In the judgment this morning in Chaplin v Ben Pistol Allianz Insurance Plc [2020] EWHC 1543 (QB) Jay J rejected an application by the defendant to rely on expert evidence in relation to life expectancy.    This judgment is important on a number of issues: (i) the need for a party to appeal an order it doesn’t like rather than come along later and argue a “change of circumstances”; (ii) the use of statistical evidence in relation to life expectancy; (iii) the timing of applications of this kind.  It is also interesting to see the quite extraordinary argument that the proposed expert could rely on unpublished and non-peer reviewed data, which the claimant’s experts could not see, but which – the defendant argued – the claimant would be bound to accept it as “authoritative and reliable”.

“In the light of these provisions, which reflect no more than the basic principle that a party aggrieved by a court order must either appeal it or demonstrate a change in circumstances since it was made, Mr Weir submitted that it is incumbent on the Defendant to show a “relevant and sufficient” change in circumstances since July 2019. I accept that formulation.”


The claimant suffered severe traumatic injuries in a road traffic accident. His life expectancy has been severely reduced.  The medical experts in the case gave evidence, in broadly similar terms, in relation to the claimant’s life expectancy.


At a CMC in July 2019 the defendant applied for permission to rely on an additional expert in relation to life expectancy. That application was refused.

On 18th July 2019 there was a second CMC before Master Eastman. The Defendant applied for permission to rely on expert evidence in the field of statistics, perhaps more precisely medical statistics, in the form of a report co-authored by Professor Strauss and Dr Jordan Brooks dated 28th June 2019. Master Eastman refused the application and there was no appeal. I will be returning to what happened at that hearing in due course.


The existing medical evidence had a degree of unanimity in relation to life expectation.

Life expectancy and epilepsy

The experts find that their estimates are quite close, with Professor Collin suggesting 30 – 35% of normal life expectancy, and Dr Liu suggesting 35 – 40% of normal life expectancy, and they have decided to refer the Court to their individual reports and predictions. Professor Collin’s predictions span a range of 14.4 years (Collin; National Life tables) to 19 years (Collin; Ogden) and Dr Liu’s span a range of 19 – 23 years. (Liu; Ogden) They agree the risk of seizure continues to diminish, currently about 8%, reducing to 2% at ten years and continuing to fall slowly.”



The defendant made a further application for permission to rely on the evidence of Professor Strauss. The judge considered the basis upon which the application was being made.  The defendant argued that there had had been a “change of circumstances”, the claimant submitted that there had not.   The defendant’s arguments did not find favour with the judge.

    1. Mr Browne’s point of departure, quite understandably, was that Professor Strauss could give relevant and authoritative evidence on an important issue in this case, and that on analysis the Claimant was not prejudiced by the timing of this application. As I have made clear, Mr Browne also submitted that there had been a significant change of circumstances. Mr Robert Weir QC for the Claimant took a rather different starting-point: the Defendant did not appeal Master Eastman’s order, and whether that was right or not (he did not put it that way) there has been no relevant or sufficient change in circumstances.
    2. Unless I start from the right place there is a high risk that I will arrive at the wrong destination. I am entirely satisfied that Mr Weir’s submission is correct. He drew my attention to CPR 29PD6 which provides in material part as follows:

Variation of directions

6.1 This paragraph deals with the procedure to be adopted:

(1) where a party is dissatisfied with a direction given by the court,

(3) where a party wishes to apply to vary a direction.


(1) It is essential that any party who wishes to have a direction varied takes steps to do so as soon as possible.

(2) The court will assume for the purposes of any later application that a party who did not appeal, and who made no application to vary within 14 days of service of the order containing the directions, was content that they were correct in the circumstances then existing.


(1) Where a party is dissatisfied with a direction given or other order made by the court he may appeal or apply to the court for it to reconsider its decision.

(2) Unless paragraph 6.4 applies, a party should appeal if the direction was given or the order was made at a hearing at which he was present, or of which he had due notice.

(3) In any other case he should apply to the court to reconsider its decision.

(4) If an application is made for the court to reconsider its decision:

(a) it will usually be heard by the judge who gave the directions or another judge of the same level,

(b) the court will give all parties at least 3 days notice of the hearing, and

(c) the court may confirm its directions or make a different order.

6.4 Where there has been a change in the circumstances since the order was made the court may set aside or vary a direction it has given. It may do so on application or on its own initiative.”

    1. In the light of these provisions, which reflect no more than the basic principle that a party aggrieved by a court order must either appeal it or demonstrate a change in circumstances since it was made, Mr Weir submitted that it is incumbent on the Defendant to show a “relevant and sufficient” change in circumstances since July 2019. I accept that formulation.
    2. Dr Liu’s position has always been that the Claimant’s case falls somewhere between the cohorts considered by the Californian group in 2007 and 2015. Professor Collin’s position has always been that the Claimant’s condition was better than the 2007 cohort. In March 2019, without making the point explicit, she was prepared to accept the possibility that the Claimant’s condition might improve to the extent that he fell within the “does not walk, fed by others” cohort considered in 2015, but by May 2020 she had concluded that this would not happen. Her final position is that the Claimant’s case falls somewhere between the two cohorts. It was submitted before Master Eastman that the difference between the ranges given by the neurological experts is explicable on the basis that their clinical judgments vary as to the Claimant’s current condition. In my judgment, that was indeed the main reason for this divergence but the possibility cannot be excluded that the experts have interpreted the relevant Californian papers slightly differently. If that be the case, however, it was as much the case in July 2019 as it is now.
    3. Professor Collin now says that “if the Court requires an accurate estimate based on more detailed stratification etc.” then Professor Strauss et al could be approached to provide it. Mr Weir makes the point that Professor Collin could have written exactly the same words in March 2019, or by way of letter before the July 2019 CMC, and in my judgment that must be right. Nothing has changed since last year, and Professor Collin must have been aware of the existence of the unpublished data even if she was not shown a copy of the Strauss/Brooks June 2019 report.
    4. In fact, the Strauss/Brooks joint report takes a rather different approach from the neurologists. Instead of seeking to calibrate the Claimant’s case on a notional scale between the 2007 and 2015 cohorts, it effectively abandons the continuing saliency of the Shavelle et al paper and draws attention to further unpublished material which should be read in conjunction with the 2015 paper. This material does not impact on the vegetative state data; rather, it serves to bring the 44% figure right down to 27%. Furthermore, there are other recent papers which point in a similar direction.
    5. It follows, in my judgment, that the large measure of methodological consensus achieved by the neurological experts would have been fundamentally and radically upset by the Strauss/Brooks joint report, assuming that it was admitted. In fact, this was not the reason for Master Eastman refusing the Defendant’s application. To my mind, that is not a factor capable of availing the Defendant on its current application. In any case, Master Eastman cannot be criticised for analysing the issues as joined between the neurological experts and concluding that the differences between them were largely explicable in terms of different clinical judgments.
    6. The same essential reasoning applies to the life expectancy tables. Professor Collin has always favoured the period life tables and has explained why; Dr Liu has always favoured the projected life tables although he has not, as yet, explained why. Master Eastman was aware in July 2019 that the Strauss/Brooks joint report supported Professor Collin, and nothing has changed since then.
    7. These reasons are sufficient to dispose of the Defendant’s application, but in deference to Counsels’ detailed and able submissions I should address the question of whether, if this matter had come before me shorn of any antecedent judicial decision, Professor Strauss’ evidence should be understood as reasonably required for the purposes of CPR r.35.1.
    8. Evidence from a medical statistician is, in principle, admissible although ordinarily it should be seen as the starting-point for the clinical judgments made by medical witnesses: see The Royal Victoria Infirmary & Associated Hospitals NHS Trust v B (A Child) [2002] EWCA Civ 348, at paras 20 and 39 in particular. In my experience medical experts are usually well able to apply and interpret quite complex statistical evidence which can be admitted as hearsay (particularly if set out in a published paper which has been peer-reviewed) without the need to call probative or explanatory evidence.
    9. At para 19 of his judgment in Dodds v Arif [2019] EWHC 1512 (QB), Master Davison summarised the effect of the authorities, in my view accurately, as follows:

“For these reasons, it seems to me that bespoke life expectancy evidence from an expert in that field should be confined to cases where the relevant clinical experts cannot offer an opinion at all or state that they require specific input from a life expectancy expert (see e.g. Mays v Drive Force (UK) Limited [2019] EWHC 5), or where they deploy, or wish to deploy statistical material, but disagree on the correct approach to it. This case does not, or does not yet, fall into any of these categories.”

    1. Both neurological experts have expressed themselves able, without qualification or equivocation, to proffer evidence on life expectancy in this case. The recent joint report makes that clear, as it does the relatively narrow gap between them – explained, in the main, by their different clinical assessments of the Claimant. Mr Weir has commented on Professor Collin’s use of the conjunction “if” in her May 2020 report, and he is entitled to submit that she does not say in terms that specific input is required. On my reading of this paragraph, she is saying that this input is desirable because it would give court greater confidence in its conclusions. However, courts are well used to deciding cases on the basis of evidence which is adequate but not optimal, and I have to say that a strong countervailing consideration in the instant case is the one to which I have already alluded: Professor Strauss’ evidence, assuming that it does not depart materially from the June 2019 joint report, would fundamentally undermine both parties’ neurological evidence. If the Defendant wishes to proceed in this manner, I consider that this path should have been staked out at a much earlier stage in the litigation so that the medical experts could have addressed this radical evidence before committing themselves to their conclusions.
    2. Furthermore, it is unclear whether Professor Strauss would be prepared to disclose his group’s unpublished data within the context of these proceedings. I note that these data have not been peer-reviewed and were not appended to last year’s joint report. There would be an obvious unfairness inherent in one party’s expert relying on data which the opposing party is unable to examine.
    3. Mr Browne submitted that the neurologists are not in agreement as to the correct approach to the statistical evidence. The answer to this submission is that they are in substantial agreement provided one excludes from consideration the unpublished data. To the extent that there may be differences of nuance or emphasis, I consider that both experts are well-qualified to explain their respective positions to the court without the need for formal evidence from a statistician. That is a course that has been followed without difficulty in numerous cases of this sort.
    4. Had the matter come before me with a notional clean slate in, say, July 2019, I would have concluded that evidence from Professor Strauss was not reasonably required for the purposes of CPR r.35.1.
    5. The final question is whether this evidence should in any event be excluded in the exercise of my discretion as coming too late in the day.
    6. As Stewart J explained in Taleb v Imperial College Healthcare NHS Trust [2020] EWHC 1147 (QB), applications of this nature fall to be determined in line with the overriding objective rather than the principles governing relief from sanctions.
    7. The premise for my consideration of the overriding objective must be made explicit. I should proceed on the basis that I am wrong in my conclusion that the Defendant has failed to show a relevant and sufficient change in circumstances. If the position were otherwise, it would be unnecessary to address this point.
    8. There are powerful reasons in preserving the October 2020 trial date. I am told that the Claimant’s mother and litigation friend has lost her husband to cancer and is devoted to her son. I agree that any adjournment would be intolerable. If Professor Strauss’ report were admitted, I cannot accept Mr Browne’s submission that the Claimant would and should have little option but to accept it as authoritative and reliable. Assuming that new data were provided, the Claimant would be entitled to have it subjected to appropriate scrutiny by an expert in medical statistics; it would not have to be taken as Gospel. I agree with Mr Weir that the identification and instruction of such an expert would take time, that the dates for the Schedules and Counter-Schedules would be put back (if necessary, the Claimant could always serve an amended Schedule, but that would occasion delay), that the JSM would have to be adjourned, and that there would be an unacceptable jeopardy to the trial date. The Claimant could of course avoid that risk by agreeing Professor Strauss’ evidence, but there is no good reason why those advising him should be placed in that position.
  1. This application for permission to rely on expert evidence from Professor Strauss is refused.