Experts in personal injury cases - a second opinion?

Supportive experts are fundamental to the success of a personal injury claim. So what happens when your client loses confidence in your chosen expert or they can no longer continue their assistance? You are really only left with three choices:

1. Proceed with what you have (and hope for the best);
2. Put further questions to the expert (and hope for the best); or
3. Instruct another expert (and also hope for the best).

Faced with an unfavourable expert, many clients will simply demand a second opinion. After all, you instructed the first expert, why can’t you simply instruct another? Client expectations must be managed carefully. A second opinion can be risky. This article explores the likelihood of being granted permission to rely upon the new expert and the consequences of any applying for such permission. It is hoped that the content will enable you to expel the difficulties of ‘expert shopping’ to your clients and the benefits of pursuing options 1 and 2 instead.

Pursuant to the requirement of CPR 35.1 that expert evidence be restricted to that which is reasonably required to resolve proceedings and CPR 35.4 that any reliance upon an expert requires permission, clients should be advised that the courts have historically taken a restrictive approach to the permitting of expert evidence. Kay v West Midlands Strategic Heath Authority (4^th July 2007, unreported, Birmingham QBD) followed such an approach. Permission for a further expert was declined on the basis that where a single joint expert’s report had been ordered or agreed there was a strong presumption that the evidence would be restricted to that expert and further expert evidence would only be allowed “in the most exceptional circumstances.”

However, other cases have espoused a more promising approach, albeit not without its drawbacks.

Loss of Confidence in Single Joint Experts

There will be less difficulties presented where a client is unhappy with the report or conduct of a single joint expert (SJE).

The Court of Appeal held in Daniels v Walker [2000] 1 WLR 1382 that agreement of an SJE’s report in itself did not prevent a party obtaining further evidence. If reasons for a new expert are more than fanciful, permission ought to be granted for a further report. However, the Court of Appeal threw a slight spanner in the works when commenting that a second report may be considered disproportionate if the claim is modest in value. Although you are already likely to have explained to the client the cost implications to obtaining further evidence in a low value case an end to the matter in any event.

Neuberger J in Cosgrove v Pattinson [2001] CP Rep 68 allowed an appeal granting a new expert despite the issues being modest as he considered the issues to be a matter for expert evidence.  Following this case, any application for permission, should address the following issues in full:

• The nature and number of the issues;
• The reasons for seeking a new expert;
• The value of the case and the nature and importance of the issues;
• The effect of granting permission on the conduct of the trial and any delay it may cause;
• Any other special features; and
• The overall justice to the parties.

In Bulic v Harwoods [2012] EWHC 3657 the claimant had concerns over the expertise and independece of the SJE. Eady J granted permission for further evidence relation to the cause of engine failure on appeal despite it resulting in the trial date being lost. In a promising move, he distinguished Kay on the basis that the evidence was far from peripheral. He considered the first instance Judge to have placed too much emphasis on the ‘exceptionality’ test espoused in Kay given that the expert evidence in this instance was fundamental to the case.

Thus the case law demonstrates a shift away from the restrictive approach to expert evidence taken by courts. It seems that you are likely to be granted permission for further evidence where clients have lost confidence in the SJE provided it is proportionate to the value or importance of the issues. Where you have a particularly technical or difficult issue which is of core importance, you are more likely to be granted permission, even where this will delay proceedings.

Any applications for permission should deal fully with the reasons for wanting a new expert and the basis for such reasons.

Loss of confidence in your own expert

Where there is no SJE the client may believe they have the saving grace that any unfavourable report is privileged and the opposition will be unaware of its contents. Wonderful, you may think. However, client expectations need to be managed carefully as it is not as clear cut as that.

Beck v MOD [2003] EWCA Civ 1043 is a useful starting point when considering whether to apply for permission for a new expert. The defendant was permitted a new expert on the condition that they disclosed the original. Simon Brown LJ noted that it was difficult to imagine any circumstances in which the original report should not be disclosed.

In Vasiliou v Hajideordiou [2005] 1 W.L.R. 2195 a different argument was run that may provide a niche avenue to be exploited by those unwilling to disclose the original report. The order permitted instruction of one expert by each party of a particular specialism. The defendant had instructed an expert by the time of this order subsequently prepared a report which remained undisclosed. However, they later decided to rely on an alternative expert. The Court of Appeal allowed the appeal noting that, as no expert had been named in the order, no permission was needed for the change of expert. As such, there was no condition imposed that the first report be disclosed.

However, the court went on to hold that where an expert has been named and permission is sought for a new expert in order to prevent undesirable expert shopping a condition requiring disclosure of the original report “would usually be imposed.” So you may avoid the usual disclosure pre-requisite if the order is not specific but if the expert is named, it is difficult to envisage a situation where such a condition will not be imposed.

Even reports obtained pre-action protected by litigation privilege will fall to be disclosed. The claimant in Edwards-Tubb v J D Weatherspoon Plc [2011] EWCA Civ 136 nominated three experts to the defendant in line with the pre-action protocol, one of whom went on to prepare a report. A report from an un-nominated expert was then disclosed with the particulars of claim. Given its privileged status, the defendants did not apply for direct disclosure of the nominated expert’s report but rather disclosure as a condition for reliance upon a new expert. The Court of Appeal held that it would normally be proper to allow a second expert but the disclosure condition still applied to pre-action reports as the primary duty of any expert was to the court. It was difficult to see why a report prepared by someone nominated by a party should not be required to disclose such a report. Thus there is no difference in principle between the change of expert pre-issue and post issue.

It may be more difficult to obtain permission for a new expert where your expert has changed their opinion following a meeting with the opposition expert. Stallwood v David [2006] EWHC 2600 actually allowed permission in such circumstances but the judgment seemed to be solely as a result of the behaviour of the first instance judge. Of course, the entire purpose of a meeting of experts is to narrow the issues and such discussion may result in modification or change of opinion. Thus Teare J held that “the mere fact that an expert has changed or modified his opinion following an experts’ meeting cannot by itself be a reason for permitting a party who is disappointed with the change or modification of opinion to adduce evidence from another expert” nor was the substantial nature of the claim sufficient reason. Permission should only be granted where the change of opinion cannot properly or fairly be supported, which Teare J considered was likely to be rare. Taking guidance from Cosgrove he held that the factors to be considered included any special features of the case and the overall justice which entailed examining whether granting or refusing permission would result in a party having an understandable sense of grievance if both the application and trial outcome went against then.

In Stallwood it was considered to be a very special circumstance that the first instance judge had behaved poorly (interrupting counsel and allowing his own experience of back pain to influence his decision) resulting in a likely sense of grievance for the claimant if permission was perfused and the case was lost.

This very special circumstance demonstrates the likely difficulty in obtaining permission for a new expert following change of opinion after an experts’ meeting. However, Singh v CS O’Shea [2009] EWHC 1251 made it clear that Stallwood has not set an overriding principle and the matter remains in the discretion of the judge. Read v Superior Seals Limited [2008] CLY 267 offers some hope. Permission for a new expert was allowed where the expert had changed his opinion on prognosis without giving any reasons after meeting with the defendant expert who considered the claimant to be malingering. Whilst the court recognised it needed to be alive to expert shopping, it considered this to be an ambush on the claimant by her own expert.

The client should also be advised of the risk of having to disclose more than just the report? In BMG v Galliford Try Construction Ltd [2013] EWHC 3183 the claimants were accused of expert shopping when they sought permission for a new expert after their elderly expert wanted to retire from the case some 8 years after his instructions. The defendants sought disclosure of any undisclosed reports and any communications between the expert and the claimant solicitors. Edwards-Stuart J held that the court could impose conditions when granting permission for a new expert beyond disclosure of any final reports, including other reports containing the substance of the expert’s opinion. However, disclosure of attendance notes posed difficulties. They may inaccurately record the expert’s opinion due to interpretation flaws or contain material beyond the expert opinion. Whilst such material could be redacted, it may result in difficulties understanding any expert opinion when it was taken out of context. Furthermore, where the solicitors wanted to check the accuracy of notes before disclosure there might be difficulties if the expert did not co-operate or disagreed with their content. This could lead to the requirement of a witness statement and examination at trial. Edwards-Stuart considered that it was “hard to see how the costs of this exercise would be proportionate, even in the context of the case as substantial as this one.”

As a result of the difficulties entrenched in disclosure of such documentation, those opposing you will have to show a very strong case of expert shopping before disclosure beyond the original report will be ordered.

You may be forgiven for thinking that disclosure of the original report will only be required where there is evidence of expert shopping. However, the recent case of Coyne v Morgan [2016] EWHC B10 (24^th May 2016) debunks such a myth. Grant HHJ considered that the preceding case law established the principle that permission to rely upon a new expert is usually exercised on condition of disclosure of the original report. The discretion to impose such a condition arises irrespective of any suggestion of expert shopping. In this instance, the defendant’s expert had produced a draft report and had met with the claimant’s expert. Grant HHJ held that whilst this was not a strong case of expert shopping, either of these factors indicated that disclosure should be ordered and that indication was strengthened when the factors were combined. However, attendance notes, memoranda or documents pertaining to the conversations between the expert and those instructing him did not need to be disclosed. It was held that strong evidence of expert shopping would be required before disclosure beyond the original report was ordered.

Conclusion

You are likely to be granted permission for reliance upon a new expert where there are good reasons for seeking it and it is proportionate but it clients should be aware that this will not be without its pitfalls. An unfavourable report will be disclosable in all but unimaginable circumstances. When making any application push the point that the accuracy of concerns raised need not be tested at the application hearing, that is a matter for cross-examination at trial.

Although there are enhanced cost risks, obtaining your further report prior to applying for permission will enable you to assess whether it is worth the consequences of seeking to rely upon the further report. Be aware that following Coyne you cannot get around the requirement of disclosure by obtaining an initial draft report. A draft, even a written preliminary view, is likely to be disclosable.

Client expectations may be successfully managed by explaining the above risks and that damage limitation may be achievable more favourably through questions to the existing expert rather than approaching a new one. This is an approach that I would advocate exploring before seeking a new expert given the conditions imposed.

If we can help you in any way, please do get in touch.