Inspire MediLawExpert Witness Training for Medical Professionals

Paul Sankey, Enable Law

Session 1:

Addressing the Legal Issues

(a)Breach of duty

The test of breach of duty in clinical negligence is known as the Bolam test and derives from Bolam v Friern Hospital Management Committee (1957) 2 All ER 118 as modified by Bolitho v City & Hackney HA [1997) 3 WLR 1151.

Bolam v Friern Hospital Management Committee

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 professions 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 negligence 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

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 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

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:

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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 – determining whether there was a breach of duty is a matter for the judge.

(b) Causation

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. 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.

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%. The House of Lords 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.

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 the factor – 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 recovered in full because:

Medical science could not answer the but for question This was an indivisible injury The breach of duty made a material contribution to the injury The material contribution was 'more than negligible'

Addressing Causation

In most cases the correct test is the 'but for' test. This is based on a balance of probability, i.e. whether or not something is (or was) more likely than not. This means

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more than a 50% probability. The courts do not require a higher scientific test or proof beyond reasonable doubt. Experts are often uncomfortable with this because they are used to a higher standard of evidence in academic writing. So if it is 51% likely that something happened (or would have happened), it is treated as though it actually happened (or would have happened).

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.

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 probably 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 (normally) not good enough. If it is actually a 50% case, the Claimant will fail to establish her case – the onus is on her to prove her case on the balance of probabilities.

(c) Condition

When reporting on condition you will probably need to address:o Diagnosiso The patient's experience of her condition – ie what impact it has on her;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 can and can't she 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. Again this may be important if it is appropriate to claim loss of earnings.

o Impact on leisure

Where there is uncertainly, remember that the test is whether something is more likely than not: refer to 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 may be important. So for instance if 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 What the percentage chance of the complication arising is – because if is 20% we will only be able to claim 20% of the cost;

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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)

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.

Addressing the Legal Issues: Medical Advice and Consent

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 rather than 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.

This means that the role of medical evidence in consent cases has changed. 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

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Bolam test to this question is liable to result in the sanctioning of differences in practice 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 what would constitute reasonable treatment options; ando what medical risks are involved in treatment

but not:o whether a particular form of treatment should be discussed with patients; oro whether particular risks should be discussed with patients.

See 2 cases on the point from 2017.

o 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.

o 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, advice 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.

D's expert would not have attached significance to the association and would not have warned of the risk.

C's expert thought a discussion was required because, given the risks, the obstetrician was taking an unusual course in allowing the pregnancy to continue. The implication of his view was that a patient is only entitled to advice where the clinician is not following the normal procedure.

The Court of Appeal rejected both approaches: the mother should have been warned of the risk not because her management was unusual but that there was evidence of a risk of which she was entitled to know.

Your CV

You will 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 your expertise is likely to seem weak compared with your opponent's expert. Note that your CV will be scrutinised at trial. 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.

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);

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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.

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.

Dealing with conflicts of fact

Where there is a dispute as to the facts, it is not for you to make findings of fact although experts commonly do this.

o The judge will not be happy if you usurp his or her function;o You will not properly engage with the opponent's case;o You will look partisan.

Where there is a dispute of facts express separate opinions on each version. Experts should not express a view in favour of one of other disputed version of the facts unless, as a result of their expertise and experience, they consider one set of facts as being improbable or less probable, in which case they should express that view and give reasons for holding it' (Civil Justice Council Guidance for the instruction of Experts.

o ie not about truthfulness of witnesseso stick to where factual scenario put forward by one party is improbably

based on the science

Maintaining Objectivity

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 1)

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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 likely to be partisan in favour of that case. Maintaining objectivity is not easy.

Consider all the evidence before forming an opinion:

o Medical records: are they complete?o Witness statements

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.

Some lessons from recent cases:

o 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.'

The advocateo 'I shared Mr Gibson's concerns about the manner in which Prof W's evidence

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

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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.

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.

Session 2: Working with your lawyer and understanding costs

The relationship with your lawyer: the working relationship

Time limits

o 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.

o 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

o 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.

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Consistency

o Think through your conclusions carefully at the outset and reach an opinion you can properly maintain throughout.

o 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).

o But bear in mind that a late change of mind may Be devastating to a client, who has a longstanding emotional investment

in the claim; Incur very significant cost to your solicitors – who may have done years of

work for which they cannot charge; Incur significant loss for insurers who share the risk of the claim (and for

example may be paying expenses of the claim) Incur loss for the opponent who may also have incurred cost they cannot

recover (and this may be a loss of the public purse); Undermine your own reputation as an expert and your medico-legal

practice.

o NB a late change of view is unlikely to be persuasive: Smith v Tesco PLC and Royal Free London NHS Foundation Trust. Employers' liability cauda equina syndrome case (CES). The issue

was whether the injury at work caused the problems with claimant's back and in particular whether his symptoms post-dated accident.

In the joint statement 2 neurosurgeons agreed that 'the onset of symptoms of severe low back pain and subsequent symptoms of cauda equina with an acute onset and rapid progression after the index event are in keeping with C having suffered a sequestered fragment at the time of the index event'.

After the joint statement the defendant's expert produced a new report basing a theory that that the claimant already had CES on 2 recorded episodes of urinary retention recorded in the records.

The judge was unimpressed: 'The later advancement of this opinion is, in my view, very unsatisfactory and if a live issue should have been considered at a much earlier stage…It defeats the purpose of exchange of expert evidence and joint discussions between experts if experts raise new theories shortly before trial'.

Handling the cliento 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.

o 3 tips: Ensure clients are treated well during consultations;

Take into account what they say: read their witness statements; 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.

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Don't cite irrelevant and prejudicial comments from medical records;

Where saying clients are wrong or they have no case, do so sympathetically.

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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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 expert

Breach of dutyCausation

C 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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Understanding the Language Lawyers Use

Procedural languageo 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.

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.

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.

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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 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.

Expert Evidence - The Civil Procedure Rules (Some Issues)

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.

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.

They must be proportionate (you may need guidance from your solicitor on this).

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).

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They must be put within 28 days (same principle).

They must 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.

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.

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(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.

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(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.

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.

Preparation is absolutely key.

The discussion is without prejudice: it cannot be referred to at trial without agreement of the parties.

Beware of the bully: be prepared to stand your ground on what you think is correct.

There is no obligation on you to try to resolve the case for the parties.

You should record the outcome of the discussion in a joint statement. 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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Copyright Paul Sankey 2018This material is not to be copied or used in whole or in part without the author’s permission.

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APPENDIX 1: 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

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

5. 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.

APPENDIX 2: 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 –

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(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.

(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

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(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.

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.

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

(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

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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 –

(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 –

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

(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.

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

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(a) 35.15

(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 www.judiciary.gov.uk. (Further guidance on experts is

contained in Annex C to the Practice Direction (Pre-Action Conduct)).

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(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

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;

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(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.

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.

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(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;

(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;

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(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:

(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 –

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(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.

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

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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;

(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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