Guns for hire
A key aim of Lord Woolf's civil justice reforms was to get rid of the 'hired gun' expert culture. Before the Civil Procedure Rules (CPR), in even the smallest claim, both sides would instruct medical experts who would often vehemently disagree - usually, it was perceived, siding with the party instructing them.



Most practitioners on both sides would agree that the CPR changes to expert evidence have by and large greatly improved things. In most fast-track cases, one expert is relied upon and, with a few exceptions, the 'hired guns' have largely disappeared (or at least reformed).



However, it has always worried me that in a fast-track personal injury trial (and some multi-track cases where the expert evidence is agreed), even where the only live issue is quantum, substantial awards of compensation have to be decided without a doctor in sight. And the appeal courts have recently had to deal with the perhaps inevitable consequences.



It is, of course, important to read the expert's report and make sure you understand it and, if not, to ask him to clarify it before trial. In Chambers v Excel Logistics Ltd [2006] EWCA Civ 1031, liability was admitted and the sole orthopaedic expert did not give oral evidence at the quantum trial. He said in his report that 'it is impossible to be precise, but I would suggest an acceleration of three years'. However, he concluded: 'That is to say, had the accident not occurred, his symptoms would have reached the present level in three years from the time of the accident.' This was ambiguous, and, as the defendant argued, appeared to suggest that the accident had had no effect.



The Court of Appeal set aside the judgment and ordered a re-trial: 'Given the divergence as to the interpretation of [the expert's] evidence, made plain to the judge at the outset of the matter below and at the heart of this appeal, it is unfortunate that he was not asked to clarify at or before the hearing what he meant, either by a further short written report or in oral evidence.'



Similarly, in Woolley v Essex County Council [2006] EWCA Civ 753, liability was again admitted, and an employment expert was jointly instructed to give evidence on the earnings of curtain wallers (specialist fitters of large glass sheets in commercial premises). Although, throughout the report, the expert had stressed the specialist nature of the work and said it should put the claimant in the highest-earning tenth centile for glaziers, in his conclusion he had referred to the average earnings of glaziers instead. The judge found that he was bound by the conclusion and, somewhat surprisingly, felt unable to exercise his own judgement.



The Court of Appeal allowed the appeal and held that the judge should have found that the expert had made an obvious mistake and reached his own view on the figures. Indeed, in this case the error was so obvious that the court substituted its own figures. The court pointed out that it 'would have expected, on the facts of this case, both sides to have asked the jointly instructed expert to explain his conclusions and the apparent lack of clarity. If the expert had simply made a mistake, that might well have become clear before trial and the litigation taken a different course'.



Even where each side is allowed the luxury of oral evidence by their own expert at trial, problems can arise. In Hardisty v Aubrey [2006] EWCA Civ 1196, the claimant suffered a whiplash injury that she claimed was long-lasting and significantly disabling. The judge found her an honest witness. Both sides' experts produced reports and a joint statement setting out the points on which they did and did not agree. During the trial - indeed, after the claimant had concluded her evidence - an issue arose as to whether the symptoms had ceased for a period. The judge, largely relying on documents and despite his finding of honesty, found they had, which materially reduced the compensation awarded. In allowing the claimant's appeal, the Court of Appeal said this issue 'was not raised at all before the trial, despite lengthy discussions between the doctors, who had all the medical records available to them'.



Joint meetings can bring their own problems. In some cases, the lawyer fears that he may be throwing his expert to the lions. In Stallwood v (1) David (2) Adamson [2006] EWHC 2600 (QB), the claimant's expert examined her four times over three years and, in his final report, said that 'little further improvement can be expected' and 'a full recovery will not be achieved'.



The defendant's expert, on the other hand, found that 'the alleged cocktail of symptoms... [was] due to an element of exaggeration... [and] her present alleged situation is entirely unrelated to the material accident'. Given this difference of view, the case proceeded towards trial with the claimant seeking £200,000 damages. The experts met and produced a joint report. In it, the claimant's expert changed his position, saying that he now accepted that only two years of symptoms were genuine.



Seeing the case dissolving before their eyes, the claimant's solicitors instructed another expert and sought to adduce this additional evidence, but the judge refused. Under CPR 35.12, the joint-expert meeting does not 'bind the parties'. However, the High Court judge on appeal was naturally concerned about the implications of allowing a party to adduce new evidence after the previously instructed expert had produced a joint report the party did not like.



The judge said this would be allowed only in rare cases where the expert 'has modified his opinion for reasons which cannot properly or fairly support his revised opinion'. In passing, the Court of Appeal pointed out that an expert who has changed his opinion should be quizzed before taking the radical step of seeking permission for a new expert.



On the facts, the judge was not minded to allow additional expert evidence on these grounds. However, at the hearing of the application that was under appeal, the judge had behaved poorly, commenting for example that he himself had had 'a backache for 40 years when I can sit and do my job'. It was, therefore, in the interests of justice in these peculiar circumstances, so that the claimant would feel she had a fair trial, to allow her to hire a new gun and adduce new evidence.


By David Marshall, Anthony Gold, London