NO NEED TO CALL CLAIMANT’S MEDICAL EXPERT IN A FAST TRACK TRIAL: MUST BE A GOOD REASON TO DEPART FROM THE NORMAL PROCEDURE

I am grateful to Claire Haley from Aegis Legal for sending me a copy of the judgement of HHJ Freedman in Taylor -v- TUI UK Limited (County Court at Newcastle 22nd January 2021).  The judge overturned a decision that the claimant’s expert in a fast track holiday food poisoning case should attend trial.  A copy of the judgment is available here. Taylor v TUI UK Ltd – Newcastle CC – Judgment – 20210122 V Final

 

 

“It is not enough in the context of a fast track claim, with a value limited to £3,000, merely to assert that unless a defendant is given the opportunity to try and shake or displace the conclusion reached by an expert instructed on behalf of the claimant the judicial process is somehow rendered unfair.”

THE CASE

The claimant brought an action alleging she suffered from food poisoning on holiday.  She adduced expert  medical evidence in support. The defendant asked Part 18 quesions of the expert. There was no direction that the expert attend trial.  The trial date was adjourned due to Covid. The defendant obtained an order the from the District Judge that the claimant’s expert attend court and the defendant be given permission to call the claimant’s expert at trial. The claimant appealed and HHJ Freedman was hearing that appeal.

THE EXPERT EVIDENCE

The judge observed that there was nothing, on the face of matters, that indicated that the claimant’s expert was anything other than objective.

“I should add that the report provided by Dr Al Shamas was fully CPR compliant and he made it clear that it was an independent objective report. It contained the usual declaration of truth; and that he was preparing the report for the court and not for a particular party.”

THE FLAWED NATURE OF THE DEFENDANT’S APPLICATION

The judge was clear that the initial application by the defendant was flawed.   The application should have been to direct that the claimant’s expert give evidence at trial, not for the defendant to call that expert.

“What I am very clear about is that the application itself was flawed because there is no power conferred by CPR 28.4 which permits the court, on the application by one party, to compel an expert, instructed by the opposing party, to attend at Trial. Nor was the application, in reality, an application that the respondent be asked to be permitted to call the appellant’s expert to give oral evidence at trial. What was being sought was permission to cross-examine the appellant’s expert. Plainly, however, for the respondent to be permitted to cross-examine the appellant’s expert, the order had to direct that the appellant call his expert to give evidence at trial. I say no more about the court’s powers and I am not intending to decide this appeal on the basis that says the court did not have the requisite jurisdiction to make the order; I simply observe that there does not appear to be any express rule permitting the court to make the order sought.”

THE ARGUMENTS

The respondent defendant relied on the decision Griffiths v TUI UK Limited [2020] EWHC 268 QBD.  However the judge observed that the current case was quite different.
8. Mr Edge says that that makes it clear that a defendant can apply, in these circumstances, for an expert to attend to be cross-examined. As I say, that might well be right, but Martin Spencer J does not refer to any specific provision within the CPR that confers such a power on the court.
19. Be that as it may, it was the decision of Martin Spencer J which led to this application. The statement in support of the application refers solely to the decision in Griffiths. The note provided by Mr Edge for the hearing before the judge, equally, simply made reference to the decision in Griffiths and Mr Edge’s skeleton argument before me focuses again on the decision in Griffiths.
20. I emphasise all of that because in none of those documents is there any reference, at any point, to anything in Dr Al-Shamas’ report which could be said to give rise to some deficiency in reasoning. There is no suggestion of any incorrect assumptions, or misrepresentations of fact, or lack of detail, or lack of consideration of other causes for the gastroenteritis. Indeed, no criticism at all is levelled against Dr Al-Shamas’ report.
21. I am not entirely surprised that that is so because, having read the report, it seems to me that not only is it fully CPR compliant, but it is also well-reasoned. It does consider, in some detail, other potential causes for the gastroenteritis, but Dr Al-Shamas accepts at face value – as he must – the factual account given by the appellant and he explains why he concludes that, on balance, the gastroenteritis was caused by the consumption of contaminated food. He refers in particular to the timeline that one expects in terms of bacterial infection.
22. In my judgment, this report is entirely standard in this type of case. There is nothing remarkable or unusual about it. It is the kind of report to be seen in countless such claims and, indeed, I would say that in fact it is, in some ways, more thorough in that Dr Al-Shamas does consider in some detail other possible explanations for the gastroenteritis. Whatever, on face of it, there is no criticism to be levelled against this report.
23. What Mr Edge says to me is that he simply wants to keep his powder dry and have the opportunity to cross-examine Dr Al-Shamas as to the correctness (or otherwise) of his conclusions in Court. He says that in the past, before the decision in Griffiths, it would have been possible simply for counsel acting on behalf of the holiday company to address the court, at the conclusion of the evidence, identify flaws in the report and invite the court to disregard the conclusions reached on the basis that there was defective reasoning. I accept that that may have been the practice in some courts and that some counsel have adopted that approach.
24. The decision in Griffiths tends to exclude that approach because Martin Spencer J made it clear, as I have already pointed out, that if the report is uncontroverted and if it is CPR compliant and it, at least, provides some reasoning, then the court is bound to accept the conclusions.

LOOKING AT THE CIVIL PROCEDURE RULES

The judge then examined the rules relating to experts.

25. It is necessary to go back to the Civil Procedure Rules and look at what is said about the calling of expert evidence. The starting point is CPR 35.1—
“Expert evidence shall be
restricted to that which is reasonably required to resolve the proceedings.”
CPR 35.4(3A)
provides this—
“Where a claim has been allocated to a small claims track or the fast track, if
permission is given for expert evidence, it will normally be given by only one expert on a
particular issue.”
And then CPR 35.5(1)— “Expert evidence is to be given in a written report
unless the court directs otherwise.”
And subparagraph (2), which I have already referred
to—
“If a claim is on small claims track or the fast track, the court will not direct an expert to
attend a hearing unless it is necessary to do so in the interests of justice

NO REQUIREMENT FOR AN EXPERT TO BE AT TRIAL

HHJ Freedman overturned the decision of the District Judge. There was nothing in the medical report that indicated the expert should attend trial.

“The judge was reminded of the provisions of the CPR, and he apparently had regard to them but, ultimately, he concluded that it was in the interests of justice for the defendant/respondent to be given permission to cross-examine Dr Al-Shamas. In short form, what the judge said at paragraph 11 is:
“It seems to me that there is real risk that there would  not be a fair trial.”
What he does not do, even in summary form, is set out why, if Dr AlShamas was not cross-examined, the trial would be rendered unfair.
28. I think that Mr Pennock’s criticism that neither the respondent nor the judge sought to identify what it is that would render the hearing unfair is well-founded. It is not enough in the context of a fast track claim, with a value limited to £3,000, merely to assert that unless a defendant is given the opportunity to try and shake or displace the conclusion reached by an expert instructed on behalf of the claimant the judicial process is somehow rendered unfair.
29. In my judgment there must be something much more specific than that. In other words, if, most exceptionally and unusually, a court is to grant permission for a defendant to be given the opportunity to cross-examine the claimant’s expert in these circumstances, it must be demonstrated that there is some flawed or deficient reasoning within the expert’s report or some factual inaccuracy which needs to be exposed and needs to be clarified before the judge so that the judge can have an opportunity to evaluate the conclusion reached by the
expert and reject it, if appropriate.
30. If the respondent had been in a position to identify something in Dr Al-Shamas’ report which rendered his conclusions unsafe or if he was able to point to some factual inaccuracy which meant that the expert had provided his report upon a false premise, then (subject to the court being satisfied that it has the requisite power) it potentially might have been appropriate to permit the defendant in such circumstances to cross-examine the expert. But without that material before the court, it seems to me that the court is not being faithful to the CPR to the effect that expert evidence should only be permitted where it is necessary and that, in most circumstances, any such expert evidence should be in written form only”