EXPERTS, LAWYERS AND THE JOINT-REPORT (1): JUST ONE AGENDA PLEASE

Curiously there are two cases today that deal with the role of lawyers and the joint report.  The first I will look at is  the judgment of Mrs Justice Yip in Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917 (QB).

THE CASE

The claimant bought a clinical negligence action against the defendant.  There had been a joint meeting of experts and a joint report.  The judge was not best pleased with the document produced.

THE JUDGE’S OBSERVATIONS ON THE JOINT STATEMENTS

    1. As I observed during the trial, the joint statements in this case were not as useful as they might have been. The difficulty was caused by the inability of the parties to agree a single agenda for the experts’ consideration. This is not the first time that I have expressed concern about this and counsel confirmed that it is a problem that appears to be arising more frequently. When I enquired as to why that might be, Mr Counsell, having sought instructions, referred to the model directions for clinical negligence actions which provide for the claimant’s solicitors and experts to prepare a draft agenda to be sent to the defendant’s solicitors for comment and for the defendant to then agree the agenda or propose amendments within 21 days. Paragraph 13 of the model order says:
“7 days thereafter all solicitors shall use their best endeavours to agree the Agenda. Points of disagreement should be on matters of real substance and not semantics or on matters the experts could resolve of their own accord at the discussion. In default of agreement, both versions shall be considered at the discussions. …”
  1. It was suggested that the form of the model order encourages more than one agenda to be sent to the experts. I cannot agree with this. The standard direction makes it clear that the solicitors are required to do their best to agree a single agenda. In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take. It may be appropriate to insert some additional questions into the draft at the defendant’s request. It certainly should not become routine to provide two versions which, as here, travel over much of the same ground. That approach tests the patience of the experts (and frankly of the court); produces a lengthier joint statement; potentially increases costs and is simply not the best way to focus on the issues. I do not think that anything further needs to be said or done in this case. However, if this worrying trend continues, parties may find that courts begin considering costs consequences.