Evidence based on expert opinion in civil proceedings does have some limitations, writes District Judge Tromans


The current regime governing the use of expert evidence in civil proceedings is in part 35 of the Civil Procedure Rules (CPR). In particular, rule 35.1 restricts expert evidence to what is reasonably required to resolve the proceedings. Rule 35.4 requires the court's permission before a party can rely on expert evidence. Rule 35.7 permits the court to limit expert evidence to that of a single joint expert and 35.12 sets out a procedure for discussions and joint statements where evidence from more than one expert is permitted.



Despite the crispness of the language, questions continue to arise on the application of part 35 to the facts of particular cases. Two questions have been highlighted in recently decided cases on which there has previously been no direct authority.



Is permission under part 35 required where the evidence from a professionally qualified witness is limited to issues of fact?



In Gall v the Chief Constable of the West Midlands [2006] EWCA 2638, [2006] All ER (D) 297 (Oct), the claimant alleged that he had been assaulted by the police. The particulars of the claim gave a brief description of abrasions, scratches and bruises, and attached what was described as a report from the claimant's GP. This was in fact in letter format, rather than in a format compatible with part 35, and merely recorded that the GP had noted certain bruises and marks on examination without expressing any opinion as to causation.



Neither party indicated in the allocation questionnaires a wish to rely on expert evidence. However, Judge Wood QC subsequently gave directions envisaging that the GP would give evidence at the trial and attaching a number of unusual preconditions. Permission was also given to the defendant to rely on oral evidence from a medical expert who had produced a report after merely studying photographs of the claimant. No other permission was given relating to expert evidence.



Some time later, the claimant, who was now acting in person, applied for permission to rely on written and oral evidence from the GP. That application was dismissed by Judge Cardinal, who treated the application as an application for relief from the sanctions imposed by the preconditions in the earlier order. The claimant appealed.



Mr Justice Tugendhat held that the evidence of the GP was evidence of fact only. Rule 35.4 did not apply and no permission was required to rely on that evidence. The preconditions had not been fulfilled but this was through no fault of the claimant. In addition to the factors specified in rule 3.9, the court should also apply the overriding objective when hearing an application for relief from sanctions and endeavour to achieve a just result. Conditions restricting the use of evidence of fact will rarely be appropriate.



If an expert changes his opinion between report and trial, will evidence from a second expert be permitted?



In Stallwood v David & Anor [2006] EWHC 2600, [2007] 1 All ER 206, the claimant had sustained injuries to her neck and lower back in two accidents, the second having occurred some four months after the first.



The claim was pleaded on the basis that her earning capacity would be reduced by half for the remainder of her working life. Accordingly, the total value of the claim was in the region of £200,000.



An orthopaedic surgeon examined the claimant on four occasions and in his final report, prepared four years after the accidents, the surgeon stated that little further improvement could be expected. While some symptoms might moderate over another year, no full recovery would be achieved. Another orthopaedic surgeon also examined the claimant on behalf of the defendant. That surgeon's report stated that the claimant's alleged symptoms arose from an element of exaggeration and background psychosocial factors entirely unrelated to the accident. Any disadvantage on the labour market would have ceased after two weeks.



In due course, the surgeons met to discuss the issues and the joint statement put a cat among the claimant's pigeons. It was agreed that symptoms related to the accidents would have cleared in no more than two years and that the claimant's ongoing inability to work full time was unrelated to the accidents.



Not surprisingly, the claimant lost confidence in her expert and applied for permission to rely on evidence from another surgeon. Judge Cotran refused that application and the claimant's appeal against that refusal came before Mr Justice Teare sitting in the Queen's Bench Division.



The judge initially pointed to rule 35.12(5), whereby an agreement between experts is only binding on the parties with their consent. This contemplates a situation in which an expert may change or modify an opinion previously expressed. A change of opinion does not, in itself, establish that further evidence is 'reasonably required' for the purposes of rule 35.1, even if the effect of the change is to reduce substantially the value of the claim, since the change of opinion is not binding on the instructing party. However, further expert evidence may be permitted if it is apparent that the instructed expert has stepped outside his expertise or brief, or has displayed incompetence.



Although rule 35.6 only provides that a party can put questions to another party's expert or to a jointly instructed expert, this does not preclude a party from putting questions to his own expert. In fact, this should be done as a prerequisite to an application for permission to rely on evidence from a second expert, since the answers to questions relating to the change of opinion might be important in determining whether that change raised questions as to whether the expert had stepped outside his expertise or brief or whether the competence of the expert was subject to challenge.



Mr Justice Teare derived assistance from the approach of Mr Justice Neuberger (as he then was) in Cosgrove v Pattison [2000] All ER (D) 2007 in considering, in a case involving a joint expert, whether either party would have an objectively justifiable sense of grievance if permission were to be granted or alternatively refused. In the present case, the judge found cause for concern in comments made by Judge Cotran in the course of the hearing and came to the conclusion that the claimant would have such a sense of grievance if permission were to be refused. Accordingly, the claimant was allowed to instruct a second expert.



District Judge Tromans sits at Plymouth Combined Court Centre