NON-COMPLIANCE WITH ORDER FOR EXPERT EVIDENCE AND THE CLAIMANT’S APPLICATION GOES UP IN SMOKE…
Possibly the most difficult position you could put yourself in in litigation is for the court to make an order, do something the court did not allow, not get permission in advance, and then seek relief from sanctions thereafter. This was the position facing the claimant in Tully v Exterion Media (UK) Ltd & Anor  EWHC 1119 (QB), Master McCloud. The claimant took steps outside the ambit of a court order and was not successful in an application for relief from sanctions. (There are interesting comments on video evidence and the the “Rockford files” and I will deal with these in a later post).
“I need not summarise either Mitchell or the Denton case the names of which are by now as ingrained passively in the paintwork of E117 as the smoke of long departed past Masters preceding me.”
The issue was encapsulated by the Master in the first paragraph of the judgment.
“Can a Claimant who has permission to ‘further exchange … expert medical reports … limited to issues arising from … surveillance footage and the Claimant’s witness statement‘, in circumstances such as those which apply in this case, proceed to instruct their expert to conduct a re-examination of the Claimant and produce an updating report which deals generally with the Claimant’s medical position as well as addressing the surveillance footage and witness statement? Or is the Claimant limited to simply producing a report limited to the issues arising from the surveillance evidence and the Claimant’s explanatory statement?”
The claimant brings an action for personal injury damages. When medical reports were served the claimant relied on a somewhat dated but the claimant informed his solicitors that his position had not changed. Once medical reports were obtained the defendants served surveillance evidence which, the defendants allege, show the claimant doing more than he said he could do.
THE COURT ORDER
The parties then agreed directions which allowed them to respond to the surveillance evidence.
The fact that surveillance evidence had been served changed matters so that the first, and perfectly usual, thing to ensure was that the Claimant having now seen the surveillance, had a fair opportunity to respond to it by way of an extra witness statement with his account of what it showed and so that any relevant experts could be shown the footage and the Claimant’s explanatory statement and asked to comment on the issues raised by those in relation to the content of their reports which had been written without knowledge of it.
Sensibly the parties agreed a consent order by which I vacated the CCMC on terms that by 4pm on 9 November 2018 the Claimant was to serve a statement responding to the surveillance footage and that there was to be a further exchange of expert reports in both specialisms on both sides “limited to issues arising from the surveillance footage and the Claimant’s witness statement“ by 4pm on 14 December 2018. Joint meeting was then to take place, joint reports and a further CCMC.
THE CLAIMANT’S STEPS THEREAFTER
The difficulty was that the claimant then took steps and obtained expert evidence that went beyond the terms of the order. Obtaining a report based on a fresh examination rather than a report than simply related to the footage and witness statement.
“Prior to expiry of the deadline for further evidence on 28 September 2018, I considered whether I required the Claimant to be re-examined by Mr Unwin in accordance with the original directions order and took the view that because Mr Unwin had reached a firm diagnosis and that as far as I was concerned, the Claimant’s situation had stayed more or less the same … I did not see any value in having the Claimant re-examined“.
Notably the Claimant’s solicitor made that decision without consulting Mr Unwin as to whether (given the age of his original report and the availability of for example the witness statements in the case) he might have wanted to update his report.
There are then in evidence various complaints that the surveillance was served without warning, etc, which I attach no weight to and which seem to be a misunderstanding of the correct approach in relation to such material, which was handled appropriately by the Defendants.
He then says he was “faced with a difficult decision to make” because the CCMC on 19 October 2018 would have limited benefit until the Claimant had had opportunity to respond to the surveillance. Hence the consent order referred to above was agreed by which the parties were permitted to serve new reports limited to the issues arising from the surveillance and the Claimant was permitted to serve an explanatory statement to be seen by the experts.
So far, so conventional. This is how one would expect matters to proceed in the circumstances. There was no argument or suggestion, now that the deadline for doing so had expired, that the Claimant would need to re-open the permission to obtain an updating report on the Claimant’s medical condition of the sort which had been allowed in the CCMC order with a deadline of 28 September 2018.
It is in relation to what happened next that the roots of the dispute arise. Mr Denton explains that “Shortly after the sealed consent order was signed, I contacted Mr Unwin to inform him that the Defendants had served surveillance evidence and medical evidence. I advised him that the surveillance evidence revealed that the Claimant was moving more freely than he had done at the time of Mr Unwin’s examination in March 2017 and that Mr Cobb felt that Mr Unwin’s diagnosis… was either wrong, or alternatively the Claimant had made a full recovery …“
He continues to then say that Mr Unwin “told me emphatically that he would need to re-examine the knee and review up to date radiology because the diagnosis could be confirmed or refused by reference to both; he explained that was necessary for him to be able to discharge his duty to the Court.“
Mr Unwin has produced a letter to Mr Denton in which he states that he was (a) given the surveillance evidence, (b) given a copy of Mr Cobb’s report and (c) that he was contacted by Mr Denton to ask whether he “was able to adequately comment on both the surveillance evidence and also the medico-legal evidence of Mr Cobb.” and that “I confirm that I replied that because of the significant discrepancy between the objective clinical findings at the time of my first report in March 2017, and the findings of the surveillance evidence and Mr Cobb’s objective findings, that I was not able to do so without further interview and examination of Mr Tully, and could therefore not confirm or refute the Defendant [sic] evidence without further review and examination of Mr Tully, and thus could not discharge my duties to the Court without a further assessment.“
THE CLAIMANT WENT BEYOND THE SCOPE OF THE ORDER
The defendant argued that the “new” medical evidence went outside the scope of the order. The claimant did not agree. The Master held that the new evidence went outside the scope of the order.
“I do not feel that Walker v Daniels assists here beyond the point that the Overriding Objective says what it says. This is not a case of a party wanting a new expert and being disaffected. Rather this is a case of a party having not made use of a right to obtain an updated report from an expert in which it has confidence and arguing that so as to retain confidence the Claimant wants (after the event) to obtain the updated report which he had originally elected not to obtain. If such an approach were held generally then there would be widespread re-instruction of experts ‘ad hoc’ without the court controlling how much expert evidence is appropriate and the timing of when it has to be obtained and on what issues.”
THE MASTER’S DECISION ON THE CLAIMANT’S APPLICATION FOR RELIEF FROM SANCTIONS
The Master did indicate that
Relief from sanctions has been sought in the event that I am of the view that the order was breached, as I am. The nature of the breach is ambiguous in the application, and it became apparent that the Claimant would like me both to consider relief from the original failure to serve a full update by the deadline in September 2018 and in the alternative relief against the fact that the report served under my limited permission in respect of surveillance was not compliant with the limits of the order.
I need not summarise either Mitchell or the Denton case the names of which are by now as ingrained passively in the paintwork of E117 as the smoke of long departed past Masters preceding me. Was there a breach? Yes. The breach is that the report of Mr Unwin exceeds the permission which I granted after the service of the surveillance footage. The omission to serve a full updating report back in September 2018 is not in my view a breach, it is simply that permission lapsed once the time had expired and the rules do not permit expert reports without permission. Nonetheless rather as is the case with the CPR rules relating to witness statements, service of a late statement requires consideration of much the same factors as one would consider on a relief application.
Was the breach trivial or not material? No. Once the full updated Unwin report was commissioned the impact on fairness was considerable. The effect of what occurred was to achieve sequential service and to ensure that the examination of the Claimant took place with knowledge of the surveillance (which self-evidently would not have been the case if the update had been obtained, in accordance with permission in September 2018). The Defendant is entitled to have relied on the Claimant having made his evidential and expert case clear and final, prior to the revealing of the surveillance footage, as was the plain purpose of the directions made. After surveillance is served it might sometimes be appropriate for a re-examination to take place, if permission is sought and obtained for it after the surveillance is revealed, but in that event firstly the court retains control (which it lost here) and secondly the product of such a new examination is able to be compared with any substantive update prior to the surveillance disclosure (which is now not possible). Mr Howard’s report, based on instructions containing impermissible material is itself also served in breach (by being out of scope of the order) and that too is a serious breach.
Was there good reason for the breach? No. I accept that Mr Denton acted in the way he felt was correct and there was nothing tactical or underhand here, but it was simply incorrect in my view to have proceeded with the substantive instruction to Mr Unwin in this form without returning to court to explore what if any late permission could be granted and how, prior to any mention of surveillance to the expert. The original decision not to obtain a substantive update before the surveillance was plainly not a mistake and was a deliberate choice.
Should relief be granted in all the circumstances? The impact on fairness here is in my view substantial for reasons already stated, as is the use of resources which we have had to deploy to consider the issues. The ultimate trial timetable will be delayed. It would be unfair to the Defendant to allow the reports of Mr Unwin and Dr Howard to be relied upon as they are in all the circumstances. I would be prepared to hear argument over whether some order such as allowing solely the paragraphs of Mr Unwin’s report which cover the surveillance to stand since they are quite separate parts, and to consider allowing a new psychiatrist to be instructed in place of Dr Howard, without knowledge of the surveillance. But there may be arguments to the contrary and I have not heard specific points on that. I therefore refuse both applications in their fullest sense but am prepared to consider limited relief as suggested in this paragraph.
VIDEO EVIDENCE IS NOT THE ROCKFORD FILES
I have put this out of order, but it is worth reading the first parts of the Master’s judgment.
Can a Claimant who has permission to ‘further exchange … expert medical reports … limited to issues arising from … surveillance footage and the Claimant’s witness statement‘, in circumstances such as those which apply in this case, proceed to instruct their expert to conduct a re-examination of the Claimant and produce an updating report which deals generally with the Claimant’s medical position as well as addressing the surveillance footage and witness statement? Or is the Claimant limited to simply producing a report limited to the issues arising from the surveillance evidence and the Claimant’s explanatory statement?
I will need to unpack the above somewhat by reference to the specific sequence of events in this case. It is an important disagreement because at the heart of it is the general practice in personal injury cases that once a party has finally pinned him- or herself down evidentially, the Defendant can expect to be able then to serve any covert surveillance material in the anticipation that what will happen is, usually, a process mainly focussed on the Claimant’s explanation for what the footage shows and an indication whether the experts’ views have changed as a result and in what ways.
The Claimant is normally entitled to say that ‘things are not always what they seem‘, to resurrect Phaedrus, in response to the footage. Yet speaking from experience, much of the time surveillance footage is very much how it seems, which is to say equivocal. It is seldom ‘the Rockford Files‘ and more often closer to ‘slow TV‘. Then again sometimes it is indeed conclusive. I have not needed to view it in this case. Frequently such films show shopping trips on foot: this I understand is an example of that genre.
Before I address the issues, I simply mention CPR 35.1 (expert evidence restricted to that which is reasonably required), CPR 35.3 (that it is the duty of experts to help the court on matters within their expertise), CPR 35.4(1) (that no party may call an expert or put in evidence an expert’s report without the court’s permission), CPR 35.13 (a party who fails to disclose an expert’s report may not use it without permission), and CPR 35.16(1) (by which experts may make written requests to the court for directions for the purpose of assisting them in carrying out their functions). I also of course mention the Overriding Objective set out in CPR Part 1.
[For all those who wish to know who (or what) Phaedrus is there is an explanation here)