CLAIMANT’S QUESTIONS TO DEFENDANT’S EXPERTS DISALLOWED: PART 35 HAS A REQUIREMENT FOR PROPORTIONALITY: EXPERTS SEEK HELP

There is another aspect of the judgment of Master Davison in In  Mustard v Flower & Ors [2019] EWHC 2623 (QB) that is of considerable interest.  The Master disallowed a series of lengthy questions to the experts.   The Master pointed out that Part 35 had been amended to introduce a requirement that the questions asked must be “proportionate”.  The claimant’s questions were not proportionate and the Master made it clear that he would not allow the questions in a modified form, further he issued a warning against the questions being re-introduced by means of the use of agendas in joint reports. Indeed he made it clear that it was unlikely that agendas were required.

“I have never before encountered a set of questions to experts even remotely approaching the scale and complexity of these and I have never known questions to provoke letters to the court from an expert or group of experts phrased in terms such as the present.”

THE CASE

The claimant brings an action for damages for personal injury. She recorded the meetings she had with the defendant’s experts. The consequences of that action are considered here. In addition the claimant’s solicitor put a large number of questions to the defendant’s experts. Six of those experts applied to court for directions.

THE JUDGMENT ON THE PART 35 QUESTIONS

The Part 35 questions
    1. The relevant part of the rule is in these terms:
“35.6 – (1) A party may put written questions about an expert’s report (which must be proportionate) to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,

unless in any case –

(i) the court gives permission; or

(ii) the other party agrees.”

    1. The rule in its original form did not include the requirement that questions must be “proportionate”. The mandatory requirement for proportionality was intended to address the practice that had arisen in some quarters of serving lengthy, complex sets of questions that were, in reality, a form of cross-examination.
    2. Mr Audland QC’s attack on the questions was that they were wholly disproportionate and that they were not for the purposes of clarification only. They ran to many, many pages and included a mass of enclosures (listed at the foot of each set of questions) comprising variously a transcript of the recording of the examination, academic or research literature, witness statements and so on. In some cases the questions and exhibits served consisted of a whole file of material. The sheer volume was unprecedented. In addition to the foregoing, the letters to the court from the experts themselves made the following points:
  • some issues would be dealt with more proportionately in the joint discussion and the joint statement that would be the outcome of that discussion;
  • some required close regard to a mass of literature (not always literature that the particular expert had referred to in his or her report);
  • to answer the questions would take many hours of work (in some cases as much as two or three working days) with costs implications that required no elaboration. Dr Torrens added that to answer the questions would result in a document as lengthy as her original report;
  • they perceived them to be cross-examination;
Mr Audland QC observed further that:
  • some questions sought to go behind matters which would be privileged;
  • some questions were based on statements by the claimant the reliability of which was likely to be tested at trial, so were premature.
    1. The initial response of the claimant’s advisers was to re-visit and modify the questions. In some cases the question was withdrawn; in others the question was followed by some words of explanation as to its basis or what had prompted it; in others the expert was given the option, if preferred, of leaving the question to be dealt with in cross-examination at trial. By way of further modification or concession, the claimant’s advisers’ position by the time of the hearing was that the defendant’s experts should answer those questions which they felt appropriate to answer and in other cases should decline to answer, but giving reasons so that the claimant’s advisers could then consider whether or not to press the question by way of an application for an order. There was some support for such an approach in the notes to CPR 35.6 in the White Book, which said that if an expert received a set of questions which (s)he considered went beyond the spirit of the rule, the right approach was to “answer the clearly relevant questions and only to decline to answer the remainder if (i) to do so would be clearly prejudicial to the instructing party’s position, or, (ii) the time and cost of replying to the questions was disproportionate”. Mr Audland QC’s response to these modifications was that they did not answer the basic objections to the questions and quite impermissibly placed a burden on the experts to decide what were and were not proper questions.
    2. In his submissions, Mr Grant pointed out that the expert evidence was detailed and complex (running to some 900 pages). It was therefore scarcely surprising that the claimant’s questions were also detailed and complex. A significant component of the questions dealt with an oversight on the part of the defendant’s experts, which was that they had not clarified their opinions in the light of the expert evidence which dealt with the speed of the collision – an important point in the case. They had not, he submitted, dealt or dealt sufficiently with the claimant’s pre-existing vulnerability or with a crucial letter from the hospital which treated her in the aftermath of the collision and which supported her case that she had suffered a sub-arachnoid haemorrhage as a direct consequence. (He separately observed, with justification, that this letter, albeit helpful, had been improperly obtained by the defendant and then simply listed as an anonymous document at item 25 of their list for the claimant to discover – conduct which did not reflect well upon the defendant.) Mr Grant drew attention to the authority of Mutch v Allen [2001] EWCA Civ 76. In that case the Court of Appeal allowed a question to the claimant’s expert which went beyond simple clarification. (Mr Audland QC and Mr Grant referred to this type of question as a “question by way of extension”.) This authority does not, to my mind, take matters much further in that it is clear from the rule itself that such questions may, in a proper case, be put by agreement or with the court’s permission. Lastly, Mr Grant took me skilfully through a representative section of the questions. He submitted that the questions were relevant, that they were carefully and moderately drafted and that they would elicit evidence in a way that was collaborative, expeditious and cost-effective.
Discussion
  1. Notwithstanding the cost and effort that have gone into the questions and notwithstanding that the motives of Mr Dickinson and Mr Grant have simply been to advance their client’s case to the best of their ability, it is obvious that I should disallow the questions. I do so essentially for the reasons offered by Mr Audland QC. As I observed to him at the hearing, I have never before encountered a set of questions to experts even remotely approaching the scale and complexity of these and I have never known questions to provoke letters to the court from an expert or group of experts phrased in terms such as the present. (Indeed, letters of any kind from experts to the court seeking directions under CPR rule 35.14 are very rare. I consulted the longest serving Master, Master Yoxall, on this matter. He had received questions from an expert on just two occasions in 18 years.) I acknowledge that the questions are relevant. I acknowledge also that in part they address what are accepted to be areas of omission in the defendant’s experts’ reports. But none of this changes the plain facts that the questions (i) are wholly disproportionate, (ii) are overwhelmingly not for the purposes of clarification and (iii) amount to cross-examination. Where there are omissions in the experts’ reports, these are, in this case, best addressed by supplementary reports and/or by the process of joint meetings and joint statements. Such reports and joint statements are likely to render whole swathes of the questions redundant, (which is, of course, an additional reason why questions such as the present ones are discouraged). As to the claimant’s modifications to the questions, I agree with Mr Audland QC that it is undesirable that the experts themselves should be forced to make a value judgment about the appropriateness or proportionality of a question, or set of questions, before choosing whether to answer. It is equally undesirable that they should have to formulate and express reasons why they choose not to answer. Questions should not be framed in a way that requires such judgments or explanations, which are the province of the lawyers not the experts. To the extent that the commentary to CPR 35.6 suggests otherwise, I respectfully disagree. (Although it does not arise in this case, I disagree also with the proposition that an expert could refuse to answer a question because it was “prejudicial to the instructing party’s position”. If a question was relevant, proportionate and for clarification only, then the fact that the answer might be prejudicial to the expert’s instructing party’s position would be no reason at all to decline to respond.)
  2. Although Mr Grant, understandably, did not invite it, I have considered whether I should embark on some sort of process of editing and refining the questions so as to bring them within the scope and spirit of the rule. I have decided not to do so. As already noted, many of the questions will likely be answered by a different route and in a different format in due course anyway. But even if that were not the case, the questions are wholly disproportionate and it is not appropriate to attempt a rescue operation, which would certainly be contentious and involve further cost and delay. In the context of this claim and of litigation more generally, the policy interest in discouraging questions such as these is better served by giving them a swift and decisive quietus.
  3. When it comes to drawing up the order reflecting this judgment, I invite the parties to consider a further matter. This is that I would wish to avoid these questions finding further life and expression in any agenda for the joint meetings of the experts. The directions do not, in fact, provide for agendas. (Even in those cases where they do, they are never mandatory.) My provisional view is that there should be no agendas unless the experts, with reason, ask for them and, in that case, they should be drafted in the most direct and concise language.