EXPERTS: WHY IT IS UNWISE FOR A CLAIMANT TO BE AT A JOINT MEETING ON SITE: WHO SAYS YOU ARE GOING TO BE ABLE TO CALL EXPERT EVIDENCE ANYWAY? HIGH COURT DECISION

We are returning to the judgment of Mr Justice Cotter in  Jennings v Otis Ltd & Anor [2023] EWHC 2039 (KB). This time looking at the observations made in relation to experts. Firstly it was unwise for a claimant to be present, giving explanations, at a site meeting of two experts. This would give rise to evidential difficulties at trial. Secondly the fact that both parties sought to instruct experts did not mean that the court would automatically permit experts to be called.

 

“… just because draft directions have been largely agreed does not mean that a Judge necessarily has to approve them and make an order in those terms. It is also not the case that a Judge should consider him/herself somehow presented with a fait accompli because each side has already incurred significant costs in obtaining expert evidence. CPR 35.1 remains the requirement to be addressed going forwards in the case and CPR 35.7 provides that where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert.”

THE CASE

The claimant was seriously injured at work when his arm went into an unguarded area of a lift shaft and was amputated.   There were no witnesses to the accident.  Both parties instructed expert engineers. The issue at the hearing involved the question of whether the claimant should disclose his witness evidence prior to the experts reporting.

THE CLAIMANT WAS RIGHT NOT TO ATTEND A SITE MEETING

The judge held that the claimant was correct not to attend a site meeting with the respective experts.  Such a course could lead to major complications at trial as to what was said.

    1. The Appellant was invited to attend at the inspection which was to be (and was) undertaken by lift experts appointed by the parties on 16th November 2022 as it appears that it was hoped by the Respondents that he could provide further explanation as to how his arm came to be inserted through the gap in the guard. The Appellant agreed to attend then changed his mind about attending. The expert inspection proceeded without the benefit of any account other that contained in the Particulars of Claim and the response to the Part 18 request.
    1. In my view the suggestion that the Appellant attend at the experts meeting to clarify or expand on the central factual issue how the accident occurred was most unwise. Ordinarily experts should have access to the potential versions of events through pre-action correspondence, pleadings and statements (here they already had access to the HSE statements). If the experts needed to know additional detail such as the Appellant’s height and weight (at time of accident) they could have asked for it. In the absence of a fully recorded meeting the potential for satellite issues arising from a meeting where the Claimant was asked to explain/demonstrate what happened is obvious. Even if it was to be recorded, it is not appropriate for experts to have the ability to ask questions of a witness on a discreet factual issue of whether and if so how, a person came to stumble and/or fall.

THE DECISION AS TO WHETHER EXPERTS WERE NECESSARY

The judge thought that it may not be necessary to instruct experts at all given that there was a detailed report from the Health and Safety Executive. However, the time to make that decision as after the claimant’s evidence had been disclosed.

  1. By the time of the CCMC the fact that an arm could reach the moving parts of the equipment notwithstanding the presence of guarding, and also that further guarding which would have prevented this could have been installed, were not in issue. All parties also had access to a detailed report prepared by the Health and Safety Executive and a sensible suggestion was made that the Judge could have a short site visit and thus avoid the cost of extensive photographs etc. In these circumstances the extent to which expert engineers could assist the court had to be in some doubt. In their respective draft directions for the CCMC, each of the parties invited the Master to give them permission for expert evidence. However, just because draft directions have been largely agreed does not mean that a Judge necessarily has to approve them and make an order in those terms. It is also not the case that a Judge should consider him/herself somehow presented with a fait accompli because each side has already incurred significant costs in obtaining expert evidence. CPR 35.1 remains the requirement to be addressed going forwards in the case and CPR 35.7 provides that where two or more parties wish to submit expert evidence on a particular issue, the court may direct that the evidence on that issue is to be given by a single joint expert. The issue of what expert evidence was needed was parasitic on knowing the full extent of the Appellant’s case, underlining the need for clarity. I accept that it may be that in the present case some engineering evidence (most likely through written reports alone) may assist and, as Mr Brown submitted, the time to reach a final conclusion on this issue is after the Appellant’s case has been fully set out.