A matter of opinion

The Court of Appeal has confirmed that, where a party wishes to instruct an alternative medical expert, a conditional order for disclosure of the existing report should be the usual order. Richard McKeown explains the ruling.

In Edwards-Tubb v J D Wetherspoon [2011] EWCA Civ 136 the claimant sustained injury when he tripped and fell in the defendant’s kitchen. He alleges that, as a result of the accident, he is suffering chronic whole-body pain which is having a grave effect on his life, for which no organic cause has been identified.

In accordance with the personal injury pre-action protocol, the claimant nominated three orthopaedic surgeons, one of whom was a Mr Jackson. No objection was raised by the defendant to the nominated experts. The claimant was examined in March 2007 and a report was prepared dated 14 May 2007. That report was never relied on or disclosed by the claimant.

Shortly before service of proceedings, the claimant served a report from a different orthopaedic surgeon, Mr Khan, who was not one of the originally nominated experts. An application was made by the defendant seeking an order that disclosure of the “Jackson” report ought to be made a condition of the permission which the claimant needed under CPR 35.4 to rely on Mr Khan.

At first instance DDJ Challans granted a conditional order. However, this order was overturned on appeal by HHJ Denyer QC, on the basis that this impermissibly overrode the doctrine of privilege. The defendant appealed.

Court of Appeal

In a unanimous decision the appeal succeeded. The Court of Appeal was directed to a line of authorities where courts had made a conditional order when a party had elected within proceedings to change expert. The claimant argued that, where such conditional orders were made, it was after reports were obtained within proceedings and that it was necessary to demonstrate some element of bad faith on the party wishing to change expert. However, Hughes LJ stated that he could see no difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert instructed post-issue.

The next question to consider was whether a conditional order of the type sought should be regarded as an “unusual or exceptional order” or be the usual order made. Approving the authority of Vasilou v Hajigeorgiou [2005], which supported the argument that a conditional order would be the usual order, Hughes LJ highlighted the comments of the Court of Appeal in Vasilou when it said: “Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it”.

Hughes LJ went on: “The expert’s prime duty is unequivocally to the court. His report should say exactly the same whoever instructed him. Whatever the reason for subsequent disenchantment with expert A may be, once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party at suitable, and has reported”.

He held that, whilst it remained a matter of discretion, the making of a conditional order is a power which should ordinarily be exercised where a change occurs after the parties have embarked on a claim under the protocol.

The Court further indicated that, in occasional cases, where a report is disclosed following such an order, a court should be ready to require the party to whom such a report is disclosed to call the expert to trial if he wishes to rely upon it.

Comment

This case emphasises again the fact that expert shopping is unacceptable and makes clear that there is no difference between a report obtained prior to proceedings or following the commencement of litigation.

In personal injury actions, if expert shopping occurs, it will most likely occur prior to the commencement of proceedings. Therefore, this decision prevents a party, on obtaining an unfavourable report, from being able to go to a further expert without having to disclose the earlier unfavourable report.

This is logical. The duty of an expert is to the court; why should the court be deprived of being fully appraised of all the opinions given by experts when determining a claim?

Whilst this claim was considered in the context of a personal injury claim, it will be interesting to see whether the conditional type of order becomes the norm in all proceedings where expert opinion is obtained pre-litigation. There would seem no reason why other types of claim should be treated any differently.

Richard McKeown is a partner at Kennedys (www.kennedys-law.com) and acted for J D Wetherspoon in this case. He instructed Johnathan Payne of Ely Place Chambers. Richard can be contacted on 0161 829 2583 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..