EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”

There are several passages in the judgment of Mrs Justice Yip in  David John Saunders  -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports.  That is the problematic “agenda”. A  document that is supposed to be neutral and non-confrontational can be seen by the parties as the first stage of cross-examination.

“The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned.”

“The agenda must not be in the form of leading questions or hostile in tone.“

THE CASE

The judge was deciding a clinical negligence action, arising from surgery to reverse an ileostomy.

THE EXPERTS

The judge commented on the high standard and presentation of the expert reports in the case.   However she was less complimentary about the joint report.

“The experts’ joint statement

1. Both experts provided clear reports that were easy to read; thorough and attractively presented with useful diagrams attached. However, their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but through the way in which the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.

2. I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned. Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. Frankly, the approach to the joint statement in this case achieved nothing of value.”

THE MEETING BETWEEN EXPERTS

The best guidance on this issue is in the Civil Justice Council Guidance for the instruction of experts in civil claims

71. The purpose of discussions between experts should be, wherever
possible, to:
a. identify and discuss the expert issues in the proceedings;
b. reach agreed opinions on those issues, and, if that is not possible,
narrow the issues;
c. identify those issues on which they agree and disagree and
summarise their reasons for disagreement on any issue; and
d. identify what action, if any, may be taken to resolve any of the
outstanding issues between the parties.
They are not to seek to settle the proceedings.

THE AGENDA

Guidance as the form of the Agenda is given in PD 35

“9.3 Where the experts are to meet, the parties must discuss and if possible agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone.”

MORE DETAILED GUIDANCE AS TO THE CONTENTS OF THE AGENDA

In relation to the drafting of the agenda the Civil Justice Council Guidance states:

74. Arrangements for discussions between experts should be proportionate to the value of cases. In small claims and fast-tracks cases there should not normally be face to face meetings between experts: telephone discussion or an exchange of letters should usually suffice. In multi-track cases discussion may be face to face but the practicalities or the proportionality principle may require discussions to be by telephone or video-conference.

75. In multi-track cases the parties, their lawyers and experts should cooperate to produce an agenda for any discussion between experts, although primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors.

76. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute. It is often helpful to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion.

77. Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts’ competence. Experts are not permitted to accept such instructions.

NOTE THAT: IF THE PARTIES CANNOT AGREE THE COURT CAN RESOLVE THE MATTER

Note the Guidance “… the court may give directions for the drawing up of the agenda”.  It the issue cannot be resolved then it may be necessary to apply to court.