An earlier post commented on how rare it was for appeals to take place in relation to the instruction of experts. John McQuater of Atherton Godfrey has kindly sent me two examples of appeals on the issue of experts.

(Both of these reports are attached to this post. Click on the case name).

Clark  -v- Wilson

In Clark -v- Wilson (24th May 2014, Sheffield County Court) His Honour Judge Robinson allowed an appeal by a claimant in relation to permission to use a second medical expert. A district judge had refused permission to rely on a second expert in relation to a back injury. The appeal was allowed because the district judge did not refer to the evidence, in the second report, of a spinal cord injury.

Bortniczak -v- Fresh-Pak Chilled Foods Ltd

This was a decision of HH Judge Robinson (Sheffield CC 8th July 2011). The claimant made an application for permission to adduce expert evidence in a personal injury action relating to the adequacy of the the guarding of moving machinery.

  • The claimants made an application to adduce expert evidence at a time when no evidence was available. That application was refused by a deputy district judge.
  • The claimants then obtained a report and applied for permission to rely upon that specific report.
  • The district judge who then heard the application held that the correct course would have been to appeal the original decision of the deputy district judge. Application to rely upon the report was refused.

The judge held that the district judge was wrong to find that he could not essentially overrule or vary the case management decision of the District Judge.  he referred to the case of Fox -v- Foundation Piling Group Ltd [2011] EWCA Civ 790.

  • CPR 3.1.(7) gives a power to revoke or vary an order.
  • That power was wide enough to give the district judge to consider the claimant’s application on its merits.
  • The report in question was definitely capable of assisting the judge.
  • There was no doubt that the trial judge would be assisted by the report.

The Circuit Judge exercised his discretion de novo and allowed the appeal.