A JOINT STATEMENT OF EXPERTS IS FOR THE BENEFIT OF THE COURT AND NOT A PROVING GROUND FOR THE PARTIES’ RESPECTIVE CASES: “OVERLAWYERED” REPORTS: LIMITATION AND DATE OF KNOWLEDGE:

In the judgment today in  Aderounmu v Colvin [2021 EWHC 2293 (QB) Master Cook found that the claimant was not under a disability and the limitation period for bringing a personal injury action had expired. The Master exercised the discretion under Section 33 of the Limitation Act 1980 to allow the action to continue.  However the observations that the Master makes about the joint  medical reports are particularly telling.

 

“…. this is an overly lawyered document comprising 34 questions many of which had numerous sub clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.”

Parties should resist the approach that has been taken in this case, a joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases.”

 

THE CASE

The Master was determining issues of limitation in a clinical negligence action. In particular whether the claimant had capacity or not. If the claimant had capacity then the limitation period had expired and the Master then had to consider the discretion under Section 33.  The Master found that the claimant did have capacity but exercised his discretion under Section 33.

THE JOINT MEDICAL REPORTS

The Master observed that the joint reports were largely unhelpful.

The joint psychiatric report

  1. Dr Dilley and Dr Wright produced a joint statement dated 22 December 2020. Unfortunately this is an overly lawyered document comprising 34 questions many of which had numerous sub clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues. I will return to this subject in the context of the neuropsychologists joint reports.

Joint report neuropsychological report

    1. The joint statement dated 14 January 2021 suffered from the same vice as the that of the psychiatrists, it is an overlong overly lawyered document which asked many questions which were nothing more than a cross-examination of the experts on their respective approaches or attempts to advance the arguments on behalf the parties’ respective positions. Of the 41 questions posed only about 2 where of assistance to me in understanding the issues on which the experts agreed, the issues on which they disagreed and the reasons for their disagreement.
  1. Parties should resist the approach that has been taken in this case, a joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an experts report.