When expert evidence is too late


Background

Magee v Willmott [2020] EWHC 1378 (QB) concerned a claim for alleged delay in the diagnosis of bowel cancer, initially made against two GPs and a hospital trust. The judgment was on an appeal from the decision of a judge to grant permission to the claimant to rely on three new expert reports. This was despite the application for permission being made some three weeks after the date for exchange of expert evidence and several days after the experts’ joint statement was due. By that time, the claim was only being maintained against one GP. The appeal judge overturned the decision and refused the claimant the opportunity to rely on the new reports. The almost inevitable result is that the claimant’s claim will fail. 

 

‘Relief from sanctions’

No doubt, most experts are aware that every litigant needs the permission of the court to rely on expert evidence (CPR 35.13). In this case, the date for exchange of expert reports had passed and the claimant needed ‘relief from sanctions’ under CPR 3.9 because of the failure to comply with the court order for exchange (and therefore for permission to rely on the evidence). Not only had the date for the joint statement passed, but the trial had been fixed on a date six weeks after the joint statement was due, and by reason of this application the trial date had to be vacated. 

CPR 3.9 provides that in hearing an application (for relief from sanctions):

“…the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.”

Case law sets out the various steps the court must take on such an application (Denton v TH White Ltd [2014] EWCA Civ 906), which includes consideration of whether the breach against which relief is sought was serious and whether there is good reason for it. There was no dispute here that the breach was serious, and that there was no good reason for it. The explanation for the late application (and for the late obtaining of the expert evidence) appears to have been the rather fundamental one of a failure on the part of the claimant’s solicitor to address the need to assemble expert evidence to support the allegations in the claim.

Looking at the test the court had to apply in dealing with the application ‘justly’, it was clear the litigation had not been conducted efficiently by the claimant (or rather her representative) and there had been a flagrant and inexcusable failure to comply with the court’s order. The only real surprise therefore, is that the judge initially hearing the application (and who was appealed) had granted permission to rely on the new expert evidence. He had been swayed, humanely if not legalistically, by the situation that the claimant now found herself to be in through no fault of her own.  Having first been let down by the medical profession (if the allegation was proved), with a missed diagnosis of cancer, she was now let down by her solicitor. That, however, was no basis for granting the permission sought.

This case therefore illustrates the importance of complying with a court order and the serious consequences which may flow from a failure to do so. The claimant would have been in similar jeopardy had the failure to exchange reports on the required date been as a result of the failure of the expert (rather than the solicitor) to produce a report in time, or to produce the joint statement in time (See also Section 3.6 of Writing Medico-Legal Reports in Civil Claims – an essential guide).

 

Supporting the particulars of negligence

The case also illustrates a further point of interest to expert witnesses. Many of the allegations of breach of duty and of causation of loss (i.e. the allegation of negligence against the GP and the fact that negligence made a difference to outcome) which were made in the Particulars of Claim, were not supported by the meagre expert evidence that had been served. The claimant’s solicitor was attempting to plug gaps in the claimant’s case after the time for service of expert evidence had passed by seeking permission to rely on the additional further expert reports.

There is clear authority for the proposition that it is an abuse of process, which provides grounds for striking out a claim, to plead and maintain a claim in professional negligence without proper supportive evidence. A recent example of this in the context of a clinical negligence claim is Quaatey v Guy’s and St Thomas’ NHS Foundation Trust [2020] EWHC 1296(QB) (a claim where the claimant was acting in person). 

In Magee the appeal judge did not strike out the claim, taking the view that the expert evidence provided was just sufficient on which to base a claim in relation to one of the alleged breaches of duty, while at the same time indicating that the claim was extremely weak on that evidence and likely to fail.

The judge added an admonition to all legal practitioners involved in such claims, stating that they must take care to ensure the statements of case properly reflect the expert opinion and do not contain unfounded allegations. It is an important reminder to expert witnesses that they should also ensure that the statements of case (or pleadings) – that is the Particulars of Claim on the claimant’s side and the Defence on the defendant’s – accurately reflect the expert’s opinion. That opinion will relate to the breaches of duty which the expert will support (applying the Bolam/Bolitho or Montgomery test) or the opinion on causation of loss and damage or the case put on behalf of the defendant in answering those allegations. If the expert is in doubt that the statement of case reflects their opinion, then they should raise the matter with the instructing lawyer. 

There is a tendency when setting out particulars of negligence for the lawyer to seek as many ways as possible to assert more or less the same point, in order to avoid any point being taken against them that any allegation of negligence proved at trial is not properly covered by the Particulars of Claim. The expert should therefore ensure that the negligence identified by the expert, that is the failure or failures in the standard of care which the expert identifies in reaching an opinion supportive of the claim for breach of duty, is addressed in, and fully covered by, the particulars of negligence.

 

Learning points

1)  It is essential that expert witnesses comply with court directions and any timetables laid down by the court. A failure can have disastrous consequences for the party instructing the expert (with potentially expensive consequences for the expert). If the expert is not made aware of the court timetable, then this should be obtained from the instructing lawyer.

2)  An expert providing a breach of duty report in a clinical negligence claim should ensure that their advice is reflected in the party’s statement of case and, in specifically, in the particulars of negligence in the Particulars of Claim.

 

Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine.  He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations.  He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published and sold by Professional Solutions Publishing (www.prosols.co.uk) and through book retailers, and regularly writes articles on these subjects.  He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net .

Special Offer: ‘Clinical Practice and the Law – a legal primer’ (normal price £34.95) is available at £19.95 plus £4.95 p&p direct from the author by email to  geyre@9goughchambers.co.uk for a limited time.  (A retailer who normally sells at medical conferences has returned copies unsold because of the pandemic, and the offer remains while these stocks last!)  More information about the book and reviews are available at www.prosols.co.uk