to direct a party to provide information

(a) 35.9

Where a party has access to information which is not reasonably available to another party,

the court may direct the party who has access to the information to –

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(a) prepare and file a document recording the information; and

(b) serve a copy of that document on the other party.

1.10 Contents of report

(a) 35.10

(1) An expert’s report must comply with the requirements set out in Practice Direction 35.

(2) At the end of an expert’s report there must be a statement that the expert understands

and has complied with their duty to the court.

(3) The expert’s report must state the substance of all material instructions, whether written

or oral, on the basis of which the report was written.

(4) The instructions referred to in paragraph (3) shall not be privileged(GL) against disclosure

but the court will not, in relation to those instructions –

(a) order disclosure of any specific document; or

(b) permit any questioning in court, other than by the party who instructed the expert,

unless it is satisfied that there are reasonable grounds to consider the statement of

instructions given under paragraph (3) to be inaccurate or incomplete.

1.11 Use by one party of expert’s report disclosed by another

(a) 35.11

Where a party has disclosed an expert’s report, any party may use that expert’s report as

evidence at the trial.

1.12 Discussions between experts

(a) 35.12

(1) The court may, at any stage, direct a discussion between experts for the purpose of

requiring the experts to –

(a) identify and discuss the expert issues in the proceedings; and

(b) where possible, reach an agreed opinion on those issues.

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(2) The court may specify the issues which the experts must discuss.

(3) The court may direct that following a discussion between the experts they must prepare a

statement for the court setting out those issues on which –

(a) they agree; and

(b) they disagree, with a summary of their reasons for disagreeing.

(4) The content of the discussion between the experts shall not be referred to at the trial

unless the parties agree.

(5) Where experts reach agreement on an issue during their discussions, the agreement

shall not bind the parties unless the parties expressly agree to be bound by the agreement.

1.13 Consequence of failure to disclose expert’s report

(a) 35.13

A party who fails to disclose an expert’s report may not use the report at the trial or call the

expert to give evidence orally unless the court gives permission.

1.14 Expert’s right to ask court for directions

(a) 35.14

(1) Experts may file written requests for directions for the purpose of assisting them in

carrying out their functions.

(2) Experts must, unless the court orders otherwise, provide copies of the proposed requests

for directions under paragraph (1) –

(a) to the party instructing them, at least 7 days before they file the requests; and

(b) to all other parties, at least 4 days before they file them.

(3) The court, when it gives directions, may also direct that a party be served with a copy of

the directions.

1.15 Assessors

(a) 35.15

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(1) This rule applies where the court appoints one or more persons under section 70 of the

Senior Courts Act 19811 or section 63 of the County Courts Act 19842as an assessor.

(2) An assessor will assist the court in dealing with a matter in which the assessor has skill

and experience.

(3) An assessor will take such part in the proceedings as the court may direct and in

particular the court may direct an assessor to –

(a) prepare a report for the court on any matter at issue in the proceedings; and

(b) attend the whole or any part of the trial to advise the court on any such matter.

(4) If an assessor prepares a report for the court before the trial has begun –

(a) the court will send a copy to each of the parties; and

(b) the parties may use it at trial.

(5) The remuneration to be paid to an assessor is to be determined by the court and will form

part of the costs of the proceedings.

(6) The court may order any party to deposit in the court office a specified sum in respect of

an assessor’s fees and, where it does so, the assessor will not be asked to act until the sum

has been deposited.

(7) Paragraphs (5) and (6) do not apply where the remuneration of the assessor is to be paid

out of money provided by Parliament

APPENDIX 2: CPR PRACTICE DIRECTION 35

(a) Introduction

1 Part 35 is intended to limit the use of oral expert evidence to that which is reasonably

required. In addition, where possible, matters requiring expert evidence should be dealt with

by only one expert. Experts and those instructing them are expected to have regard to the

guidance contained in the Guidance for the Instruction of Experts in Civil Claims 2014 at

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www.judiciary.gov.uk. (Further guidance on experts is contained in Annex C to the Practice

Direction (Pre-Action Conduct)).

(b) Expert Evidence – General Requirements

2.1 Expert evidence should be the independent product of the expert uninfluenced by the

pressures of litigation.

2.2  Experts should assist the court by providing objective, unbiased opinions on matters

within their expertise, and should not assume the role of an advocate.

2.3 Experts should consider all material facts, including those which might detract from their

opinions.

2.4 Experts should make it clear –

(a) when a question or issue falls outside their expertise; and

(b) when they are not able to reach a definite opinion, for example because they have

insufficient information.

2.5 If, after producing a report, an expert's view changes on any material matter, such

change of view should be communicated to all the parties without delay, and when

appropriate to the court.

2.6

(1) In a soft tissue injury claim, where permission is given for a fixed cost medical report, the

first report must be obtained from an accredited medical expert selected via the MedCo

Portal (website at: www.medco.org.uk).

(2) The cost of obtaining a further report from an expert not listed in rule 35.4(3C)(a) to (d) is

not subject to rules 45.19(2A)(b) or 45.29I(2A)(b), but the use of that expert and the cost

must be justified.

(3) ‘Accredited medical expert’, 'fixed cost medical report', ‘MedCo’, and 'soft tissue injury

claim' have the same meaning as in paragraph 1.1(A1), (10A), (12A) and (16A), respectively,

of the RTA Protocol.

(c) Form and Content of an Expert’s Report

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3.1 An expert's report should be addressed to the court and not to the party from whom the

expert has received instructions.

3.2 An expert's report must:

(1) give details of the expert's qualifications;

(2) give details of any literature or other material which has been relied on in making the

report;

(3) contain a statement setting out the substance of all facts and instructions which are

material to the opinions expressed in the report or upon which those opinions are based;

(4) make clear which of the facts stated in the report are within the expert's own knowledge;

(5) say who carried out any examination, measurement, test or experiment which the expert

has used for the report, give the qualifications of that person, and say whether or not the test

or experiment has been carried out under the expert's supervision;

(6) where there is a range of opinion on the matters dealt with in the report –

(a) summarise the range of opinions; and

(b) give reasons for the expert's own opinion;

(7) contain a summary of the conclusions reached;

(8) if the expert is not able to give an opinion without qualification, state the qualification; and

(9) contain a statement that the expert –

(a) understands their duty to the court, and has complied with that duty; and

(b) is aware of the requirements of Part 35, this practice direction and the Guidance for the

Instruction of Experts in Civil Claims 2014.

3.3  An expert's report must be verified by a statement of truth in the following form –

I confirm that I have made clear which facts and matters referred to in this report are within

my own knowledge and which are not. Those that are within my own knowledge I confirm to

be true. The opinions I have expressed represent my true and complete professional

opinions on the matters to which they refer.

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Part 22 deals with statements of truth. Rule 32.14 sets out the consequences of verifying a

document containing a false statement without an honest belief in its truth.)

(d) Information

4 Under rule 35.9 the court may direct a party with access to information, which is not

reasonably available to another party to serve on that other party a document, which records

the information. The document served must include sufficient details of all the facts, tests,

experiments and assumptions which underlie any part of the information to enable the party

on whom it is served to make, or to obtain, a proper interpretation of the information and an

assessment of its significance.

(e) Instructions

5 Cross-examination of experts on the contents of their instructions will not be allowed unless

the court permits it (or unless the party who gave the instructions consents). Before it gives

permission the court must be satisfied that there are reasonable grounds to consider that the

statement in the report of the substance of the instructions is inaccurate or incomplete. If the

court is so satisfied, it will allow the cross-examination where it appears to be in the interests

of justice.

(f) Questions to Experts

6.1 Where a party sends a written question or questions under rule 35.6 direct to an expert, a

copy of the questions must, at the same time, be sent to the other party or parties.

6.2 The party or parties instructing the expert must pay any fees charged by that expert for

answering questions put under rule 35.6. This does not affect any decision of the court as to

the party who is ultimately to bear the expert's fees.

(g) Single joint expert

7 When considering whether to give permission for the parties to rely on expert evidence and

whether that evidence should be from a single joint expert the court will take into account all

the circumstances in particular, whether:

(a) it is proportionate to have separate experts for each party on a particular issue with

reference to –

(i) the amount in dispute;

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(ii) the importance to the parties; and

(iii) the complexity of the issue;

(b) the instruction of a single joint expert is likely to assist the parties and the court to resolve

the issue more speedily and in a more cost-effective way than separately instructed experts;

(c) expert evidence is to be given on the issue of liability, causation or quantum;

(d) the expert evidence falls within a substantially established area of knowledge which is

unlikely to be in dispute or there is likely to be a range of expert opinion;

(e) a party has already instructed an expert on the issue in question and whether or not that

was done in compliance with any practice direction or relevant pre-action protocol;

(f) questions put in accordance with rule 35.6 are likely to remove the need for the other party

to instruct an expert if one party has already instructed an expert;

(g) questions put to a single joint expert may not conclusively deal with all issues that may

require testing prior to trial;

(h) a conference may be required with the legal representatives, experts and other witnesses

which may make instruction of a single joint expert impractical; and

(i) a claim to privilege(GL) makes the instruction of any expert as a single joint expert

inappropriate.

(h) Orders

8 Where an order requires an act to be done by an expert, or otherwise affects an expert, the

party instructing that expert must serve a copy of the order on the expert. The claimant must

serve the order on a single joint expert.

(i) Discussions between experts

9.1 Unless directed by the court discussions between experts are not mandatory. Parties

must consider, with their experts, at an early stage, whether there is likely to be any useful

purpose in holding an experts’ discussion and if so when.

9.2 The purpose of discussions between experts is not for experts to settle cases but to

agree and narrow issues and in particular to identify:

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(i) the extent of the agreement between them;

(ii) the points of and short reasons for any disagreement;

(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and

(iv) any further material issues not raised and the extent to which these issues are agreed.

9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an

agenda is necessary, and if so attempt to agree one that helps the experts to focus on the

issues which need to be discussed. The agenda must not be in the form of leading questions

or hostile in tone.

9.4 Unless ordered by the court, or agreed by all parties, and the experts, neither the parties

nor their legal representatives may attend experts discussions.

9.5 If the legal representatives do attend –

(i) they should not normally intervene in the discussion, except to answer questions put to

them by the experts or to advise on the law; and

(ii) the experts may if they so wish hold part of their discussions in the absence of the legal

representatives.

9.6 A statement must be prepared by the experts dealing with paragraphs 9.2(i) - (iv) above.

Individual copies of the statements must be signed by the experts at the conclusion of the

discussion, or as soon thereafter as practicable, and in any event within 7 days. Copies of

the statements must be provided to the parties no later than 14 days after signing.

9.7 Experts must give their own opinions to assist the court and do not require the authority

of the parties to sign a joint statement.

9.8 If an expert significantly alters an opinion, the joint statement must include a note or

addendum by that expert explaining the change of opinion.

(j) Assessors

10.1 An assessor may be appointed to assist the court under rule 35.15. Not less than 21

days before making any such appointment, the court will notify each party in writing of the

name of the proposed assessor, of the matter in respect of which the assistance of the

assessor will be sought and of the qualifications of the assessor to give that assistance.

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10.2 Where any person has been proposed for appointment as an assessor, any party may

object to that person either personally or in respect of that person's qualification.

10.3 Any such objection must be made in writing and filed with the court within 7 days of

receipt of the notification referred to in paragraph 10.1 and will be taken into account by the

court in deciding whether or not to make the appointment.

10.4 Copies of any report prepared by the assessor will be sent to each of the parties but the

assessor will not give oral evidence or be open to cross-examination or questioning.

(k) Concurrent expert evidence

11.1 At any stage in the proceedings the court may direct that some or all of the evidence of

experts from like disciplines shall be given concurrently. The procedure set out in paragraph

11.4 shall apply in respect of any part of the evidence which is to be given concurrently.

11.2 To the extent that the expert evidence is not to be given concurrently, the court may

direct the evidence to be given in any appropriate manner. This may include a direction for

the experts from like disciplines to give their evidence and be cross-examined on an issue-

by-issue basis, so that each party calls its expert or experts to give evidence in relation to a

particular issue, followed by the other parties calling their expert or experts to give evidence

in relation to that issue (and so on for each of the expert issues which are to be addressed in

this manner).

11.3 The court may set an agenda for the taking of expert evidence concurrently or on an

issue-by-issue basis, or may direct that the parties agree such an agenda subject to the

approval of the court. In either case, the agenda should be based upon the areas of

disagreement identified in the experts' joint statements made pursuant to rule 35.12.

11.4 Where expert evidence is to be given concurrently, then (after the relevant experts have

each taken the oath or affirmed) in relation to each issue on the agenda, and subject to the

judge's discretion to modify the procedure—

(1) the judge will initiate the discussion by asking the experts, in turn, for their views in

relation to the issues on the agenda. Once an expert has expressed a view the judge may

ask questions about it. At one or more appropriate stages when questioning a particular

expert, the judge may invite the other expert to comment or to ask that expert's own

questions of the first expert;

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(2) after the process set out in (1) has been completed for any issue (or all issues), the judge

will invite the parties' representatives to ask questions of the experts. Such questioning

should be directed towards:

(a) testing the correctness of an expert's view;

(b) seeking clarification of an expert's view; or

(c) eliciting evidence on any issue (or on any aspect of an issue) which has been omitted

from consideration during the process set out in (1); and

(3) after the process set out in (2) has been completed in relation to any issue (or all issues),

the judge may summarise the experts' different positions on the issue and ask them to

confirm or correct that summary.

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APPENDIX 3: EXPERT WITNESS INSTITUTE CHECKLIST ON IMPARTIALITY AND INDEPENDENCE

Checklist

Has the expert witness…

Duties

1. Agreed in explicit terms with those instructing them that they are complying with The Ikarian Reefer principles (see below) as well as relevant rules and practice directions?

2. Checked for conflicts of interest using an appropriate system?

3. Complied with their duty to disclose any actual or potential conflicts?

Instructions and Feedback

3 Agreed timing and content of material to be supplied with their instructions?

4 Agreed expectations for feedback on their draft report?

5. Agreed expectations for feedback on the use to which their report was put?

6. Communicated to those instructing them concerns, if any, about the opposing expert’s duty of independence and impartiality?

Transparency

7. Disclosed their method of analysis?

8. Disclosed, where it exists, the industry standard/s and whether they have complied with it?

9. Disclosed at the earliest opportunity all matters which affect the actual or apparent independence or impartiality of their opinion?

The Ikarian Reefer principles:

(1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.

(3) An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinions.

(4) An expert should make it clear when a particular question or issue falls outside his expertise.

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(5) If an expert’s opinion is not properly researched because he considers that insufficient data is available then this must be stated with an indication that the opinion is no more than a provisional one.

(6) If after exchange of reports, an expert witness changes his view on material matters, such change of view should be communicated to the other side without delay and when appropriate to the court.

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