Part 1: Expert evidence“ Additional expert evidence following a Joint Report.

The recent case of Hinson v Hare [2020] EWHC 2386 QB provides further clarification on the circumstances in which a court may allow one party permission to rely on a further expert report, when the conclusions reached by the single joint expert are not to their liking. Whilst the specific claim was for noise induced hearing loss (NIHL) the principles expounded can be applied generally.  

Elizabeth has recently acted for the Defendant at two applications on the same issue in which the Claimant’s applications were dismissed. The Claimants are currently appealing both decisions. An update will be provided following the appeals. 

The case 

The Claimant was employed by the Defendant in 1976-1986. It was the Claimant’s case that: she had been exposed to high levels of noise and had been provided no hearing protection, inadequate hearing protection, and/or no training in respect of the risk. The claim for pain suffering and loss of amenity was limited to £5,000. Consequently, on 23/11/18 the court allocated the claim to the fast track and gave permission for engineering evidence to be in the format of a joint report (being standard directions for a NIHL case with a value of less than £5,000). 

The parties agreed to instruct Ms Laura Martin of Strange, Strange and Gardner to produce a joint engineering report. The conclusion reached in the report meant the Defendant was not in breach of their duty of care to the Claimant and the Claimant’s case would fail. The Claimant sent Part 35 questions to Ms Martin and was permitted by the court to raise further Part 35 questions after discussing similar issues, on a different case, with Mr Adrian Watson. Following the replies, the Claimant produced a report from Mr Adrian Watson which supported the Claimant’s case. This report was received by the Claimant’s solicitor 3 days before the trial. It is important to note this was the third date the matter had been listed for trial due to the case being vacated twice previously.  

At the trial the Claimant applied to:

1. Vacate the trial.
2. Re-allocate to the multi-track and list for two days (originally it was listed for 1 day).
3. Be given permission to rely on Mr Watson’s report and for the joint expert, Ms Martin, to continue as the Defendant’s expert. 

In summary Miss Recorder McNeill QC dismissed the Claimant’s application taking into account the following: 

1. The engineering evidence was central to the case and technical.
2. The Claimant had agreed the instruction of Ms Martin.
3. The Claimant had lost confidence in the report of Ms Martin for a good reason.
4. The single joint experts’ opinion was not obviously lacking in cogency and did not display a clear lack of analysis or even partiality. In the Judge’s opinion “On the face of the two reports, it is perfectly possible that the judge at trial would prefer the evidence of Ms Martin, I cannot say”.
5. The trial had been vacated on two previous occasions.
6. The case was of a low value, considerable cost had already been incurred if the matter was adjourned there would be further considerable costs.
7. The low value of the claim was relevant but not conclusive. 

The Appeal 

The core argument for the Claimant on Appeal was if the report is technical and determines the crucial issue in the case, with the effect that the Claimant loses his claim in the event permission is not given, the application should succeed. The Claimant argued the value of the claim should not be determinative and pursuant to the ECHR the Claimant had a right to a fair trial. 

The Defendant submitted the Claimant had a “significant hurdle” to overcome at the appeal, the Claimant had to show the Judge had exercised her discretion wrongly. It was suggested if the Claimant’s submissions on appeal were accepted there would be no scope for the application of the “balance of grievance test” or the overriding objective.  

Judgement on the Appeal 

The Judge cited the paragraph in Daniels v Walker [2000] 1 WLR 1382, often quoted as the test to be applied when seeking to depart from a joint report, in which Lord Woolf MR makes reference to a joint report being the first step when a case is “substantial”. Following this if one party “for reasons which are not fanciful” want to consider whether to challenge the joint report then “subject to the discretion of the court” they should be permitted to so. Mr Justice Spencer (the Judge in the present case) interpreted this to suggest the Court of Appeal “did not intend to apply any straightjackets to the court”.   

The Judge further agreed with the approach taken in Bulic: v Harwood and Others [2012] EWHC 3657 QB 

“Eady J also referred to the decision of HHJ MacDuff QC (as he then was) in Kay v West Midlands Strategic Health Authority which had been relied upon by Judge Simpkiss at first instance in Bulic’s case, where Judge Mac Duff stated: 

“Where a party requests a departure from the norm and makes what one can term a Daniels v Walker application, all relevant circumstances are to be taken into account but principally the court must have its eye on the overall justice to the parties. This includes what I have called the balance of grievance test. The application will only succeed in circumstances which are seen to be exceptional and to justify such a departure from the norm.” 

Mr Justice Spencer upheld the decision of the Recorder below: 

“In my judgment, in the present case, the learned Recorder was faced with the clear task of balancing the interests of the parties, taking into account not only the overriding objective but also the interests of justice generally in seeing that cases are decided expeditiously, at proportionate cost and without undue inconvenience to other parties.” 

The Judge found the Recorder had considered all the relevant matters and balanced them accordingly. It is clear from the quote above applying the overriding objective is of paramount importance. In making reference to “justice generally” Mr Justice Spencer highlights the principal considerations from the overriding objective, proportionality, undue inconvenience of the parties and dealing with cases quickly. 

Comment 

When considering such applications, it is important to remember they are fact sensitive, different considerations will need to be factored into the “balance of grievance test”. 

The case must fall outside the normal ‘run of the mill case’ and the circumstances be considered to be “exceptional” for the party to have any prospect of obtaining permission. What is a court likely to consider to be an “exceptional” circumstance? What is clear from this judgement is Courts (in claims of modest value) are reluctant to give a party permission for further expert evidence even if they can find an expert to provide a different opinion.  It must follow that an expert providing an alternative opinion does not automatically make the opinion of the Joint expert wrong or unreliable. Justice cannot come at any price, even in cases such as the present, where the opinion of the single joint expert is crucial for the Claimant to succeed.   

It is interesting to note the quote used in the judgement from Daniels v Walker refers to obtaining the expert evidence and not permission to rely on such evidence; such a distinction does not appear to have been made in the current case. Furthermore, reference is not made to paragraph 29 of the judgement in Daniels v Walker where Lord Woolf refers to claims of “modest value” where different considerations apply: 

“You cannot make generalisations, but in a case where there is a modest sum involved a court may take a more rigorous approach.  It may be said in a case where there is a modest amount involved that it would be disproportionate to obtain a second report in any circumstances.  At most what should be allowed is merely to put a question to the expert who has already prepared the report”.

The lateness of the application and need to have the trial vacated played some part in the Claimant’s application being refused. Delay would no doubt be a factor in any application of this nature as the experts would have to prepare joint statements and attend the trial. One factor the court did not take into account is the effect of QOCS. In NIHL cases it is very rare for QOCS to be set aside. If the Claimant had been given permission to rely on Mr Watson the costs of defending the case would have escalated substantially.  Had the Defendant been aware of this at allocation the Defendant may have run the case differently, including choosing a different expert engineer. The conduct of the Claimant may be considered by some to be a partial ambush.

Elizabeth Jones

Parklane Plowden Chambers