Browse Books

C Compiling the Evidence

This is a chapter from Personal Injury Schedules - Calculating Damages (Bloomsbury Professional), which is an authoritative guide to the assessment of damages and presentation of claims of personal injury. It deals specifically with periodical payments, fatal accidents, loss of earnings (including Ogden VI), lost years, care claims as well as calculating damages in professional negligence actions and claims in the Employment Tribunal. Written by team of eminent authors, the third edition has been fully updated to include analysis of the latest developments and relevant case law occurring in recent years. It includes step-by-step explanations of the drafting of schedules and counter-schedules, and head-by-head analysis of the various claims that can be brought and how to respond to such claims. It contains practical guidance on how to maximise and minimise damages and coverage of the sixth edition of the Ogden Tables.

"This third edition has been comprehensively updated and remains as strong as ever. It continues to merit a place on any personal injury practitioner’s bookshelf" PIBU Law Journal, October 2010

This chapter and the table of contents are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.

Mr Justice Brian Langstaff, Andrew Buchan, William Latimer-Sayer and Rodney Nelson-Jones

C Compiling the Evidence

1  Introduction

[C1]

The vast majority of personal injury claims are framed in negligence or additionally, if they arise out of employment, as a breach of the contractual duty to take reasonable care for the health and safety of employees[1]. The fundamental principle is that the claimant should be restored to the position, so far as is possible by way of financial compensation, that he or she would have been in but for the defendant's wrongdoing[2]. In practice, this means that the claimant will be able to claim for all losses and expenses which reasonably result from his or her injuries. The challenge for the drafter of the schedule of loss is to identify those expenses and losses and to calculate their value. This, of course, requires evidence.

[C2]

The onus is upon the claimant, where he or she asserts that a head of loss is attributable to the defendant's wrongdoing, to prove[3]:

  • the head of loss has actually been or will be incurred; and

  • the extent of the loss.

[C3]

If liability is established but the claimant is unable to prove the extent of his or her loss, he or she will only be entitled to recover nominal damages[4]. Where insufficient evidence is provided to assess the value of a particular head of loss, the court may not award anything for the claimed item[5]. But this principle should not be taken to extremes. As long as the loss is not too small[6] or speculative[7] to be measured, the fact that the assessment of a particular head of loss might be difficult, eg because there are a number of imponderables, should not be a bar to recovery[8]. The court is obliged to do its best to calculate the value of the loss on the available evidence[9]. For example, in Eden v West & Co[10] the trial judge rejected the claimant's claim for loss of earnings because there was 'such a paucity of evidence to make any findings of fact in relation to the claimant's net income'. The Court of Appeal held that the trial judge was not entitled to be as robust as he was in his approach. There was uncontested evidence that the claimant was working at the time of the accident (indeed, the accident occurred in the course of his employment with the defendant). The agreed medical evidence supported the fact that the claimant was unfit to work for a period of six months by reason of the accident. In the event, a global award of £5,000 was substituted against the claim for past loss of earnings in the schedule of loss amounting to £11,500, and a further £1,000 was awarded to cover loss of future earnings.

[C4]

Unless sufficient evidence can be obtained in order to make an accurate calculation of the claimant's loss, the court may be forced to make a broad brush or global assessment instead of using the multiplier/multiplicand method[11]. Understandably, this will usually result in the court applying a relatively cautious or conservative valuation, so that the claimant is not over-compensated. The result is that the claimant will often receive a considerably smaller lump sum than if the traditional multiplier/multiplicand technique had been adopted[12].

2  Quantification of Expenses and Losses

[C5]

A good schedule does not just come 'out of thin air'. It has to be carefully investigated beforehand so that all the items claimed can be proved at trial. When a client first attends for interview, the representative should not only be thinking about proof of liability but also about proof of loss. The claim, after all, is about money. Therefore, the claimant's representative has to investigate quantum, and particularly financial expenses/losses, before issuing proceedings.

[C6]

It is now more important than ever to assess the value of the claim at an early stage because this may well affect funding issues. Should a claim be eligible for public funding, it is necessary to conduct an assessment of the costs/benefit ratio. Alternatively, a legal representative considering taking on a case on a conditional fee basis might think twice if the claim is not worth very much[13].

3  The First Interview

[C7]

The claimant's representative has to be tactful at the first interview. The aim is to ascertain approximately what the claim is worth without building up the client's hopes too much. Experience has shown that most clients, naturally, want to know whether they have a claim and also how much that claim is worth. If they are given certain figures at the first interview, they find it difficult to revise those figures downward in the light of future developments in their case. The representative has to be careful not to raise expectations unnecessarily, yet has an obligation to be accurate in any valuation given.

[C8]

An initial statement should be taken detailing the injuries that the claimant has suffered, how the injuries have impinged upon his or her life, and the expenses and losses that have been incurred to date. All areas of the claimant's life should be considered: work, domestic life, social activities and leisure pursuits. Particular attention should be given to the claimant's likely continuing losses.

[C9]

Efforts should also be made to preserve or photograph any evidence which might be the subject of later dispute, eg broken jewellery or damaged goods.

4  Medical Records

(i) The Need for Medical Records

[C10]

An important initial step in any personal injury claim is to obtain the claimant's medical records. These records will need to be forwarded to any medical expert in order to prepare his or her report[14]. Additionally, the claimant's medical records are needed for a number of purposes, including:

  • Identifying any relevant medical history or problems.

  • Supporting the claimant's version of events regarding the circumstances in which the injury was suffered[15].

  • Indicating the nature and severity of the injuries sustained.

  • Detailing the nature and extent of any past or ongoing treatment[16].

  • Assessing the reasonableness of the care/treatment received[17].

  • Giving an indication of how the injuries have affected the claimant and the extent of any ongoing disability.

  • Indicating whether or not the claimant has made any previous claims for personal injury[18].

  • Satisfying the burden of proof, eg establishing that the loss of future earnings or earning capacity is related to the accident rather than some other cause[19].

(ii) Types of Medical Records

[C11]

There are as many types of medical record as the claimant has had treatment. The most common examples include:

  • Ambulance and paramedic records.

  • GP notes and records.

  • Accident & Emergency records.

  • Hospital In-patient and Outpatient records.

  • Nursing records.

  • Psychiatric records.

  • Counselling/therapy records.

  • Pain clinic notes and records.

  • Physiotherapy records.

  • Notes and records kept by alternative practitioners such as providers of (cranial) osteopathy, chiropractic treatment and acupuncture.

  • Dental records.

  • Records held by opticians.

  • Records held by pharmacists.

  • Records from travel clinics, day care centres and drop-in treatment centres.

  • Rehabilitation records.

  • Records relating to private treatment provided by doctors, surgeons and nurses.

[C12]

It is important to appreciate that the claimant's medical notes and records may include a number of different documents. Where a claimant has extensive medical records, a medical sorting agency can provide invaluable help to separate the different records, arrange them in chronological order and advise upon any records that are missing. For example, when considering a claimant's GP records, one might expect to see:

  • Old handwritten Lloyd George record cards.

  • A typed summary of conditions and complaints.

  • Typed attendance notes.

  • Results of tests, scans and investigations.

  • A list of prescriptions and medication given.

  • A vaccination card.

  • Correspondence (including referral letters to specialists, letters from hospital doctors, private consultants, specialists and communication with the claimant).

It is not uncommon for the claimant's medical records to be incomplete. There may also be a number of relevant documents which are not kept in the claimant's medical records and are not normally disclosed unless specifically requested. For example, in certain cases it may be necessary to see the original X-rays, CT or MRI scans. Further, the claimant may wish to have sight of adverse outcome/incident reports, and any complaints file or reports from independent reviews/investigations. Unless it can be shown that the sole or dominant purpose of the document when it first came into being was for legal advice in actual or contemplated litigation, it will not be protected from disclosure by privilege[20].

(iii) Procedure for Obtaining Medical Records

Entitlement

[C13]

Generally speaking, a claimant has a right to seek access to his or her medical records under the Access to Health Records Act 1990 or the Data Protection Act 1998[21]. The claimant further has a right to be sent copies of any records for a maximum fee (currently £50)[22]. The record holder must supply the claimant with copies within 40 days of receiving the request for disclosure or payment, whichever is later.

Disclosure to the defendant

[C14]

Historically, a defendant to a claim for personal injury was entitled to seek disclosure of the claimant's entire medical records because they were considered relevant and necessary to decide the issues[23]. It should be noted, however, that the implementation of the Human Rights Act 1998 means that Art 8 of the European Convention on Human Rights must now be taken into account. In MS v Sweden[24] the ECtHR held that the applicant's medical records and medical history were part of her private life. However, under Art 8(2) the disclosure was justified because it was held to be in accordance with law, was founded on a legitimate aim, and was necessary in a democratic society. The position may well be different where the other party is not a public authority and therefore cannot rely upon Art 8(2). More recently, in Bennett v Compass Group UK[25], the Court of Appeal held that:

  • The combined effect of CPR, rr 31.3, 31.6 and 31.8 is that the defendant has a right to inspect the claimant's medical records.

  • In the ordinary course of events, it will be for the claimant (and/or his or her advisers) to obtain a copy of the medical records, and for the defendant to request inspection of the same, rather than the defendant being granted authority to obtain the records directly from the relevant bodies[26].

  • In exceptional cases, it may be necessary to apply to the court for an order that the defendant be given authority to obtain copies of the claimant's medical records directly, in default of which the claim be stayed, but care should be taken to ensure that the terms of any such order are clearly and carefully defined in order to protect the claimant's rights, whether under the European Convention on Human Rights or otherwise[27].

5  Collating the Proof

(i) General

[C15]

The claimant's representative should have in mind a number of heads of damage. The two principal heads of damage are likely to be loss of earnings and costs in respect of the need for services (eg care, medical treatment and DIY). However, the client may already have incurred a number of expenses on a daily basis for which there are no receipts.

[C16]

Clients should be told that, unless receipts are kept, the expenditure they incur may well not be recoverable from the defendants. Thus, by failing to keep receipts they are doing the defendants a favour! The simplest method for a client to collect and compile a list of receipts is to draw columns on an A4 envelope as follows:

Date

Receipts

Comments (Item of expenditure)

Cost

    
    
    
    
    

[C17]

The receipts can be conveniently kept in the envelope. If the client does not have a receipt, he or she should be asked to note down the item of expenditure without ticking the receipts column. The fact that the entry appears in the list in this way, provided it is reasonable and logically incurred, is more likely to persuade the court that the expense was incurred. The client should be given an envelope set out in the correct manner to take away with him or her.

[C18]

Other documents may also assist in proving loss. Thus, bank statements or credit card statements also show what money was spent on. Again, provided that this can be reasonably argued as having been necessarily incurred as a result of the injuries, the court is likely to be persuaded that it is recoverable.

[C19]

In more serious injury cases, the client or his or her family should be urged to keep a diary of relevant aspects of their life. They should be asked to make a note of all the things that happen which would not have happened had they not been injured.

(ii) Questionnaire

[C20]

The client should be given a questionnaire of the items of expenditure that are normally incurred in his or her type of case. He or she should be told to err on the side of caution. Thus, if there is any uncertainty regarding whether an item of expenditure is recoverable, it should be included in the list so that the lawyer can decide whether it is recoverable.

[C21]

Two examples of such questionnaires are set out in Chapter Q at paras [Q2] and [Q3]. It is suggested that such a questionnaire should be provided at the end of the first interview, together with a request for sight of all relevant documents. The completed questionnaire and documents may then help identify some of the likely heads of damage at an early stage.

(iii) Documentary Evidence

The more the better

[C22]

The more documentary evidence there is to support the claims made in respect of past and future losses and expenses, the more likely the claims are to succeed. Often, claims under certain heads of loss fail due to insufficient proof[28]. Where expenses have been incurred but there is no documentary evidence to support the sums claimed, the claimant is at the mercy of the court as to whether or not any damages will be recovered and, if so, the extent of the same[29].

Employment details

[C23]

If the claimant was employed at the time of the accident, it may be that the claimant has kept copies of his or her payslips. If not, salary details should be obtained from the claimant's employer. It is usual to ask for details regarding the claimant's gross and net pay figures for the 13 weeks prior to the accident; but if, for whatever reason, this period was unlikely to be representative of the claimant's lost salary, a longer period should be taken (eg if bonuses were paid annually and the last 13 weeks do not record this). Alternatively, where the claimant's income is seasonal, it might be worth analysing the claimant's salary over the same period in the preceding years before the accident. The following information may also be requested from the claimant's employer:

  • Any changes in rates of pay or hours of work since the accident.

  • The claimant's P60 and/or P45.

  • Any additional overtime payments (if these are not detailed in the salary information).

  • Any additional bonus payments (if these are not detailed in the salary information).

  • Any additional profit-related pay (if not detailed in the salary information).

  • Any additional holiday pay (if not detailed in the salary information).

  • Promotional opportunities.

  • Pension details.

  • The claimant's personnel file.

  • The claimant's medical file.

  • A copy of the claimant's contract of employment.

  • Confirmation regarding whether or not the claimant is obliged to repay any sick pay payments as a result of a third party's negligence.

[C24]

If the claim is brought against the claimant's employer or former employer, it is prudent to request loss of earnings details in the initial letter of claim[30].

[C25]

If the claimant was self-employed at the time of the accident, the claimant should be asked to produce copies of his or her business records, business accounts and tax returns for the relevant period of incapacity, together with material which will enable a comparison with previous performance. This will usually involve an examination of any annual accounts, copies of tax returns etc, and in most cases may need the claimant to ask his or her tax adviser to compile up-to-date figures as a matter of urgency.

[C26]

If the claimant was unemployed immediately prior to the accident, but was studying/training to start a new job or was just about to start a new job at the time of the accident, the claim for loss of earnings will be a claim for a lost chance[31] or, if the injury is longer term, for disability on the labour market. This latter claim will, in such a case, closely resemble a claim for continuing loss of earnings. As much information as possible should be gleaned in order to support the claimant's chance of succeeding in his or her chosen occupation. The claimant's training, qualifications, knowledge and experience should be ascertained in relation to the job. Details should be obtained regarding salary, promotional opportunities and pension entitlement. Where there was a concrete job offer, documentary evidence should be obtained, if possible, such as the contract of employment, in order to see whether or not the claimant would have been subject to a probationary period or whether any unusual terms would have applied. Evidence may also be sought from the claimant's previous employers regarding the claimant's skills, abilities and general employability, and from the prospective employers regarding their opinion of the claimant's suitability for the position.

[C27]

One of the most useful sources of evidence in order to prove a loss of earnings claim (particularly concerning rare or unusual jobs, where statistical information is thin) is to obtain evidence from a comparator. Where the claimant loses a job which someone else is now doing or there are comparable positions in other companies, the court will be greatly assisted by evidence from a comparator stating the level of salary he or she receives, including all benefits and perks, as well as any increases or bonuses which have been received prior to the trial. Alternatively, such evidence may be obtained from a human relations employee or an employment consultant[32]. Care must be taken to ensure a comparator is materially in the same position as the claimant.

[C28]

If the claimant had been unemployed for a considerable period before the accident, consideration should be given as to whether or not a claim for loss of earnings can be sustained at all. However, it is suggested that almost everyone has an earning capacity, and very few, if any, people are unemployed throughout a lifetime. Accordingly, the effect of lengthy periods of unemployment/job search prior to the accident (or, for that matter, period of time in prison, in rehabilitation or such like) is to reduce any total award, perhaps by reducing the multiplier for any proposed future loss claim under this head.

HM Revenue and Customs

[C29]

If there is any doubt as regards the claimant's employment history or the claimant has difficulty remembering the dates and periods of his or her previous employment, it is possible to request an employment history for the claimant. Since 1 October 2003, HMRC will supply employment histories free of charge for any criminal injury or personal injury claim (including any industrial injury, claim for medical negligence, serious road traffic accident or claim against the tobacco industry).

Receipts, invoices, valuations and estimates

[C30]

The claimant should be asked to bring in or copy his or her receipts/invoices/valuations and estimates every so often, so that they may be put on file and disclosed to the other side. The claimant should be reminded that any receipts/invoices/valuations and/or estimates for services should only include the labour costs involved.

[C31]

Receipts and invoices are commonly obtained for the following losses/expenses:

  • Insurance policy excesses.

  • Damaged vehicles.

  • Damaged items of clothing and possessions.

  • Replacement items of clothing and possessions.

  • Repair costs for damaged clothing and possessions.

  • Past medical treatment including physiotherapy, osteopathy, chiropractic treatment and acupuncture.

  • Past medical tests and investigations including X-rays, MRI scans and CT scans.

  • Past medication and prescription costs.

  • Past aids and equipment.

  • Past travel costs.

  • Past DIY, decorating and gardening costs.

  • Past care costs.

  • Past domestic assistance costs.

  • Past additional expenditure on such items as special diets, additional heating costs and higher phone bills.

Valuations and estimates are commonly required regarding:

  • Pre-accident value of goods and/or current salvage value.

  • Future vehicle repairs (and any anticipated storage costs).

  • Hire of replacement vehicles and possessions (particularly profit-earning chattels).

  • Future repairs to damaged goods.

  • Proposed medical tests and investigations.

  • Proposed medical treatment and/or surgery.

  • Future care costs.

  • Future domestic assistance.

  • Future DIY, decorating and gardening.

  • House/flat valuations.

  • Future aids and equipment.

  • Proposed home improvements.

Utility bills

[C32]

In cases where the claimant is incapacitated by reason of the accident and therefore spends more time at home, it is possible to claim for the increased heating, lighting and telephone bills that are likely to result. In order to support such a claim, it is sensible to obtain copy bills in the months preceding the accident to calculate the increase in bills caused by the accident (ignoring any increase due to general rises in the cost of utility bills which would have occurred in any event).

[C33]

Further, many claimants quickly fall into debt if they are unable to work following an accident. They should be asked to keep details in relation to any of the following:

  • Overdraft interest.

  • Credit card interest.

  • Loan interest.

  • Interest on arrears of mortgage or rent.

  • Interest on debts to creditors or suppliers.

  • Court and solicitor fees arising out of third party debt recovery.

Bank and credit card statements

[C34]

Bank and credit card statements may provide a useful alternative to receipts and invoices. A bank or credit card statement will usually show the date and place where a particular item was bought and its cost (including any foreign exchange rate). Unfortunately, however, details of the item bought are often not included, and witness evidence will usually be required to plug the gap.

[C35]

If the claimant's wages were paid directly into a bank account, the statements relating to that bank account will also be a useful way of proving lost earnings. This is particularly relevant in cases where the claimant was paid 'cash in hand' but held a business account into which most of the monies were paid.

AA, BNA and other associations

[C36]

Information to assist with the calculation of particular heads of loss is available from a wide range of associations, bodies, charities and websites. 'Facts & Figures' published annually by the Professional Negligence Bar Association provides a handy compilation of useful tables and materials. Alternatively, the reader may wish to contact some of the sources directly:

  • Automobile Association, Technical Services, who are able to provide information on motoring costs (www.theaa.com).

  • Association of Personal Injury Lawyers (APIL), 33 Pilcher Gate, Nottingham NG1 1QE, who hold an experts database and are able to offer assistance with particular personal injury claims (www.apil.org.uk).

  • Association for Victims of Medical Accidents (AvMA), 44 High Street, Croydon, Surrey CR0 1YB (www.avma.org.uk), who also keep a database of recommended experts and are able to offer assistance with particular clinical negligence claims.

  • Personal Injury Bar Association (www.piba.org.uk).

  • Average earnings and other statistics: the Office for National Statistics (www.statistics.gov.uk).

  • Back Care, 16 Elmtree Road, Teddington, Middlesex TW11 8ST, who are able to provide information regarding back claims.

  • British Nursing Association (BNA), Care Assessment Services, the Colonnades, Beaconsfield Close, Hatfield, Herts AL10 8YD, who are able to provide national rates for the provision of nursing care.

  • Company information: www.hemscott.net.

  • Equality and Human Rights Commission (www.equalityhumanrights.com).

  • Financial information is available from: www.ft.com; www.uk-invest.com; and www.bloomberg.com.

  • Headway National Head Injuries Association, Church Lane, Heavitree, Exeter who are able to provide information regarding the care and treatment of head injuries (www.headway.org.uk).

  • Queen Elizabeth Foundation for Disabled People, Leatherhead, Surrey, who are able to provide information regarding rehabilitation, mobility centres, driver training etc (www.qefd.org).

  • Spinal Injuries Association, 76 Saint James Lane, London N10 3DF, who are able to provide information regarding the care and treatment of spinal injuries (www.spinal.co.uk).

CRU

[C37]

A statement of the recoupable benefits paid to the claimant can be obtained from the Compensation Recovery Unit ('CRU') at the Department for Work and Pensions, Durham House, Washington, Tyne & Wear NE38 7SF.

6  Statistical and Actuarial Evidence

[C38]

Following the House of Lords' decision in Wells v Wells[33], there is a growing trend for the courts to admit and accept statistical and actuarial data. The same can be extremely useful where there is a paucity of other direct evidence. For example, in Stefanovic v Carter[34] the claimant was a trainee accountant who was injured in a car accident. At trial, the claimant relied upon the national average earnings statistics in order to support his claim for loss of earnings, which was accepted by the judge, who adopted the traditional multiplier/multiplicand method of assessment. The defendant appealed on the basis that there was insufficient evidence upon which the trial judge could have awarded damages on a multiplier/multiplicand basis. The Court of Appeal rejected this argument, Hale LJ (as she then was) stating[35]:

'The judge was indeed hampered by having no evidence to support the claimant's suggestion that his earnings would have risen to £35,000 per annum. But what he did have was the Professional Negligence Bar Association's survey of facts and figures, which we have been handed. (It is good to see the Professional Negligence Bar taking the lead of the Family Bar in producing sensible tables of useful documentation to take along to the Kingston upon Hull County Court.) Included in our bundle were the rates for full-time females on adult rates, which were clearly quite inappropriate, being much lower than the rates for adult males. The rates for adult males' average earnings in business and financial professions were some £675 gross per week (if we did not include those who were absent) and £624 per week for chartered and certified accountants. If one goes on and looks at the earnings for builders and building contractors, the comparable figure was £315 per week.

One is therefore driven to the conclusion that the judge was entitled to take the multiplier/multiplicand approach because there was clear evidence of a loss of earnings and a continuing loss of earnings. It was speculative and difficult for him to do, but, on the most objective basis that was available to him, the difference between the sort of earnings which the claimant could have looked forward to as a successful and ambitious accountant and those that he could now look forward to as a back-room boy in a small building firm was considerable. Simple arithmetic indicates that it would be difficult indeed to reach the conclusion that the £10,000 per annum net which he took over a lifetime's earnings was so out of line as to be capable of challenge in this court.'

[C39]

National average earnings statistics have since been used as a starting point (if not the end point) for the assessment of damages for loss of earnings in a number of further cases, especially when considering the career potential of young claimants who were still at school or college at the time of the accident[36]. The data is now easily available online from the Office for National Statistics (ONS) which produces the Annual Survey of Hours and Earnings (see www.statistics.gov.uk). However, when considering the applicability of this data to the facts of any particular case, it is important to remember that the figures are statistical averages. Therefore, there is no good reason to reduce the figure because it was unrealistic to have expected the claimant to have reached management level (at the higher end of the average) if it was equally unrealistic to have expected the claimant to have settled for a very menial job involving little responsibility (at the lower end of the average)[37]. But there are other ways in which parties may seek to distinguish the claimant from the average. First and foremost, there are the inherent qualities, character and upbringing of the claimant. For example, in M (a child) v Leeds Health Authority[38] the claimant suffered a catastrophic injury at the age of two. In the circumstances, Sullivan J held that it was not sensible to postulate any particular career path regarding the claimant's earning potential. He therefore took the average female net earnings figure of £14,500 for non-manual work as a starting point. However, account was taken of the claimant's father, who was found to be 'a cut above average', and the multiplicand was increased to £16,000. Secondly, there is the geographical region in which the claimant lives. The Annual Survey of Hours and Earnings provides data which can be disaggregated into place of work by local authority or borough of residence or by place of work. Thought should also be given to whether or not the statistical data are entirely reliable for predicting future earnings of a claimant. For instance, all females in employment have a contractual right under the Equal Pay Act 1970 to pay which is equal to that of men doing the same job, work rated as equivalent or work of equal value. Although female earnings are historically lower than male average earnings in many jobs, the law requires an equalisation and gives women a right to it. Therefore, if earnings extend beyond the immediate future, arguably the appropriate data is the average earnings data for male and females[39].

7  Expert Evidence

(i) The Need for Expert Evidence

[C40]

Of course, at least some medical evidence is required in all personal injury/clinical negligence cases of any significance[40]. In the larger cases, it is likely that a number of different experts will be required in order to calculate the value of particular heads of loss. Common examples of the types of experts used to assist with the valuation of certain heads of loss include:

  • Medical experts – expert medical opinion will often be required regarding attributability of the injury to the accident alleged; condition and prognosis of the claimant's injuries; the need for any further treatment and/or surgery; the need for care; life expectancy; the level of disability generally; the ability to continue with current occupation; disadvantage (if any) on the open labour market; and risk of developing future problems such as arthritis and epilepsy.

  • Quasi-medical expert – these include physiotherapists, chiropractors, osteopaths, acupuncture therapists and speech/language therapists. They are usually instructed to report upon specific treatment needs and the cost of such treatment. They may also be used to report upon the effectiveness of current treatment and to review the need for further treatment.

  • Care experts – care experts are widely used to calculate a claimant's gratuitous and professional care needs, both past and present. They are usually either qualified nurses or occupational therapists. These experts may also assist with evaluating the cost of DIY, decorating and gardening expenses.

  • Aids and equipment experts (usually occupational therapists) – where a claimant is significantly disabled, evidence might be required regarding items necessary in order for the claimant to lead a more 'normal' life. The aids and equipment needed vary from case to case and are usually injury specific. For example, in a back injury the following items might be indicated: an orthopaedic pillow and mattress, a back roll support and a perching stool. In more serious cases, details of wheelchairs, hoists, special bathing or showering equipment and other home and mobility aids will be needed.

  • Case managers – in catastrophic injury cases, a case manager is often needed to organise and co-ordinate the efforts of the claimant's carers. The case manager is responsible for advising on the care needs of the claimant, ensuring that an appropriate care plan is adopted, and keeping the situation under review. A clinical case manager owes his or her duties to the claimant alone (on unilateral instructions) and is a witness of fact rather than being constrained by any expert duties[41]. The case manager can attend conferences without privilege being waived in the discussions. However, in certain (more serious) cases, there might be justification for claiming the costs of two case managers: one acting case manager, and one reviewing case manager who reports to the court. Adopting this approach permits an independent and objective assessment to be made of the ongoing care regime.

  • Information technology experts – in catastrophic injury cases, such experts are sometimes useful to recommend particular equipment or making certain improvements to the claimant's home in order to increase the claimant's quality of life and independence.

  • Employment consultants – these experts help to quantify the claim for future loss of earnings or disadvantage on the labour market in difficult cases. Care must be taken, however, not to be seduced into using such an expert where the case is relatively simple – eg someone on a fixed salary scale or in a local authority service – where the courts will expect the lawyers to be able to provide calculations themselves[42].

  • Accountants and financial experts – these experts are often used to calculate loss of earnings in complex cases or to assess future pension loss.

  • Mobility experts – such experts are used to assist with assessing the particular transport needs of the claimant. Usually, occupational therapists, or nursing care advisers, will in practice be able to cover this aspect of a claim, and the need for it will be obvious from the medical reports.

  • Housing/accommodation experts (usually architects or surveyors) – the claimant's home may no longer offer appropriate accommodation following injury. An accommodation expert will be able to assess the particular housing needs of the claimant and, in particular, whether their present accommodation can be modified in order to suit the claimant's needs, or alternatively whether new accommodation must be found.

  • Education experts – in cases where the claimant will require special schooling or training, these experts are able to identify the claimant's specific needs and to calculate the value of the claim in accordance with the facilities available in the local area.

  • Mechanical or engineering experts – these are often used to provide an estimate of the repair costs for a damaged vehicle.

  • Statisticians or life expectancy experts – where the claimant has suffered an injury which may affect his or her life expectancy, it may be that an expert can examine a statistical database and prepare a report upon the claimant's predicted lifespan[43].

[C41]

Obviously, it should be checked that any expert who is instructed is competent to comment upon the issues involved. This particularly applies in cases where the claimant is a child or patient. Whilst an expert might be excellent at assessing competent adults, they might have little or no experience dealing with minors or those who lack capacity.

(ii) General Principles under the CPR

[C42]

Under the CPR, the courts have become increasingly wary regarding the use of experts[44]. This has probably been most obvious in personal injury work, where traditionally numerous 'pet' experts were employed by each side in order to support their case.

[C43]

Expert evidence has now been restricted by the court to that which is 'reasonably required to resolve the proceedings'[45]. No permission is required to instruct an expert[46]. But no party may rely upon the written or oral evidence of any expert without the express permission of the court[47]. This rule does not apply to adducing factual witness evidence from treating experts such as case managers, doctors and therapists[48]. However, in terms of seeking permission to rely upon the expert opinion of an independent expert, unfortunately to date there has been relatively little guidance regarding when such permission should be granted, and therefore judges have been left with a very wide discretion. That said, it is clear that, when considering the question of expert evidence, the court must make a judgment on at least three matters[49]:

  • Cogency – how cogent the proposed expert evidence will be.

  • Usefulness – how helpful the proposed expert evidence will be in resolving any of the issues in dispute.

  • Proportionality – how much it will cost and the relationship of that cost to the sums at stake.

[C44]

The difficulty for the claimant's representative is to decide how best to approach the question of expert evidence in order to minimise the chance that permission to rely upon the chosen evidence will be refused (which may, in turn, prevent recovery of the costs involved). Unfortunately, for the large part, decisions regarding expert evidence will have to be made at an early stage in the proceedings when little detail is known about the claim. It is submitted that the main questions to consider when looking at the instruction of any particular expert in a case are as follows:

  • Why is the expert evidence needed?

  • What will the expert be able to provide that cannot be gained from alternative sources or other methods of calculation?

  • Is the instruction of the expert likely to make a significant difference to the outcome of the case?

  • Can the claim be properly quantified without the assistance of such an expert?

  • Are the costs of instructing the expert proportionate to the value of the claim?

[C45]

It should be noted that, once permission has been granted for expert evidence, there should be parity between the parties. Thus, if the defendant is allowed to call evidence from two consultants whose clinical judgment is being impugned, the claimant should be permitted to call two experts in the same field[50]. Likewise, the court may impose limits on the fees and expenses of expert evidence[51] and prevent the parties from calling evidence which exceeds that limit[52].

(iii) The Initial Medical Report

[C46]

In all but the slightest cases of personal injury, it will be necessary to instruct a medical practitioner to prepare a report in respect of the claimant's injuries[53]. Indeed, by virtue of para 4.3 of the PD to CPR, Pt 16, if the claimant is relying upon the evidence of a medical practitioner, the claimant must attach to or serve with his or her particulars of claim 'a report from a medical practitioner about the personal injuries which he or she alleges in the claim'. There is no specific guidance as to what should be contained in this report. The British Medical Association publishes a list of the points which should normally appear in a medical report. In broad terms, the report should cover the circumstances in which the injuries were sustained, the nature and severity of the injuries, the effect of the injuries upon the claimant, the treatment received, any relevant pre-accident information, and provide a prognosis for the future. Additionally, the report should attribute the injuries to some act on the part of the defendant, which is said in the claim to be in breach of a duty to the claimant[54]. In personal injury cases, in accordance with the CPR, the report served with the particulars of claim is likely to be from a jointly selected, if not jointly instructed, expert[55]. In clinical negligence cases, the expert is likely to be unilaterally instructed by the claimant[56] and may just deal with condition and prognosis, leaving the breach of duty and/or causation reports (which might be prepared by different experts) to be mutually exchanged at a later date[57]. Where limitation is a problem, it may be necessary to serve a short report from the claimant's GP or treating doctor and thereafter seek the court's permission to rely upon another report prepared by a doctor specialising in the relevant field[58]. It should be noted that, where a party has unilaterally instructed an expert to provide a provisional or preliminary report (eg to be discussed at a conference) before a final report is prepared, the earlier report(s) will not be disclosable to the other parties[59].

(iv) Instructions to the Expert

[C47]

A model letter of instruction to a medical expert is annexed to the Personal Injury Pre-Action Protocol. It should be noted that any information (eg a draft witness statement or another expert's report) supplied to an expert for the purposes of obtaining advice should be considered as part of the material instructions, and should therefore be protected from disclosure under CPR, r 35.10(4)[60]. The exception to this is where there are grounds for believing that the expert's statement of instructions was 'inaccurate or incomplete'[61]. The expert should be reminded of his or her duty to the court and the requirements of CPR, Pt 35[62]. Although there is no assumption that a person employed by a party to the litigation could not give expert evidence[63], in the exercise of its discretion, the court may prevent a person giving expert evidence because of their inability to carry out the role of an independent expert, given their close relationship with one of the parties[64].

(v) Problems with Particular Experts

[C48]

In the experience of the authors, judges now have to be persuaded by cogent arguments to permit the use of certain experts, particularly in cases which have been allocated to the fast track. However, it is to be noted that, if an expert has been instructed prior to proceedings and that expert's report is already to hand, it is often easier to convince a judge about the usefulness of that evidence. Conversely, where the expert in question has not yet been instructed, the court will often look much more closely at the need for and cost of obtaining such evidence, and thus is more likely to conclude that permission is not warranted. Gaining permission to rely upon the following experts has probably created the most difficulty, and we offer some specific guidance regarding their instruction.

Care experts

[C49]

It is often suggested by judges that the claimant's representatives should be able to estimate the amount of care required by the claimant and apply the applicable professional rates (subject to a probable discount if the care was provided gratuitously). Such an approach is certainly both justified and proportionate in a straightforward case involving a limited care claim, eg following a simple broken leg. However, the instruction of a care expert would tend to be indicated in the following situations:

  • Where there has been a significant amount of past care provided over an extended period involving numerous different applicable hourly rates.

  • Where there is an ongoing need for care which requires assessing and costing for the future.

  • Where the claimant has suffered an unusual type of injury and his or her care needs are not readily identifiable.

[C50]

In a small claim, it might be appropriate for a care expert to provide a brief report in summary form first before deciding whether or not to seek a full report. In a small to medium-size claim, it might be appropriate for the care expert, assuming that the expert is suitably qualified, to provide a joint opinion in relation to care needs as well as the need for aids and equipment. Some care experts will even address the claimant's needs regarding domestic assistance, DIY, decorating and gardening within one and the same report. This approach keeps the costs down, whilst making the judge's job easier by having everything in one document.

[C51]

For catastrophic injury claims, the same approach is not generally recommended. In such cases, there is more likely to be dispute regarding the individual heads of loss due to the sums of money involved, and small differences of emphasis between experts may result in very large differences in cash terms. It is, therefore, prudent to have separate experts providing detailed reports concerning their own specialised area.

Employment consultants

[C52]

The use of these experts has particularly faced challenge under the CPR. Their evidence is often criticised as speculative and unnecessary[65]. However, it is submitted that, in some cases, their evidence can be an invaluable aid to assessing quantum.

[C53]

There are no hard and fast rules regarding when an employment consultant should be instructed in a particular case. Such evidence is usually most helpful in the following scenarios:

  • Where the claimant is unable to continue in his or her chosen occupation by reason of the injuries, but has an undefined residual earning capacity which might involve re-training or re-qualifying.

  • The claimant is a minor and it is necessary to predict what the claimant's earning capacity would have been but for his or her injuries.

  • The claimant had an unusual or unique job for which there are no average earnings statistics.

  • The claimant had a professional job with a set hierarchy and pay structure, eg an army officer, a civil servant or a teacher, but where there were clear opportunities for moving up the ladder, yet there is limited information to show what level the claimant would have eventually attained and how long it would have taken to get there. It might also be beneficial to find a comparator who started at the same level as the claimant.

  • The claimant had a job which provided remuneration far in excess of the national average for that type of work. For example, a chef working in a prestigious London restaurant might have earnings way above the average earnings for cooks/chefs suggested by the Annual Survey of Hours and Earnings. Another example is that of a successful fashion photographer, who is likely to earn far more than the average wedding photographer.

  • There is a real risk that the claimant will lose their job in the foreseeable future by reason of their injuries and it is unclear what alternative work they would be able to do in the local area and how long it would take them to find such work.

  • Where there is reason to think that the available national statistics are too compressed in the categories they offer to allow for an accurate comparison. An example might be architects and many manual building trades which are classed generally under broad headings which disguise a great variability of earnings.

[C54]

When considering whether or not to instruct an employment consultant, the following checklist may provide a useful guide. The more questions to which the answer is 'Yes', the less likely it is that the instruction of an employment consultant is indicated.

  • Are you able to predict:

    • (i) loss of earnings up to time of trial; and

    • (ii) future career earnings (with promotion, advancement and redundancy)?

  • Are you able to comment upon the possible effects of:

    • (i) the local labour market; and

    • (ii) the vicissitudes of the relevant industrial sector?

  • Does the claimant's disability now exclude him or her from the labour market?

  • Are you able to assess the claimant's:

    • (i) job search period;

    • (ii) training options; and

    • (iii) future earnings?

  • Are you sure that other factors such as planned changes in sheltered employment provision etc are not going to affect the claimant's future employability?

[C55]

In smaller or more straightforward cases, employment consultants can be asked just to provide or endorse some statistical data in order to help calculate the loss of earnings claim. In these cases, the relevant material might be in the public domain but it would take the layman a disproportionate amount of time to find the sources. The employment consultant thus takes on the role of adviser and does not provide a full report or give evidence to the court. In an advisory capacity, the employment consultant may also offer assistance with a number of other matters, including identification of the central issues in a case, consideration of any Part 36 offers, and seeking to persuade the court why a full employment assessment might be necessary.

Forensic accountants

[C56]

Forensic accountants have often been involved in the past to help calculate loss of earnings in difficult cases and to assist with quantifying pension loss.

[C57]

As regards loss of earnings, the assistance of a forensic accountant is generally indicated in the following situations:

  • Where a self-employed claimant does not have a steady pattern of earnings, and projection of future loss is not straightforward.

  • Where the claimant was a partner in a multi-party business and it is necessary to evaluate his lost share of the profits.

  • Where the claimant was a director or owner of a company whose profitability is significantly affected by reason of the claimant's injuries.

[C58]

As regards pension loss, this is no longer considered the preserve of accountants. Unless the terms of the pension are particularly complicated, courts will usually require the claimant's representatives to assess this loss themselves. See further the Appendices at [Q20]–[Q25] regarding what information is needed to calculate this loss.

(vi) Refusal of the Claimant to Undergo Examination

[C59]

A general stay of proceedings may be granted in the following situations:

  • Where the claimant refuses to disclose his or her medical records[66].

  • Where the claimant refuses to submit to a medical examination or test[67].

  • Where the claimant fails to submit to a functional evaluation test[68].

  • Where the claimant refuses to submit for interview with the defendant's employment expert[69].

[C60]

In Laycock v Lagoe[70] the Court of Appeal applied a two-stage test. First, it should be asked whether or not the interests of justice require the test which the defendant proposes. If the answer to this question is no, the stay will be refused. However, if the test is in the interests of justice, the court must consider the second question, namely whether or not the claimant has put forward a substantial reason (ie one which is not imaginary or illusory) as to why the test should not be undertaken. Account should be taken of the proposed benefit of the test to the litigation process, on the one hand, and the weight of the objection of the declining party, on the other. On the facts of this case, although the proposed MRI scan was held to be in the interests of justice, the claimant's reasons for refusing the test were held to be substantial and therefore the stay was refused. The claimant's concerns included the possibility that the scan might trigger a further psychotic episode, the possibility that there might be an adverse reaction to the chemical dye used, and the possibility of the claimant requiring sedation or an anaesthetic.

[C61]

It should be noted that the reason why a stay has to be applied for in the above cases is that the court has no power to require the claimant to submit to a medical examination or test[71]. However, the power to grant a stay is not necessarily of general applicability and, for example, the defendant may not be entitled to a stay of proceedings where the claimant refuses to permit the defendant's solicitor to view his or her injuries or scarring[72]. Further, any stay of proceedings must be proportionate to the claimant's refusal. Therefore, if, for example, the claimant refuses an examination by a psychiatrist, this does not automatically entitle the defendant to a stay of the whole proceedings. It may well be that other aspects of the claimant's claim can still proceed, such as the assessment of pain, suffering and loss of amenity for physical injuries and any past expenses/losses not dependent upon the existence of a psychiatric injury[73].

(vii) The Single Joint Expert

[C62]

The assumption under the CPR[74] is that, whenever possible, expert evidence will be given by a single joint expert[75]. However, it is important to distinguish between the following types of 'joint' expert:

  • The 'agreed' or 'jointly selected' expert under the Personal Injury Pre-action Protocol (PIPAP).

  • The single 'jointly instructed' expert.

  • The court-appointed joint expert.

The agreed or jointly selected expert under the PIPAP

[C63]

The PIPAP urges the joint selection of experts by the parties[76]. A party is to give notification to the other parties before any expert is instructed, by supplying a list of one or more suitable experts[77]. The other parties are then given 14 days to object to the list of named experts[78]. However, the Court of Appeal has confirmed that an 'agreed' or 'jointly selected' expert under the PIPAP is different from a 'jointly instructed' expert. In Carlson v Townsend[79], the claimant's solicitors refused to disclose a report prepared by an expert they had instructed pursuant to the defendant's agreement under the PIPAP. It was held that it was not possible to override the claimant's privilege in the report and, therefore, the claimant could lawfully withhold its disclosure. The difficulty in this case was that the claimant served a report from a second, non-agreed expert and the defendant realised straightaway that the nominated expert's report must have been unsatisfactory. A way round this problem might be for the claimant to list a number of suggested experts. Assuming that objection is not taken to all of these experts, if an unfavourable report is obtained from one of the nominated experts, a further report may be obtained from one of the other agreed experts on the list without the defendant ever finding out[80].

The single jointly instructed expert

[C64]

The single jointly instructed expert is an expert whom the parties agree to instruct on a joint basis, usually after proceedings have begun. The expert's fee is split between the parties, and each party is entitled to receive a copy of the expert's report. However, no party is allowed to hold a conference with the joint expert in the absence of the other parties[81].

[C65]

The use of the single joint expert is most prevalent in fast track cases where, given the size of the claim, it would not be proportionate for each party to instruct their own expert[82]. Once a single joint expert has been agreed, the instructions to that expert should also be agreed. If agreement cannot be reached, then each party should send separate instructions[83]. These instructions must at the same time be sent to the other parties[84].

[C66]

In the normal course of events, a jointly instructed expert would not need to attend trial or be cross-examined, and any issues can be resolved by way of response to questions. If necessary, the court does retain the power to order that the single joint expert should attend court to be cross-examined[85]. However, in such a case it is obviously sensible if the joint expert is told in advance what topics are to be covered and any fresh material is adduced in advance of the hearing[86]. It should be noted that, if the joint expert does not attend court, this does not mean that the court is bound to accept the evidence or conclusions of the joint expert. For example, where the joint expert has made an obvious error regarding the figures in his or her report, the court is entitled to substitute its own figures[87].

The court-appointed single joint expert

[C67]

Under CPR, r 35.7 the court has the power to appoint a single joint expert for both parties. This power is usually exercised in one of two situations. The first situation arises where both parties wish to instruct a particular kind of expert but are unable to agree which expert should be instructed. In this scenario, assuming it is not appropriate or proportionate for each party to instruct their own expert, an application may be made to the court for it to decide which expert should be instructed. Any application should be supported with cogent reasons for the selection of the preferred expert over and above the alternatives. At the hearing of the application, it is useful to have the following information to put before the court: a detailed curriculum vitae of the expert; a breakdown of the amount of claimant/defendant work that the expert takes on; a summary of the expert's forensic experience (in particular the number of times the expert has given evidence in court); details of the expert's fees; details of the expert's availability; and the timeframe in which the expert is able to examine the claimant and prepare his or her report.

[C68]

Secondly, the court may direct that the expert evidence on a particular issue be restricted to that of a single expert where the parties each wish to rely upon an expert they have already instructed. An example of this is Baron v Lovell[88], where the defendant served a medical report very late in the day. The judge at first instance held that the medical evidence in the case be restricted to that of the claimant's expert. There were a number of factors influencing the judge's decision, including the fact that the evidence of the defendant's expert did not differ largely from the evidence of the claimant's expert, it was not a sizeable claim, and that permitting the defendant to rely upon the further report was likely to delay the final hearing. In the circumstances, the Court of Appeal upheld the judge's decision.

[C69]

Once the court has appointed a single joint expert, each party may give instructions to that expert[89]. The court may also make orders regarding payment of the expert's fees and any inspection, examination or experiments to be carried out[90].

(viii) Challenging a Joint Expert

[C70]

Occasionally, where the amount at stake is substantial, the court may permit a party to rely upon the evidence of another expert. In the Court of Appeal case of Daniels v Walker[91] the infant claimant had been severely injured in a road traffic accident. A care expert had been instructed on a joint basis who recommended an extensive care regime for the claimant. The defendant was not happy with this care report and wanted facilities to instruct a second care expert of his nomination. It was held that the defendant should be allowed to instruct his own care expert, although it would have been preferable to have first asked questions of the joint expert. Lord Woolf said[92]:

'… the fact that a party has agreed to adopt [a joint expert] does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate to rely upon the evidence of another expert.

In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly by the parties as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.

In the majority of cases, the sensible approach will not be to ask the court straight away to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one is in a position to consider the position in the round. You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach. It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances. At most what should be allowed is merely to put a question to the expert who has already prepared a report.'

[C71]

It is interesting to note that, in Daniels v Walker[93], the defendant sought to challenge the report of the jointly appointed expert because, in the experience of the defendant's insurers, the costs claimed in the report vastly exceeded the care costs involving other infant claimants with similar disabilities. On this basis, the Court of Appeal held it was just to allow the defendant facilities for their own expert. It was not necessary to have shown that the joint expert's report was flawed in some way, eg by being incorrect, inconsistent or biased. Therefore, as long as the claim is substantial, a party's belief (based on reasonable grounds) that the joint expert's report is plainly wrong might be enough to obtain the court's permission to call a second expert[94].

[C72]

The difficulty is defining what is meant by 'substantial' and deciding when an issue is worth enough to attempt to counter the joint expert's evidence. In Daniels v Walker[95] it was said that the issue regarding care could involve 'hundreds of thousands of pounds'. It is submitted that, although it might not always need to involve a six-figure sum, the chances of challenging a joint expert's report in a fast track case are remote. It should be emphasised that the defendant in Daniels v Walker had good reasons for thinking (from past experience in apparently similar cases) that the jointly instructed expert was out on a limb compared with that which other experts might advise. The case is not authority for the proposition that, without such good reason, a party to a significant claim may simply expect to be allowed an expert of their own.

[C73]

It is worth noting that the claimant will often be in a better position to challenge a joint expert's report than the defendant. This is because the claimant may submit him or herself for a further examination or interview, and a second report can be obtained prior to deciding whether or not to challenge the joint expert's view. If this report is positive, the claimant can then apply to the court armed with the second expert's report. Having the second report available should make it much easier to conceive of reasons which are not fanciful as to why the joint expert's report is open to criticism and why the second expert's evidence should be permitted. For the defendant to obtain a second expert report requires the claimant to consent to having another examination or interview[96]. Such consent is unlikely to be forthcoming if he or she is content with the existing joint expert's report. Therefore, unless the defendant has the benefit of a shadow expert, the defendant's representatives will be left to think up reasons to challenge the joint expert's opinion on their own.

[C74]

Some useful guidance was provided by Neuberger J (as he then was) in Cosgrove v Pattison[97] regarding the factors to be taken into account when considering an application to permit a further expert to be called:

'In my judgment, although it would be wrong to pretend that this is an exhaustive list, the factors to be taken into account when considering an application to permit a further expert to be called are these. First, the nature of the issue or issues; secondly, the number of issues between the parties; thirdly, the reason the new expert is wanted; fourthly, the amount at stake and, if it is not purely money, the nature of the issues at stake and their importance; fifthly, the effect of permitting one party to call further expert evidence on the conduct of the trial; sixthly, the delay, if any, in making the application; seventhly, any delay that the instructing and calling of the new expert will cause; eighthly, any other special features of the case; and finally, and in a sense all embracing, the overall justice to the parties in the context of the litigation.'

(ix) Questions to Experts

[C75]

Once the expert has reported, the parties have 28 days to put any written questions to the expert about the contents of their report[98]. Technically, any questions should only be for the purposes of 'clarification' of the report[99]. However, it is common for detailed questions to be put which either raise new matters or ask the expert to consider issues which have been omitted from his or her report[100].

[C76]

The expert's answers to the questions raised by the parties will be treated as part of the expert's report[101]. Therefore, assuming the expert's report is admissible in evidence, so will be the answers to the questions. The Court of Appeal also sent a clear warning, regarding the unfairness of refusing to permit the answers to questions raised of experts to be adduced in evidence, in Mutch v Allen[102]. In this case, the claimant had instructed a medical expert to report upon the claimant's injuries following a car accident. There was an issue in the case as to whether or not the claimant had been wearing his seat belt and whether the extent of his injuries would have been lessened if he had been wearing one. The answers to the questions asked by the defendant of the claimant's expert indicated that the claimant had not been wearing his seat belt and that his injuries would have been considerably less severe had he been wearing it. At a case management hearing the judge refused the defendant permission to rely upon the expert's answers, since it would mean allowing the defendant to rely upon evidence served outside the time limit provided by an earlier court order. The Court of Appeal had no hesitation in permitting the expert's letter answering the defendant's questions into evidence, and also gave permission for the expert to attend court in order to give oral evidence, with each party having permission to cross-examine him.

[C77]

It is now clear that, where a joint expert has prepared a report and one party is not satisfied with it, the first step is for that party to submit written questions to that expert[103]. If the answers to those questions still do not allay that party's concerns regarding the expert's evidence, steps may be taken in order to challenge the joint expert by applying for permission to instruct and admit into evidence the report of a further expert. Failure to put questions to the joint expert first, before seeking to challenge that expert's evidence, is unlikely to find favour with the court[104].

(x) Expert Discussions/Meetings

General

[C78]

The court may direct that each party's respective experts hold a discussion to (a) identify the issues in the proceedings, and (b) where possible to reach agreement on the issues[105]. Such discussions are now commonplace and often much turns on the outcome of the same. The general presumption appears to be that a discussion/meeting will take place between respective experts in an attempt to narrow the issues between the parties[106], and it will not be a breach of a party's Art 6 right to a fair trial under the European Convention of Human Rights[107]. The content of the discussion and any correspondence between the experts remains privileged and must not be referred to unless all parties agree[108]. Further, any agreement reached between the experts will not bind a party unless the parties expressly agree to be bound by the agreement[109]. Indeed, there are circumstances in which a party may apply for permission to call a second expert where the first expert had modified his opinion following a joint discussion with the other side's opposing expert for reasons that could not properly and fairly support his revised decision[110].

Format and agenda for meetings between experts

[C79]

Save in the most straightforward cases, it is appropriate for the parties to draw up an agenda for the discussions between experts of like disciplines[111]. Unless the lawyers become involved in this process, often issues are not discussed and a further meeting has to be arranged. Generally speaking, the agenda should contain a list of closed questions which may be answered 'Yes' or 'No'[112]. Where the parties cannot agree the agenda, each party should send its own agenda to the experts[113].

Presence of lawyers at expert meetings

[C80]

It is rare for lawyers to attend expert meetings, and the general presumption is that lawyers do not need to be present[114]. Indeed, it is relatively uncommon for there to be a meeting at all (and the experts will usually discuss matters over the telephone). However, in rare cases the court may be persuaded to allow each party's lawyer (or a representative for each party) to attend the expert meeting[115]. Such permission is only likely to be granted in high-value, complex cases where the lawyers might assist the experts as regards the appropriate law and it would be proportionate for the lawyers to be present. An alternative might be to have the discussion/meeting recorded or an independent person to be agreed between the parties in order to chair the discussion/meeting[116].

Joint statements

[C81]

The court will usually direct that, following any expert discussion/meeting, the experts prepare a statement for the court showing (a) the issues upon which they are agreed, and (b) those issues upon which they disagree and a summary of their reasons for disagreeing[117]. Whilst the content of the discussion remains privileged, the outcome of the discussion – ie the joint statement – is not privileged[118]. A party will not be bound by the contents of a joint statement unless they expressly agreed to be so bound; therefore, even if agreement is reached between opposing experts, a party may indicate that it is simply evidence that must be assessed as part of all the evidence[119].

Unilateral meetings

[C82]

It is not appropriate for one party to meet with a joint expert without the consent of all the other parties[120].

(xi) Change of Expert's Opinion

[C83]

In The Ikarian Reefer[121], Cresswell J said:

'If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and where appropriate with the court.'

(xii) Change of Expert

[C84]

Where a claimant is not happy with an expert report, it is possible for the claimant to submit him or herself to another examination (if necessary) and for a report to be prepared by a different expert. Assuming it has not already been served, the first report will remain privileged from disclosure[122]. If proceedings have been issued and a court order permits expert evidence in a particular discipline but does not name specific experts, there is no problem in a claimant relying upon the new expert's report[123]. However, where a defendant wants to rely upon a new expert, the position is more difficult because the defendant will usually need to be granted facilities by the claimant for a further examination and the claimant is likely to refuse unless a good reason is provided. If necessary, an application can be made to the court to obtain permission to rely upon a further expert, although the court is unlikely to grant such permission unless the defendant provides a good reason why another expert report is required and discloses the report upon which it no longer wishes to rely[124]. The rationale behind this rule is to prevent 'expert shopping', which is strongly discouraged by the court[125]. However, if there are good reasons for wishing to instruct another expert – eg the original expert has retired or died – the court may order that the claim be stayed until the claimant submits him or herself to a further examination. The Court of Appeal was recently persuaded to make such an order on behalf of a defendant (having given an undertaking that it would disclose the report obtained from the first expert) where it claimed that it had completely lost confidence in the first expert it had instructed[126]. On a like–for-like basis, if permission is granted for the parties to rely upon specific named experts, the court may order a claimant to disclose the first expert's report as a condition before granting permission to rely upon a substitute expert[127].

(xiii) Shadow Experts

[C85]

A shadow expert is an expert instructed by a party, without express permission from the court, who advises that party in relation to the expert evidence in his or her area. Such an expert will usually be retained to advise upon the claim as it progresses. It is uncertain how common such experts are, but they are likely to be limited to larger cases.

(xiv) The Role of Expert Evidence at Trial

[C86]

If a case proceeds to trial, it should be noted that, although expert evidence is important, it is only part of the evidence which the judge needs to assess along with all the other evidence[128]. This equally applies to jointly instructed experts, whose evidence the court is not necessarily bound to accept, even where the expert is not called to give evidence, especially where there is an obvious flaw in the expert's reasoning[129]. Clarke LJ (as he then was) put it this way in Coopers Payen Limited v Southampton Container Terminal Ltd[130]:

'All depends upon the circumstances of the particular case. For example, the joint expert may be the only witness on a particular topic, as for instance where the facts on which he expresses an opinion are agreed. In such circumstances it is difficult to envisage a case in which it would be appropriate to decide this case on the basis that the expert's opinion was wrong. More often, however, the expert's opinion will only be part of the evidence in the case. For example, the assumptions upon which the expert gave his opinion may prove to be incorrect by the time the judge has heard all the evidence of fact. In that event the opinion of the expert may no longer be relevant, although it is to be hoped that all relevant assumptions of fact will be put to the expert because the court will or may otherwise be left without expert evidence on what may be a significant question in the case. However, at the end of the trial the duty of the court is to apply the burden of proof and to find the facts having regard to all the evidence in the case, which will or may include both evidence of fact and evidence of opinion which may interrelate.'

8  The Claimant's Instructions

(i) Progress Reports

[C87]

It is important that the claimant is encouraged to keep his or her representatives updated regarding his or her condition and continuing losses/expenses. If liability is not contested, it might be possible to obtain an interim payment to cover these costs.

(ii) Expert Evidence

[C88]

Many experts will require additional information before they can prepare their reports. Often, this information will be gathered directly by way of an interview with the claimant. However, sometimes the claimant's representatives will have to make specific inquiries.

[C89]

The claimant's instructions should be taken regarding the contents of any expert report. If the report is not a joint report, instructions should be taken before the report is disclosed to the other side. That way, errors can be corrected or an expert might be prevailed upon to alter a damaging section of their report[131]. Alternatively, claimants may indicate that they do not wish to rely upon the report at all, in which case, assuming the report remains privileged, it may be discarded[132]. Such errors are not easily rectifiable after a report has been disclosed without drawing the attention of the other party. Further, where a party has disclosed a report but no longer wishes to rely upon its contents, it is open to any other party to use that expert report at the trial[133].

[C90]

In more complex cases, it is often advisable to arrange a face-to-face meeting with the claimant, the expert(s) and counsel in order to take precise instructions regarding major issues. Care should be taken to limit the expert's involvement in any such conference to the matters upon which expert guidance is sought – in particular, because the expert is in the position of giving evidence to the court, as a primary responsibility, and must detail the sources of his or her instructions. The line between that which is privileged and that which is not is arguably unclear, and prudence dictates the exercise of caution: the expert should advise the litigation team, rather than be part of it. However, it should be noted that only final reports need to be disclosed, and preliminary or provisional reports are protected from scrutiny by the other side[134]. Where there is likely to be a dispute regarding loss of earnings or residual earning capacity (or any other significant part of the claim), it is sensible to assess the claimant's credibility as a witness at an early stage. This is particularly important where there is any issue of malingering or exaggeration of symptoms. If the claimant does not make a reliable witness, he or she should be warned at an early stage regarding the prospects of succeeding on the various proposed heads of loss and the dangers associated with exaggerating the claim[135].

(iii) Expenses/Losses

[C91]

Importantly, care should be taken to ensure that the claimant and/or the litigation friend understands what heads of loss are being claimed and the reasons why they are required. In particular, it should be checked that the claimant is able to and wants to take advantage of the aids and appliances claimed on his or her behalf. For example, in Blair v Michelin Tyre[136]the trial judge rejected the claim for a second wheelchair because the claimant did not seem keen on it and it 'might seldom, if ever, be used'. Further, in Dorrington v Lawrence[137], Hooper J disallowed a claim for a computer and £600-worth of software because the claimant already had a computer which he did not use and it was unclear whether the claimant had the capacity to make use of the software that was recommended.

9  The Claimant's Best Interests

[C92]

Occasionally, it will be necessary to establish that a particular item of expense and/or course of action is or is not in the claimant's best interests. This is generally done through factual witness statements or, alternatively, expert evidence. An example of this is the decision regarding whether or not proposed medical treatment is in the best interests of a claimant who lacks capacity[138].

10  Witness Statements

(i) Introduction

[C93]

The schedule of loss has to be supported by evidence. Whilst a lot of the supporting evidence may be contained in various expert reports, each head of loss should be specifically commented upon in the witness evidence[139]. Failure to detail the nature and basis upon which each claim is made may result in that particular claim being struck out.

(ii) Evidence in Chief

[C94]

Under the CPR the general rule is that a witness statement will stand as the witness's evidence in chief[140]. It is possible to ask permission to amplify a statement by oral evidence at court[141], but only if there is no good reason not to confine the evidence of the witness to the contents of his witness statement[142]. It is therefore crucial to make sure that the statement covers all relevant matters.

[C95]

Should it not be possible to serve a witness statement, then a party may apply without notice to serve a witness summary instead[143]. A witness summary should summarise either the evidence which would otherwise be included in a witness statement or, alternatively, the matters upon which the serving party intends to question the witness[144]. Unless the court orders otherwise, a witness summary must include the name and address of the intended witness and be served within the same period for service of the witness statement[145].

(iii) Form of the Statement

[C96]

Unless a witness statement complies with the form specified in the PD to CPR, Pt 32, the court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation[146]. The required form of a witness statement may be summarised as follows:

  • The witness statement must be headed with the heading title of the proceedings[147].

  • The following information should be displayed at the top right hand corner: the party on whose behalf the statement is made; the initials and surname of the witness; the number of the statement in relation to that witness; the identifying initials and number of each exhibit referred to; and the date that the statement was made[148].

  • The statement must as far as is practical be in the witness's own words; be expressed in the first person; state the full name of the witness; his or her residential or professional address; his or her occupation; and whether or not he or she is a party to the proceedings or an employee of such a party[149].

  • An indication must be given as to which statements are made from the witness's own knowledge and belief and which are made from other sources[150].

  • All exhibits referred to by the witness should be verified, clearly marked and remain separate from the statement[151].

  • The statement should be on durable A4 paper; with a 3.5cm margin; be fully legible; be securely bound; have each page consecutively numbered; be divided into numbered paragraphs; have all numbers expressed in figures; and give in the margin the reference to any document or documents mentioned[152].

  • The statement should usually be in chronological order[153].

  • The statement must be verified by a statement of truth[154].

(iv) Content of the Statement

[C97]

A properly drafted witness statement on behalf of the claimant would usually include details regarding the following matters:

  • The circumstances surrounding the cause of the claimant's injuries.

  • The injuries themselves, both physical and psychological.

  • The treatment received, surgery undergone and/or medication taken.

  • Any continuing treatment and/or medication for injuries.

  • The need (if any) for future treatment and/or surgery.

  • Prior work history including qualifications, training, skills and experience (exhibiting a curriculum vitae and any relevant training certificates).

  • The effect of the injuries on the claimant's general lifestyle, including mobility, dressing, sleep, personal hygiene and independence.

  • The effect of the injuries upon the claimant's capacity to work.

  • The effect of the injuries upon the claimant's domestic situation and ability to carry out household chores such as cooking, cleaning and washing.

  • The effect of the injuries upon the claimant's ability to carry out DIY, decorating and/or gardening.

  • The effect of the injuries upon the claimant's hobbies and leisure activities.

  • The effect of the injuries upon the claimant's social life and relationships.

  • The need (if any) for care.

  • The need (if any) for domestic assistance.

  • Any pre-existing injuries or supervening injuries.

  • Any claim for disadvantage on the open labour market.

  • Any claim for loss of congenial employment.

  • All past losses and expenses arising out of the accident.

  • All future losses and expenses arising out of the accident.

  • A summary of the claim.

[C98]

Although the situations in which it would be beneficial to prepare witness statements on behalf of people other than the claimant in order to support the schedule of loss are limitless, such statements are usually helpful from the following lay witnesses:

  • Providers of gratuitous care and/or domestic assistance to the claimant.

  • Close friends and relatives who are able to comment upon the effects of the claimant's injuries, especially where the claimant has suffered a personality change. Similar evidence should also be obtained from any apparently reliable objective observer (eg the class teacher; the vicar; the GP; the community police officer) who is able to speak about these matters and paint a fair picture of the before and after injury situations.

  • The claimant's ex-partner where, by reason of the injuries, the claimant's relationship has been strained or has come to an end (care must be taken: the pros of advancing this evidence have to be balanced against the cons that any residue of personal hostility engendered by the break-up of the relationship might colour what the ex-partner has to say).

  • The claimant's referees (academic and professional) who might be able to provide an idea as to the claimant's career potential but for his or her injuries.

  • Work colleagues (especially supervisors/managers) where the claimant's capacity for work and/or future potential (particularly in terms of promotion/advancement) is in issue. Other workmates may often be useful as comparators if they were in a similar position to the claimant at the time of the injury but have, for instance, since gained promotion/bonuses etc.

  • The claimant's accountant or business adviser (who can exhibit relevant documents and accounts).

  • The claimant's sporting/leisure contacts with whom the claimant can no longer enjoy a particular activity.

  • The claimant's case manager[155].

  • The claimant's carers.

  • The claimant's treating doctors or therapists[156].

[C99]

The amount of detail to put in a witness statement depends upon the type and size of claim. Generally speaking, there are two rules: first, the more detail the better; and secondly, the detail must not go beyond that which is relevant. An attempt should be made to ensure that the amount of detail provided on each point is proportionate to the significance of that particular issue. If the statement is relatively long, it is preferable to split the statement into sections with clear subheadings. As far as possible, all the information should be recorded in chronological order. Any useful documents relating to the points covered in the statement should be exhibited for ease of reference. The danger of detail – especially that which is only of tangential relevance – is that, if it is any less than wholly accurate, it may be challenged, and the challenge may affect the apparent credibility of the witness on crucial matters. It is often difficult to assess whether the detail given by a witness will actually 'stand up' at trial, and if there is any doubt, it is better to leave out the additional information in order to avoid the risk of compromising the claim.

[C100]

By virtue of s 1 of the Civil Evidence Act 1995, evidence is no longer inadmissible due to the fact that it is hearsay. However, a party wishing to rely upon hearsay evidence contained in a statement must serve that statement on the other parties[157]. Interestingly, the service of the statement itself qualifies as the hearsay notice under s 2(1)(a) of the Civil Evidence Act 1995[158]. Should the party not be calling any oral evidence in respect of the hearsay evidence, then that party must notify the others that the witness is not being called and give the reasons why[159].

[C101]

Given the possible consequences of signing an incorrect statement of truth, it is vital that a witness, and particularly the claimant, reads through their statement extremely carefully before signing it[160]. Of course, at the end of the day it is the witness and no one else who will have to speak to his or her statement and be cross-examined upon the same, and it is therefore the maker of the statement who is ultimately responsible for checking the accuracy of what is said.

(v) Supplemental Statements

[C102]

As and when new facts emerge which are relevant to the outcome of the claim, supplemental witness evidence should be prepared. For example, if the claimant's employment position has changed since filing the original statement, then an updated statement should be prepared. Supplemental statements should also be used to explain, so far as is possible, unexpected events such as a claimant's 'good day' acrobatics being caught on video surveillance.

[C103]

If an alteration has to be made to a statement, it must be made by the maker of the statement and correctly initialled[161]. A statement which has been altered without being initialled may only be used in evidence with the permission of the court[162].

11  Interim Payments

[C104]

The court retains a power to award interim payments under s 32 of the Senior Courts Act 1981 and s 50 of the County Courts Act 1984. The court also has the power to award periodical payments to be made in the interim[163]. A claimant may make an application for an interim payment not exceeding a 'reasonable proportion' of the damages likely to be recovered under CPR, r 25.6. The application must be served at least 14 days before the hearing of the application and be supported by evidence[164]. But what should this evidence consist of? Generally speaking, what the claimant wants the interim payment for is not strictly relevant, since the court is not concerned with what the claimant does with his or her money[165]. However, in practice it is often desirable, if not necessary, to prepare a witness statement in support of any application for a significant interim payment, in order to persuade the court why it should exercise its discretion in the claimant's favour[166]. Tactically, when acting for claimants in higher value claims, it is prudent to apply for an interim payment at an early stage and, thereafter, appoint a case manager to set up a care regime and/or purchase various aids and equipment on behalf of the claimant. Assuming all goes well and the claimant benefits from the care provided and/or items purchased, this makes it much harder for a defendant subsequently to argue that the care or aids/equipment claimed were unreasonable. Defendants appreciate this difficulty, and attempts are sometimes made to resist the award of an interim payment in case it might prejudice the level playing field.

[C105]

In Campbell v Mylchreest, Auld LJ put the position as follows[167]:

'It is true that, as a guide to the exercise of that discretion, it indicates that the court should normally order sought interim payments within the amount of the likely recoverable damages without investigation or consideration of the [claimant's] intended use of the money.

However, there may be instances where there may be another matter or other matters relevant to the exercise of the discretion. Mr Mackay has helpfully suggested possible examples in other circumstances: first, that the payment is sought too close to the trial to justify ordering it; second, that the sought payment may be too small for it to be worthwhile as an exercise of the power; and third, where a [claimant] is not getting on with the claim and simply putting off the day of trial by repeated applications for interim payments.

Returning to this case, where the use to which a [claimant] intends to put money received by way of interim payment might prejudice the fair conduct of the trial in some way, it is, in my view, a relevant factor for consideration by the judge, along with the Stringman (a minor) v McArdle[168]starting point, when exercising his discretion whether to order a payment. More particularly, where the use to which the [claimant] intends to put the money might pre-empt in some way the outcome of an important issue in the trial, that is a matter relevant to the exercise of the discretion.'

[C106]

In larger cases where periodical payments may be awarded for some heads of future pecuniary loss, the Court of Appeal has recently given guidance as to the appropriate approach for first-instance judges when considering interim payment applications. In Cobham Hire Services Ltd v Eeles[169], Smith LJ giving the lead judgment of the court (with which Dyson and Thomas LLJ agreed) held that the judge must consider which heads of loss may be awarded by way of periodical payment and only award a reasonable proportion of the likely capital sum (made up of general damages, future accommodation and past losses). However, there are exceptions to this where, for example, there is an urgent need to purchase alternative accommodation, and the judge can confidently predict that more heads of loss will be capitalised by the trial judge in order to fund the purchase of the new home[170].

12  Other Evidence

(i) Photographs

[C107]

Pictures of the claimant's injuries can be an excellent way of conveying the pain and discomfort that must have been suffered. Also, a few pictures taken at various intervals are a very convenient way of depicting the different stages of the claimant's convalescence. For example, in a case involving a serious leg fracture the claimant might spend several days in hospital undergoing surgery, followed by some time in a wheelchair, after which the claimant might be able to start gentle weight-bearing with the aid of crutches before being able to walk normally again.

[C108]

Good-quality, close-up colour photographs are especially useful in cases involving scarring or significant bruising. There are some photographers who specialise in this type of work. In smaller cases, however, the claimant should be encouraged to take his or her own photographs, making sure to use plenty of light. However, no case of scarring should be assessed as to the appropriate level of damages without seeing the claimant's injuries personally. Photographs can be misleading (not only over-dramatising scars but also having the opposite effect) and much depends upon the very personal reaction a claimant has to his or her disfigurement.

[C109]

Photographs may also be useful to show an overrun garden (which can no longer be tended to by the claimant), decoration works that had to be done by builders, or the damage caused to vehicles, possessions or objects.

(ii) Video Evidence

Admissibility

[C110]

Video evidence may be adduced as long as notice is given not later than the latest date for serving witness statements[171]. Where the video evidence is put in by a party to disprove an allegation which appears in a witness statement, notice must be given at least 21 days before the hearing at which the party intends to rely upon the video evidence[172]. Once a party has given notice of intention to rely upon video evidence, he or she must give every other party an opportunity to inspect it and to agree to its admission without further proof[173].

'Day in the life of' videos

[C111]

In catastrophic cases, a 'day in the life of' video can be a very graphic way of showing the claimant's daily life and care regime. However, the response to such videos varies, and care should be taken to ensure that the video is not over the top.

Specific heads of loss

[C112]

Videos may also be invaluable to explain why a certain head of loss is necessary, eg by showing the benefits of having a hydrotherapy pool at home[174] or showing the advantages of one type of stair lift over another. Such evidence may be particularly useful where there is an issue about the claimant's general level of cognitive ability or insight into his or her condition[175]. A defendant might also wish to use video evidence in order to demonstrate the benefits of (cheaper) alternative aids and equipment or accommodation.

Specific procedures or techniques

[C113]

Video evidence may be a useful way of showing how a technical procedure is carried out. In particular, surgical and laboratory procedures are often more easily understood with the benefit of video evidence.

Surveillance videos

(1) The need for surveillance evidence

[C114]

Sometimes, the defendant will suspect that the claimant is less disabled or has made a better recovery than he or she makes out. Insurers will often be prepared to employ private investigators to videotape claimants performing their daily activities in order to see whether or not they demonstrate a greater degree of mobility than revealed in the medical reports and/or witness statements. The cost of obtaining such evidence may be repaid many times over if the claimant is shown to have been exaggerating or malingering.

(2) The uses of surveillance evidence

[C115]

The main uses of surveillance evidence can be summarised as follows:

  • To attack a party's credibility and show that he or she cannot be relied upon as a witness of truth[176].

  • To demonstrate that the claimant has made a better recovery from his or her physical injuries and is not as disabled as he or she claims[177].

  • To show that the claimant has been working.

  • To show that the claimant has been able to partake in leisure activities or holidays.

  • To support allegations of contributory negligence.

(3) Disclosure of surveillance evidence

[C116]

Generally speaking, the 'cards on the table approach' of the CPR requires that any relevant evidence (including surveillance evidence) should be disclosed as soon as possible, and cost penalties may result from deliberately withholding the disclosure of such evidence for tactical reasons[178]. However, the court retains a discretion to allow a defendant to delay disclosure of video surveillance evidence for a reasonable time, until the claimant has committed him or herself to updated witness evidence and/or an updated schedule of loss has been served[179]. This limits the claimant's ability to explain away what is shown by the surveillance evidence, and increases the chances that there will be discrepancies between what is said in the claimant's witness statement and what is shown on the video evidence. However, the late admission of surveillance evidence amounting to an 'ambush' may be refused[180].

(4) Refusal of permission to rely upon evidence

[C117]

The court retains a general discretion to control and exclude evidence[181]. There may be circumstances in which it is proper to prohibit the defendant from obtaining video evidence. For example, where the claimant suffers from a psychiatric condition which has already been made worse by being the subject of video surveillance evidence, the court may prohibit the use of further surveillance evidence in order to prevent harm to the claimant and infringement of his or her rights[182]. Alternatively, permission may be refused where the evidence is served too late and would amount to an 'ambush' necessitating the adjournment of the trial[183].

(5) The impact of the Human Rights Act

[C118]

There is a clear tension between Art 8 of the European Convention on Human Rights, on the one hand, which provides that everyone has the right to respect for his private and family life; and Art 6, on the other, which entitles litigants to a fair hearing. Prior to the CPR, it was generally the case that video evidence could be relied upon even if obtained unlawfully, eg by trespass or deception[184]. Under the CPR, the starting point continues to be that, where video evidence has been obtained which substantially undermines the claimant's case, it will usually be in the interests of justice to admit the evidence and allow the defendant to cross-examine the claimant upon it[185]. Although a clear breach of Art 8 may operate to prevent the admissibility of evidence[186], the Court of Appeal's decision in Jones v University of Warwick[187]has limited the scope for arguing that unlawfully obtained surveillance evidence should be excluded. In this case, the defendant had instructed an inquiry agent who had obtained covert surveillance evidence of the claimant in her own home by posing as a market researcher. It was common ground that the inquiry agent was guilty of trespass and had obtained entry to the claimant's home by deception. The claimant contended that the evidence should be excluded under the court's discretion provided by CPR, r 32.1(2) and Art 8(1) of the European Convention on Human Rights. The Court of Appeal upheld HHJ Harris' decision that the evidence should be admitted. Lord Woolf explained the court's reasoning as follows[188]:

'The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend upon all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen's submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge's decision not to exclude the evidence.'

(6) Costs

[C119]

However, it should be noted that there was a sting in the tail for the defendants in Jones v University of Warwick[189], as Lord Woolf continued[190]:

'While not excluding the evidence it is appropriate to make clear that the conduct of the insurers was improper and not justified … The fact that the insurers may have been motivated by a desire to achieve what they considered would be a just result does not justify either commission of trespass or the contravention of the claimant's privacy which took place …

Excluding the evidence is not, moreover, the only weapon in the court's armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes. In this appeal, we therefore propose, because the conduct of the insurers gave rise to the litigation over the admissibility of the evidence which has followed upon their conduct, to order the defendants to pay the costs of these proceedings to resolve this issue before the district judge, Judge Harris and this court even though we otherwise dismiss the appeal. This is subject to Mr Owen having an opportunity to persuade us to do otherwise. In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant's conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant's control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer's conduct.'

Video link evidence

[C120]

The court has a general discretion to allow witnesses to give evidence through a video link or by other means[191]. The use of this power is becoming increasingly popular when presenting evidence from foreign experts or witnesses and helps to keep costs down.

13  Advice on Evidence and Part 18 Requests

(i) The Need for Advice on Evidence

[C121]

The advice on evidence is an essential step in any significant personal injury or clinical negligence claim. It is all too easy for a litigator who is in charge of handling a claim on a day-to-day basis to overlook the weaknesses of their client's case and not focus upon the evidence required to support or challenge each head of loss that is claimed. Whilst there is now a much greater degree of specialisation than ever before, and most personal injury practitioners work in teams or whole departments of skilled professionals, it is often extremely valuable to have independent and objective input from external counsel in relation to the evidence needed to prepare a case for trial. Once familiar with a case, it becomes difficult to put oneself in the position of the judge who has only recently picked up the papers (most judges only see the case papers shortly before the trial begins). Those all-important first impressions can be forgotten. Since cases are won or lost on the quality and presentation of the evidence called, it is prudent to obtain the advice of external counsel to advise upon this issue at a relatively early stage in proceedings.

[C122]

A recent example of this is provided by Smith v McRae[192], in which Newman J gave the following salutary message[193]:

'I wish only to add a few words on the evidence in this case. I share his concern about the way in which the evidence for the claimant was presented. If the method of preparation and presentation adopted in this case reflects a common circumstance in connection with personal injury cases in the district court it has, in my judgment, departed too far from the basic principle that a claimant must prove his case by evidence capable of supporting the conclusions to which the court is invited to come. It may be that the days of a formal advice on evidence are long gone but the need which such advice fulfils remains. Someone on each side in litigation such as this, with sufficient skill to do so, must, at some timely stage before trial, draw up a list of the issues which remain contentious and then consider whether or not there is evidence available to meet those issues. The lack of concern evident from the judgment in this case from the deputy district judge about the sufficiency and quality of the evidence and the apparent alacrity with which he felt able to make assumptions gives cause for concern. No doubt he had in mind the principles often expressed to the effect that judges must often simply do their best or approach an issue on a broad brush basis, but these principles have limitations. There is a need for evidence and there is a need for an analysis of such evidence; then the judge can make findings of fact by drawing inferences and doing the best he can, but on the evidence which is available.'

[C123]

Of course, the English legal system is adversarial. The role of the court is not to investigate, but to adjudicate. A judge will only make decisions upon the issues before the court (as presented by the pleadings) based upon the evidence which is adduced. It is therefore crucial to ensure that the pleadings correctly identify the issues in dispute and that the evidence called addresses those issues. In the new era of 'cards on the table' litigation, it is no longer permissible to ambush an opponent with arguments raised for the first time at trial. Under the CPR, the court has become much more involved with the management of cases and the control of evidence. Permission is required before expert reports may be relied upon[194], admissible evidence may be excluded[195] and there is a need for proportionality[196]. Failure to comply with the relevant rules and practice directions is likely to lead to the imposition of cost penalties.

(ii) What the Advice Should Cover

[C124]

The following is a check-list of the main issues that external counsel should be asked to consider:

  • (1) What are the issues in the claim?

  • (2) Do the pleadings (including the schedule and counter-schedule) accurately reflect those issues, and what amendments, if any, should be made to the same?

  • (3) What evidence is required to prove the client's case in relation to each issue?

  • (4) Is a conference needed? If so, who should attend?

  • (5) Witness evidence:

    • How persuasive is the witness evidence that has been prepared to date? Are the statements ready for service? Do the statements cover everything they need to or are any amendments, deletions or additions needed?

    • Who else should be providing witness statements of fact, and what should be covered by the witnesses in their statements?

    • Which witnesses should attend trial, and should the witness evidence be updated before trial?

  • (6) Expert evidence:

    • How persuasive is the expert evidence that has been obtained to date?

    • What amendments, if any, need to be made to the reports?

    • Are there any issues which need to be clarified or questions which need to be asked of the experts?

    • What further expert evidence is needed? If so, identify the relevant expert discipline and make a suitable recommendation as regards choice of expert.

    • If there is a conflict of expert evidence – whose evidence is likely to be preferred and why?

    • Which experts should permission be sought to call oral evidence from at trial?

  • (7) Other evidence:

    • Is there any need for photographic or video evidence?

    • Is there a need for diagrams or sketch plans?

    • Should any other information be sought, eg statistical, actuarial or epidemiological evidence?

    • Is there any need for instructing an inquiry agent?

  • (8) Disclosure:

    • Are the witness statements/expert reports ready for disclosure?

    • Has the disclosure which has been provided by the other parties (under the pre-action protocol or otherwise) been reasonable, or should any further documents be requested?

    • Should any information or documents be sought from any third parties?

  • (9) What further steps could and should need to be taken in respect of:

    • The documentary evidence?

    • The witness evidence?

    • The expert evidence?

  • (10) Procedural steps:

    • Is this a case in which a periodical payments order is to be sought, and if so, what form should it take and what evidence might be required, eg as regards proving security of future payments or establishing the most appropriate index for uprating future payments?

    • Are there any grounds for seeking strike out or summary judgment of an issue or whole claim?

    • Is there a need for an interim payment?

    • Is an award for provisional damages appropriate?

    • Is a split trial appropriate?

    • Should any issues be tried as preliminary issues?

    • Should a Part 20 claim be made? If so, against whom?

    • Is there any need to make an application for specific disclosure? If so, what documents should be sought from whom?

    • Is there any need for a Part 18 request – if so, what should such a request be asking?

    • Should a notice to admit facts be served? If so, what should the same be covering?

    • Should witness summonses be served?

    • Should a structured settlement or personal injury trust be considered?

    • Are any other procedural steps appropriate or necessary?

  • (11) Tactics:

    • What tactics should be employed in this case in order to maximise the chances of a successful outcome?

    • Should mediation or a round table meeting be considered?

    • Should a Part 36 offer/payment be made? If so, what form should the offer/payment take and at what level should it be pitched?

  • (12) Trial bundle:

    • What documents should go in the trial bundle?

    • Are there any documents which should be excluded or omitted from the bundle?

    • How should the evidence be presented?

  • (13) Next steps:

    • Set out any additional steps which need to be taken in order to prepare the case for trial and to meet the case that is likely to be presented by the other parties.

(iii) Part 18 Requests

The need for a Part 18 request

[C125]

There is no reason why Part 18 requests for further information cannot be directed towards quantum issues. For example, a claimant may wish to know from a defendant employer what the current applicable rates of pay are, and whether he or she would have been eligible for any pay rises. A defendant, on the other hand, may wish to inquire as to the claimant's planned retirement age, pension provision or travel expenses.

The timing of the request

[C126]

Generally speaking, a Part 18 request should be delayed until after: (i) disclosure; (ii) exchange of witness evidence; and (iii) exchange of expert evidence. The reason being that the information required may be supplied in accordance with the ordinary case management directions, and the need to respond to a formal Part 18 request will only serve to increase costs. However, sometimes such information is essential in order to put an accurate value on the claim, especially when considering a Part 36 offer or payment, and therefore the request should be made without undue delay.



[1] Matthews v Kuwait Bechtel Corpn [1959] 2 QB 57, [1959] 2 All ER 345; and Martin v Lancashire County Council [2000] 3 All ER 544, CA.

[2] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39. See further Chapter A at paras [A26][A28].

[3] The Clarence (1850) 2 W Rob (Adm) 283; Bonham-Carter v Hyde Park Hotel (1948) 64 TLR 178; Ashcroft v Curtin [1971] 1 WLR 1731; Tate & Lyle Food and Distribution v GLC [1982] 1 WLR 149; Harrison v Leake (1989) Times, 12 October, CA; Hughes (Gordon Clifford) v Addis (John) (23 March 2000, unreported), CA; Smith v McCrae [2003] EWCA Civ 505.

[4] Mappouras v Waldrons Solicitors [2002] EWCA Civ 842; cf Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323 where it was held, in the exceptional circumstances of the case, that the claimant was entitled to damages for breaches of a compromise agreement, even though the claimant could not prove any loss flowing from the breaches.

[5] Ashcroft v Curtin [1971] 1 WLR 1731; Harrison v Leake (1989) Times, 12 October, CA; Hughes (Gordon Clifford) v Addis (John) (23 March 2000, unreported), CA. Although, in certain instances it may be reasonable to infer parties' expenses/losses from the evidence: see further chapter 45 of McGregor on Damages (18th edn) and Bygrave v Thomas Cook Tour Operations Ltd [2004] EWCA Civ 1631, where the Court of Appeal accepted that it was reasonable for the judge to infer that the claimant would spend more on taxis in the future because of her injuries.

[6] The claimant may be unable to recover for very slight damage which falls foul of the de minimis principle: see eg Harwood v Cross Paperware [1975] CLY 107u, CA. This principle holds that the law does not worry about very small things. In a different context, see further Hollins v Russell [2003] EWCA Civ 718.

[7] Claims which are no more than speculative will not be recoverable. See eg Howarth v Whittaker [2003] Lloyd's Rep Med 235, Elias J (a claim for loss of earnings); Parkhouse v North Devon Healthcare NHS Trust [2002] Lloyd's Rep Med 100 (a claim for future IT requirements); D and D v Donald [2001] PIQR Q44 (a claim for dependency based upon deceased's pension); Firth v Geo Ackroyd Jnr Ltd [2000] Lloyd's Law Rep Med 312 (a claim for indemnity or a lump sum to reflect the chance that there would be a change of law in the future requiring the claimant to pay for his accommodation or care charges).

[8] Chaplin v Hicks [1911] 2 KB 786 at 792; The Mediana [1900] AC 113 at 116–117; Otter v Church [1953] Ch 280; Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132 at 141; and Thompson v Smith Shiprepairers (North Shields) [1984] QB 405. In Chaplin v Hicks [1911] 2 KB 786, Vaughan Williams LJ stated: 'The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages'. See also Eden v West & Co [2002] EWCA Civ 991.

[9] See eg Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; and, more recently, Eden v West & Co [2002] EWCA Civ 991, in which the Court of Appeal was critical of the trial judge's robustly dismissive approach to the claim for loss of earnings, notwithstanding the paucity of documentary evidence in support of the same.

[10] [2002] EWCA Civ 991. See also Bygrave v Thomas Cook Tour Operations Ltd [2003] EWCA Civ 1631, where the Court of Appeal accepted that it was reasonable for the judge to infer that the claimant would spend more on taxis in the future because of her injuries.

[11] See eg Smith v McCrae [2003] EWCA Civ 505, in which Kennedy LJ stated at [6], [8] and [14] 'The first matter still in dispute is the award made in respect of future loss of earnings. The judge had before him in relation to this issue practically no evidence. In order to calculate on the multiplier/multiplicand basis, it was necessary for the judge to have before him reliable evidence as to the claimant's pre-accident earning capacity and as to his post-accident earning capacity. The claimant here simply had not laid before the court the materials which might well, had they been laid before the court, have enabled the judge to adopt the approach he did [ie a calculation on the multiplier/multiplicand basis]. But the materials were not there. In the absence of those materials it was not appropriate to attempt to use figures which were patently, for the reasons I have endeavoured to explain, unreliable'. And see Van Wees v (1) Karkour and (2) Walsh [2007] EWHC 165 (QB), when Langstaff J adopted a broad-brush assessment of the claimant's future loss of earnings because of the difficulties and uncertainties in calculating future loss on a multiplier/multiplicand basis.

[12] See eg Rees v Dewhirst plc [2002] EWCA Civ 871; Willemse v Hesp [2003] EWCA Civ 994; Crouch v King's Healthcare NHS Trust [2004] EWCA Civ 853.

[13] Money claims with a value of less than £5,000, or personal injury claims with a value of less than £1,000, will be allocated to the small claims track. Following such an allocation, a successful party will not be able to recover their costs unless they can prove unreasonable behaviour on the part of another party to the litigation. See further CPR, Pt 27 and, in particular, r 27.14.

[14] Where possible, any medical expert instructed to prepare a report should be provided with a complete set of the claimant's medical records prior to their examination. Although it is sometimes necessary for reasons of expediency for the medical expert to see the claimant and prepare a report without sight of the claimant's medical records, and for a supplementary report then to be prepared once the records subsequently become available, this should be avoided. The difficulty in taking the claimant's instructions at face value in relation to their injuries and previous medical history is that the case might get off on the wrong footing, particularly where the claimant inadvertently forgets to mention something which later turns out to be important.

[15] Often, the medical records will contain a fairly detailed history describing how the claimant's injuries were inflicted, which may or may not confirm what is later said in the legal process. The records may also provide useful information such as whether or not the claimant was wearing a seat belt and who else was with the claimant at the time of the accident.

[16] The records may also include details about the cost of the treatment, if performed on a private basis.

[17] Of course, the claimant's medical records will be necessary to investigate and pursue any claim for clinical negligence.

[18] If a previous claim for personal injury has been made, there will often be correspondence in the claimant's GP records in relation to the same.

[19] See Dunn v British Coal [1993] ICR 591, [1993] IRLR 396, [1993] PIQR P275.

[20] Waugh v British Railways Board [1980] AC 521. See further Chapter A at para [A64].

[21] It should be noted that, in exceptional circumstances, the law may prevent such access, eg where it is feared that the records might have an adverse outcome on the claimant's health.

[22] Regulation 6(2) of the Data Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000. However, there are exceptions to this, eg where the records are all automated, the maximum fee is only £10 (see reg 3).

[23] Dunn v British Coal Corpn [1993] PIQR 275; Hipwood v Gloucester Health Authority [1995] PIQR P447.

[24] (1997) 3 BHRC 248.

[25] [2002] EWCA Civ 642.

[26] At [72], Chadwick LJ stated: 'The normal – and by far the most satisfactory course – is for the medical records to be produced by the claimant's advisers for inspection and consideration by the defendant's experts. It should not be necessary for the defendant's advisers to approach the GP or the hospital directly. But I cannot say that there are not circumstances in which it may be necessary – in order to break through what appears to be a wall of unresponsive silence …'.

[27] To this end, the order should detail the exact records which are to be disclosed, to whom they are to be disclosed, and for what purpose.

[28] See eg Hughes (Gordon Clifford) v Addis (John) (23 March 2000, unreported), CA, involving a claim for increased fuel costs arising out of the claimant's car phobia. See also Ashcroft v Curtin [1971] 1 WLR 1731; Harrison v Leake (1989) Times, 12 October, CA; and Cornes v Southwood [2008] EWHC 369 (QB).

[29] For an example where the court was prepared to make an award in respect of a particular item in the absence of specific evidence regarding the extent of the loss, see eg Felicia Andrina George (Administratrix of the Estate of Hughes Williams, Deceased) v Eagle Air Services Limited [2009] UKPC 34, in which the Privy Council awarded $3,000 for funeral expenses against a claim of $5,000 notwithstanding the lack of any specific evidence proving the level of costs incurred.

[30] The claimant is entitled to disclosure of these details under the Personal Injury Pre-action Protocol as documents material to a claim where the defendant is the claimant's employer.

[31] Doyle v Wallace [1998] PIQR Q146.

[32] See eg George v Stagecoach [2003] EWHC 2042 QB), in which Mackay J stated at [20]: 'I would have been better served by evidence from a human relations employee of either his present or another company. I would also have been served better by direct evidence of a specific comparator or comparators, particularly so where figures as high as those involved in this case are in play'.

[33] [1999] 1 AC 345.

[34] [2001] EWCA Civ 452.

[35] At [12]–[14].

[36] See eg Dorrington v Lawrence [2001] All ER (D) 145 (Nov), Hooper J; Stuart v Martin [2001] All ER (D) 401 (Oct), Owen J; M (a child) v Leeds Health Authority [2002] PIQR Q46, QBD, Sullivan J; McKeown v Munday [2002] EWHC 725.

[37] Stuart v Martin [2001] All ER (D) 401 (Oct), Owen J.

[38] [2002] PIQR Q46. For an example of a case where the claimant's poor family employment history and reliance upon benefits reduced the award for loss of earnings, by the judge applying a higher discount for contingencies other than mortality, see Peters v East Midlands Strategic Health Authority [2008] EWHC 778 (QB) at [84].

[39] See further Clarke v Powell 11/6/04, Lawtel Document No AM0900740 and Van Wees v (1) Karkour and (2) Walsh [2007] EWHC 165 (QB).

[40] By virtue of para 4.3 of the PD to CPR, Pt 16, if the claimant is relying on the evidence of a medical practitioner, the claimant must attach to or serve with his or her particulars of claim 'a report from a medical practitioner about the personal injuries which he or she alleges in the claim'.

[41] Wright v Sullivan [2005] EWCA Civ 656.

[42] Experts must only be used where necessary: Liddle v Middleton [1996] PIQR P36; Hawkes v London Borough of Southwark (20 February 1998, unreported), CA; and Bandegari v Norwich Union Fire Insurance Society Ltd (20 May 1999, unreported), CA. See also Prynn v Cornwall CC (unreported, 6 November 1995), CA.

[43] Although it should be noted that life expectancy is predominantly a clinical as opposed to statistical issue: B v RVI & Associated Hospital NHS Trust [2002] EWCA Civ 348. See further Chapter H, Future Expenses and Losses.

[44] Prynn v Cornwall CC (unreported, 6 November 1995), CA; Liddle v Middleton [1996] PIQR P36; Hawkes v London Borough of Southwark (20 February 1998, unreported), CA; and Bandegari v Norwich Union Fire Insurance Society Ltd (20 May 1999, unreported), CA. The same is true in the Employment Tribunal: De Keyser Ltd v Wilson [2001] IRLR 324.

[45] See CPR, r 35.1.

[46] Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[47] See CPR, r 35.4(1).

[48] See Wright v Sullivan [2005] EWCA Civ 656, CA, in relation to case managers, and Kirkman v Euro Exide Corp [2007] EWCA Civ 66, CA, in relation to treating doctors.

[49] Mann v Chetty & Patel (26 October 2000, unreported), CA.

[50] E S v A Health Authority [2003] EWCA Civ 1284, [2004] Lloyd's Law Rep Med 90.

[51] CPR, r 35.4(4).

[52] Kranidiotes v Paschalir [2001] EWCA Civ 357.

[53] Where the claimant only suffered minor cuts and bruising which healed very quickly, it may be disproportionate to obtain a full medical report and it may be possible to prove the claimant's injuries in other ways, eg photographs, the claimant's witness evidence and/or the claimant's medical records (the claimant's discharge summary or Accident & Emergency admission record can often be a useful document in this regard).

[54] Under the old procedure, RSC Ord 18, r 12, the plaintiff had to serve a medical report substantiating all the personal injuries alleged in the statement of claim and attributing them to the matters complained of: Nur v John Wyeth & Brother Ltd [1996] 7 Med LR 300; Lort v Thames Water Utilities Ltd (29 January 1993), CA; B v John Wyeth & Brother Ltd [1992] 1 WLR 172; L & W v John Wyeth & Brother Ltd (6 May 1992), Ian Kennedy J. Whilst the wording of the new rule does not go as far as the old, the court may be persuaded to exercise its case management powers against the claimant if the medical evidence served with the particulars of claim does not at least outline the broad nature of the injuries that were sustained and, without necessarily giving away the claimant's whole case in respect of causation, attribute them to the defendant's alleged wrongdoing.

[55] See further at para [C63].

[56] See further Oxley v Penwarden [2001] Lloyd's Rep Med 347, CA; and Simms v Birmingham Health Authority [2001] Lloyd's Rep Med 382, Curtis J.

[57] Notwithstanding the new 'cards on the table' approach, were the defendant to have sight of the claimant's medical evidence dealing with breach of duty and causation served with the particulars of claim, the defendant is likely to gain significant tactical advantage from the same. Therefore, the usual direction in clinical negligence cases is that there be mutual exchange of expert evidence regarding breach of duty and causation.

[58] Note that para 4.3 of the PD to CPR, Pt 16 does not state that the medical report served with the particulars of claim necessarily has to be from the same medical practitioner that the claimant wishes to rely upon at trial.

[59] Jackson v Marley Davenport [2004] EWCA Civ 1225; Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[60] Lucas v Barking, Havering & Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102.

[61] CPR, r 35.10(4)(b).

[62] Failure to comply with the rules may mean that the expert is prevented from giving evidence. See further Stevens v Gullis [2000] 1 All ER 527, in which the Court of Appeal upheld a judge's order prohibiting the defendant from relying upon an expert who had repeatedly failed to comply with para 1.2 of the PD to CPR, Pt 35.

[63] Field v Leeds City Council (2000) Times, 18 January.

[64] Liverpool Roman Catholic Archdiocesan Trust v David Goldberg QC [2001] 4 All ER 950.

[65] See further Larby v Thurgood [1993] PIQR 128.

[66] Bennett v Compass Group UK [2002] EWCA Civ 642.

[67] Laycock v Lagoe [1997] PIQR P518; Prescott v Bulldog Tools Ltd [1981] 3 All ER 869; and Hill v West Lancashire Health Authority (1996, April) PMILL at p 18.

[68] Rimron v Khan [1999] CLY 48, cf Tunstall v Street [1999] CLY 328.

[69] Donnelly v KD Scaffolding [1996] CLY 2114, cf Larby v Thurgood [1993] ICR 66; and Lackey v Wolfe [1998] CLY 348.

[70] [1997] PIQR P518.

[71] In Edmeades v Thames Board Mills Ltd [1969] 2 QB 67, CA; cf Cosgrove v Baker (14 December 1979, unreported), referred to in vol 1 of Kemp & Kemp at 15–038.

[72] Francom v Williams [1999] CLY 1416.

[73] James v Bailey Gibson [2002] EWCA Civ 1690.

[74] Note that this is also the preferred course in the Employment Tribunal: De Keyser Ltd v Wilson [200] IRLR 324.

[75] Note that it is possible to displace this presumption, particularly in the field of clinical negligence. See further Oxley v Penwarden [2001] Lloyd's Rep Med 347, CA; and Simms v Birmingham Health Authority [2001] Lloyd's Rep Med 382, Curtis J. However, these cases relate to liability experts, and there remains a presumption that non-medical quantum experts will be instructed on a single joint basis, even in catastrophic injury cases: Re P (a child) (6 November 2001, unreported), CA.

[76] Personal Injury Pre-action Protocol, para 2.14.

[77] Personal Injury Pre-action Protocol, para 3.15.

[78] Personal Injury Pre-action Protocol, para 3.17.

[79] [2001] EWCA Civ 511, [2001] 3 All ER 663.

[80] It should be noted that the defendant who seeks to rely upon a further expert is in a different position and will probably have to disclose any previous report before permission will be granted to rely upon another expert: Beck v Ministry of Defence [2003] EWCA Civ 1043. See further at para [C84].

[81] Mutch v Allen [2001] EWCA Civ 76; Re P (a child) [2002] 1 WLR 210, CA; Smith v Stephens (26 January 2001, unreported), QBD.

[82] However, it should be noted that the court is generally keen to curtail the use of experts in all cases under the CPR, and the use of single joint experts is not necessarily limited to smaller cases: see eg the Court of Appeal's approach in Townsend v Superdrive Motoring Ltd [2000] CLY 323, where the judge's decision was that the orthopaedic expert could also deal with the claimant's facial injuries, and either the psychiatrist or psychologist could deal with other reports if necessary.

[83] See Daniels v Walker [2000] 1 WLR 1382, per Lord Woolf at 1383g.

[84] CPR, r 35.8(2).

[85] Re P (a child) [2002] 1 WLR 210, per Lord Woolf at 216A–216B; Austen v Oxford City Council (17 April 2002, unreported), QBD.

[86] See further Topek v National Westminster Bank plc [2002] EWCA Civ 42, per Dyson LJ at [29].

[87] See Woolley v Essex CC [2006] EWCA Civ 753.

[88] [2000] PIQR P20.

[89] See CPR, r 35.8(1).

[90] See CPR, r 35.8(3), (4). By virtue of CPR, r 35.8(5), unless the court otherwise directs, the instructing parties are jointly and severally liable for the payment of the expert's fees.

[91] [2000] 1 WLR 1382.

[92] [2001] 1 WLR 1382 at 1387d.

[93] [2000] 1 WLR 1382.

[94] Although see Kay v West Midlands Strategic Health Authority LTL 1/2/2008, Lawtel Document No AC0115739, in which HHJ MacDuff QC (as he then was) refused permission to the claimant to rely upon a further expert in the field of assistive technology, even though the new expert's costings added £600,000 to the claim.

[95] [2000] 1 WLR 1382.

[96] See further Beck v Ministry of Defence [2003] EWCA Civ 1043 and at para [C84].

[97] [2001] CPLR 177. In a personal injury context, these principles were applied in Kay v West Midlands Strategic Health Authority LTL 1/2/2008, Lawtel Document No AC0115739, in which HHJ MacDuff QC (as he then was) refused permission to rely upon an alternative expert in assistive technology because there were no exceptional circumstances, the claimant had suggested the original expert and had never criticised his report, and the strong impression was that many of the items recommended by the new expert would not be recovered. The Cosgrove v Pattison principles have also been applied to the situation where a party seeks to call a second expert after the joint discussion with the opposing party's expert: see further Stallwood v (1) David and (2) Adamson [2006] EWHC 2600 (QB).

[98] See further CPR, r 35.6.

[99] CPR, r 35.6(2)(c).

[100] Support for this practice was provided in Mutch v Allen [2001] EWCA Civ 76, in which the Court of Appeal referred to the following notes in the White Book: '[r 35.6(2)(c)] is a useful provision … It enables a party to obtain clarification of a report prepared by an expert by his opponent or to arrange for a point not covered in the report (but within his expertise) to be dealt with'.

[101] CPR, r 35.6(3).

[102] [2001] EWCA Civ 76.

[103] Daniels v Walker [2000] 1 WLR 1382.

[104] See eg Avery v Gough [2001] 2 CL 38.

[105] CPR, r 35.12(1).

[106] Such a direction appears in the model draft directions for multi-track claims, and also the model directions for clinical negligence claims, in the Queen's Bench Division of the Royal Courts of Justice

[107] Hubbard v Lambeth, Southwark & Lewisham Health Authority [2001] EWCA Civ 1455.

[108] CPR, r 35.12(4). See further Robin Ellis Ltd v Mal Wright Ltd [1999] 2 WLR 745.

[109] CPR, r 35.12(5).

[110] Stallwood v (1) David and (2) Adamson [2006] EWHC 2600 (QB), applying Cosgrove v Pattison [2001] CPLR 177.

[111] See paras 18.5 and 18.6 of the Protocol for the Instruction of Experts to give Evidence in Civil Claims (the Protocol to CPR, Part 35).

[112] See further para 5(1) of the Guidelines on Experts' Discussions published by the Clinical Disputes Forum (Clinical Risk, vol 6, p 149), and para 26(d) of the Code of Guidance on Expert Evidence, published by a working party chaired by Sir Louis Blom-Cooper QC.

[113] See further the model directions for use in clinical negligence claims in the Queen's Bench Division of the Royal Courts of Justice, London

[114] Hubbard v Lambeth, Southwark & Lewisham Health Authority [2001] EWCA Civ 1455. See also para 18.8 of the Protocol for the Instruction of Experts to give Evidence in Civil Claims (the Protocol to CPR, Part 35).

[115] See eg Woodall v BUPA Hospitals Ltd (30 October 2000, unreported), QBD.

[116] Hubbard v Lambeth, Southwark & Lewisham Health Authority [2001] EWCA Civ 1455.

[117] CPR, r 35.12(3).

[118] Robin Ellis Ltd v Mal Wright Ltd [1999] 2 WLR 745; Aird v Prime Meridan Ltd [2006] EWCA Civ 1866.

[119] CPR, r 35.12(5). See further Huntley v Simmonds [2010] EWCA Civ 54.

[120] Re P (a child) (6 November 2001, unreported), CA; Smith v Stephens (16 October 2001, unreported), QBD.

[121] [1993] 2 Lloyd's Rep 68. See further Vernon v Bosley (No 2) [1999] QB 18 as regards the lawyer's duty not to mislead the court or his opponent.

[122] Carlson v Townsend [2001] EWCA Civ 511; Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[123] Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[124] Lane v Willis [1972] 1 WLR 326; Beck v Ministry of Defence [2003] EWCA Civ 1043, in which Simon Brown LJ stated: 'I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert's report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible …'.

[125] Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[126] Beck v Ministry of Defence [2003] EWCA Civ 1043.

[127] Hajigeorgiou v Vasilou [2005] EWCA Civ 236, CA.

[128] Coopers Payen Limited v Southampton Container Terminal Ltd [2003] EWCA Civ 1223; Tucker v Watt [2005] EWCA Civ 1429; Huntley v Simmonds [2010] EWCA Civ 54.

[129] See eg Woolley v Essex CC [2006] EWCA Civ 753.

[130] [2003] EWCA Civ 1223. See also Tucker v Watt [2005] EWCA Civ 1429.

[131] Following Carlson v Townsend [2001] EWCA Civ 511, [2001] 3 All ER 663, it is not improper to adopt this practice with an 'agreed' or 'jointly selected' expert under the PIPAP.

[132] Carlson v Townsend [2001] EWCA Civ 511, [2001] 3 All ER 663.

[133] CPR, r 35.11 (although it is at least arguable that the court's permission would be required to rely upon such a report by virtue of CPR, r 35.4).

[134] Jackson v Marley Davenport [2004] EWCA Civ 1225. But see further Vernon v Bosley (No 2) [1999] QB 18 regarding the duty of ongoing disclosure, particularly where the evidence changes and/or it comes to light that experts have given different opinions regarding the claimant's condition and prognosis in another context, such as in child care proceedings.

[135] For example, see Molloy v Shell UK Ltd [2001] EWCA Civ 1272; Painting v University of Oxford [2005] EWCA Civ 161; Devine v Franklin [2002] EWHC 1846 (QB); and Booth v Britannia Hotels Ltd [2002] EWCA Civ 529.

[136] LTL 19/3/2002, Lawtel Document No AC0102843, HHJ Marr-Johnson sitting as a judge of the QBD.

[137] [2001] All ER (D) 145 (Nov).

[138] Re F [1990] 2 AC 1; Airedale NHS Trust v Bland [1993] AC 789; Re C (a minor) (HIV test) [1999] 2 FLR 1004; Re A (Mental Patient: Sterilisation) [2000] 1 FLR 549; Re S (Adult Patient: Sterilisation: Patient's Best Interests) [2001] Fam 12; Re A (Children) (Conjoined Twins: Medical Treatment) [2001] Fam 147.

[139] By virtue of CPR, r 32.2(1), any fact must be proved by the evidence of witnesses by their oral evidence at trial or their written evidence at any other hearing. This is particularly important in respect of disposal hearings which, by virtue of CPR, r 32.6 and para 12.4(1)(b) of the PD to CPR, Pt 26, are to be conducted on the papers alone, unless the presence of the witnesses is requested at the hearing or the court otherwise directs.

[140] CPR, r 32.5(2).

[141] CPR, r 32.5(3).

[142] CPR, r 32.5(4).

[143] CPR, r 32.9(1).

[144] CPR, r 32.9(2).

[145] CPR, r 32.9(3), (4).

[146] See para 25.1 of the PD to CPR, Pt 32.

[147] See para 17.1 of the PD to CPR, Pt 32.

[148] See para 17.2 of the PD to CPR, Pt 32.

[149] See para 18.1 of the PD to CPR, Pt 32.

[150] See para 18.2 of the PD to CPR, Pt 32.

[151] See para 18.3 of the PD to CPR, Pt 32.

[152] See para 19.1 of the PD to CPR, Pt 32.

[153] See para 19.2 of the PD to CPR, Pt 32.

[154] See para 20.1 of the PD to CPR, Pt 32.

[155] The Court of Appeal has held that the claimant's case manager giving evidence is a witness of fact and is not bound by the usual CPR, Part 35 regime which applies to experts: Wright v Sullivan [2005] EWCA Civ 656.

[156] In Kirkman v Euro Exide Corp [2007] EWCA Civ 66, the Court of Appeal held that a witness statement from the claimant's treating surgeon was a statement of fact and did not require permission from the court, because he was not expressing expert opinion regarding what most competent surgeons would have said in the same situation; he was merely speaking for himself.

[157] CPR, r 33.2(1).

[158] CPR, r 33.2(1)(b).

[159] CPR, r 33.2(2).

[160] In a worst case scenario, a claimant who deliberately signs an incorrect statement of truth may be found guilty of contempt of court: for an example in a personal injury context where committal proceedings were brought, see further Kirk v Walton [2008] EWHC 1780 (QB); [2009] EWHC 703 (QB).

[161] See para 22.1 of the PD to CPR, Pt 32.

[162] See para 22.2 of the PD to CPR, Pt 32.

[163] Damages Act 1996, s 2A(5), as amended by Courts Act 2003, s 100.

[164] CPR, r 25.6(3).

[165] Stringman (a minor) v McArdle [1994] 1 WLR 1653. See also Tinsely v Sarker [2004] EWCA Civ 1098.

[166] See further Campbell v Mylchreest [1999] PIQR Q17, CA, per Sir John Balcombe at Q21.

[167] [1999] PIQR Q17 at Q24, CA.

[168] [1994] 1 WLR 1653.

[169] [2009] EWCA Civ 204. See further Chapter O at [O34]–[O43].

[170] See Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204 at para [38], and Braithwaite v Homerton University Hospitals NHS Foundation Trust [2008] EWHC 353 (QB).

[171] CPR, r 33.6(4).

[172] CPR, r 33.6(5)(b).

[173] CPR, r 33.6(8).

[174] Coram v Cornwall & Isles of Scilly Health Authority (16 April 1996), reported in the APIL Newsletter, vol 6, Issue 4, p 15.

[175] See eg M (a child) v Leeds Health Authority [2002] PIQR Q48 at Q50.

[176] See eg Sutton v Tesco Stores plc (30 July 2002, unreported), QBD.

[177] See eg Morgan v Millet (29 September 2000, unreported).

[178] Ford v GKR [2000] 1 WLR 1397.

[179] Uttley v Uttley [2002] PIQR P123, CA; and Booth v Britannia Hotels Ltd [2002] EWCA Civ 579.

[180] O'Leary v Tunnelcraft Ltd & Others [2009] EWHC 3438 (QB).

[181] CPR, r 32.1(2).

[182] See eg Progl v Greenstein (7 November 2002), QBD, Cox J, reported in the APIL Newsletter, vol 12, Issue 6, p 23.

[183] O'Leary v Tunnelcraft Ltd & Others [2009] EWHC 3438 (QB).

[184] R v Sang [1980] AC 402; R v Khan [1997] AC 558.

[185] Rall v Hume [2001] EWCA Civ 146, per Potter LJ at [19]: 'In principle, as it seems to me, the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the plaintiff and her medical advisors upon it, so long as this does not amount to trial by ambush'.

[186] See eg Rall v Hume [2001] EWCA Civ 146, [2001] 3 All ER 248, where video evidence showing the claimant was adduced into evidence save for any footage of the claimant within her own home or within her child's nursery. See further R v Loveridge (2001) 2 Cr App R 591; and Hesketh v Courts plc (14 May 2001), Weymouth CC, referred to in John Foy 'Videos and The Human Rights Act' [2002] JPIL, Issue 2/02.

[187] [2003] EWCA Civ 151.

[188] At [28].

[189] [2003] EWCA Civ 151.

[190] At [29] and [30].

[191] CPR, r 32.3.

[192] [2003] EWCA Civ 505.

[193] At [31].

[194] CPR, r 35.4(1).

[195] CPR, r 32.1(2).

[196] CPR, r 1.1(2)(c).

{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1247639430135", "objName" : "C Compiling the Evidence", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/book/9781847663733/PISCD-schC?null", "pageType" : "Book", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-297914be:14836c18f4c:-3afa", "analyticsSessionCookie" : "2-297914be:14836c18f4c:-3af9", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }