by Dr Simon Fox QC - No5 and Exchange Chambers
“It certainly should not become routine to provide two versions which, as here, travel over much of the same ground. That approach tests the patience of the experts (and frankly of the court); produces a lengthier joint statement; potentially increases costs and is simply not the best way to focus on the issues. I do not think that anything further needs to be said or done in this case. However, if this worrying trend continues, parties may find that courts begin considering costs consequences.”- Mrs Justice Yip commenting on the experts’ agendas in the recent case of Welsh v Walsall Healthcare NHS Trust 2018 EWHC 1917 QB.
Expert meetings and their agendas have been provided for under the Court rules for over 20 years, but despite this have until recently attracted little comment, guidance or case law.
CPR 35 tells us simply –
- A joint meeting is not mandatory and is at the discretion of the Court;
- The purpose is to identify the issues between the experts;
- The content of the discussion cannot be referred to at Court and the parties are not bound by any agree ment which the experts reach.
The accompanying Practice Direction and 2014 Guidance for Instruction of Experts add –
- The purpose of the agenda is to help the experts focus on the issues;
- The agenda must not be in the form of leading questions or hostile in tone;
- The parties should cooperate in preparing the agenda;
- The experts should set out the reasons for their disagreement;
- The experts should not seek to settle the case.
Standard directions in clinical negligence cases give us some further guidance–
- The Claimant prepares the agenda and sends it to the Defendant to agree or amend;
- Parties should use their best endeavours to agree a final version of the agenda;
- In doing so the parties should not argue over semantics or points that the experts can resolve them selves;
- If they cannot agree one agenda, the default position is that both the Claimant and the Defendant’s version of the agenda should both be considered by the experts. Until recently that was pretty much it in terms of guidance to lawyers in preparing agendas. My experience of the last 20 years is that it has become common practice –
- For each side to be partisan in the preparation of their respective versions of the agenda, trying to make sure that their version covers what they regard as their best points in the expert evidence;
- Agendas have become longer and longer – I have seen some with 50 questions (and I suspect barristers are more guilty here than solicitors);
- What should be the default position, of two agendas going to the experts, has become the standard position.
Mrs Justice Yip has issued a wake-up call for lawyers adopting such an approach. A judge who previously specialised in personal injury and and clinical negligence, Yip J has given those of us working in those areas a series of useful judgments on different topics since her appointment last year, but she has spoken in particular on the topic of experts’ agendas.
Her most recent judgment - Welsh v Walsall Healthcare NHS Trust 2018 EWHC 1917 QB - was a bariatric surgery case in which the Claimant claimed negligence in the surgery and post-operative management in a gastric bypass operation, resulting in the 40 year old claimant having to undergo a reversal of the bypass and ileostomy with long term ongoing disability.
At the liability trial (the Claimant won), of the joint statements, Yip J stated –
“35. As I observed during the trial, the joint statements in this case were not as useful as they might have been. The difficulty was caused by the inability of the parties to agree a single agenda for the experts’ consideration. This is not the first time that I have expressed concern about this and counsel confirmed that it is a problem that appears to be arising more frequently. When I enquired as to why that might be, Mr Counsell, having sought instructions, referred to the model direction for clinical negligence actions which provide for the claimant’s solicitors and experts to prepare a draft agenda to be sent to the defendant’s solicitors and experts for comment and for the defendant to then agree the agenda or propose amendments within 21 days. Paragraph 13 of the model order says:
“7 days thereafter all solicitors shall use their best endeavours to agree the Agenda. Points of disagreement should be on matters of real substance and not semantics or on matters the experts could resolve of their own accord at the discussion. In default of agreement, both versions shall be considered at the discussions.”
36. It was suggested that the form of the model order encourages more than one agenda to be sent to the experts. I cannot agree with this. The standard direction makes it clear that the solicitors are required to do their best to agree a single agenda. In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take. It may be appropriate to insert some additional questions into the draft at the defendant’s request. It certainly should not become routine to provide two versions which, as here, travel over much of the same ground. That approach tests the patience of the experts (and frankly of the court); produces a lengthier joint statement; potentially increases costs and is simply not the best way to focus on the issues. I do not think that anything further needs to be said or done in this case. However, if this worrying trend continues, parties may find that courts begin considering costs consequences.”
Yip J’s reference to this not being the first time she has criticised the lack of a single agenda refers to her judgment earlier this year in another surgical case - Saunders v Central Manchester University Hospitals NHS Foundation Trust 2018 EWHC 343 QB. This was a claim for alleged negligence in the performance of an operation to reverse an ileostomy in which she stated of the experts –
“their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but in the way the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.
I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. The joint statement is an important document. It ought to be possible to read it and understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned. Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground. Frankly, the approach to the joint statement in this case achieved nothing of value”.
So lawyers need to be careful in adopting the default position of a Claimant’s and a Defendant’s agenda both being put to the experts. However, the default position will sometimes still have its place.
By stating “The joint statement is an important document. It ought to be possible to read it and understand the key issues and each expert’s position on those issues” in my view Yip J is also making the point that the agenda should be drafted in a way that means that the joint statement derived from it encapsulates the key issues in the case. Any person should be able to read it in 15 minutes and understand the case, or at least the case relevant to that discipline of expert. This takes some time, thought and careful drafting. If the Defendant turns a carefully crafted, clear and succinct agenda which will help the judge, into a lengthy dog’s dinner which will only confuse them, then the default position of two agendas remains the appropriate one.
In respect of Yip J’s final comment of the risk of costs consequences if a party does not act appropriately in preparing an agenda, this was considered previously in the case of Cara v Ignotus, a case management decision by Master Yoxall on 7th October 2015 (reported on Lawtel) in which the Master did impose a costs sanction over an agenda.
In that case the Defendant asserted that the Claimant’s proposed agenda contravened para 9.3 of the practice direction to CPR 35 which states “The agenda must not be in a form of leading questions or hostile in tone.” Master Yoxall agreed with the Defendant that the questions were in contravention of the practice direction and awarded costs of the application against the Claimant. This illustrates the principle that an agenda should be drafted in a neutral manner and a partisan one will be sanctioned.
So, what should lawyers take away from these recent judgments ?
I suggest –
1. Keep the agenda simple. Ensure it covers the key issues in the case, not peripheral ones. This means 10 questions, not 50.
2. Try to keep the wording balanced, neutral and objective – covering the points both parties need to be addressed and anticipating objections from the Defendant. This means it will not simply be a list asking the experts to agree all of your best points – that is the job of the closing submission at trial.
3. The Claimant should ask the Defendant, if they cannot agree it, to make as few amendments as possible - the fewer the amendments, the more likely one agenda can be agreed.
4. They should also invite them, if they cannot agree it, to propose extra questions rather than changes to existing questions – these can be added to the end of theirs, effectively maintaining one agenda but avoid ing the effectiveness of theirs being reduced.
5. Cooperate … The Claimant should be reasonable and cooperate with the Defendant as much as they can. They should demonstrate this in correspondence by offering concessions. They should justify any objection they have to any proposed questions. They may need to refer to this on costs later.
6. ... But don’t capitulate. Lawyers shouldn’t feel that they have to agree at all costs, especially if it means replacing their carefully crafted ten questions which will explain the case perfectly to the trial judge (and anyone else who cares to read it) with a dog’s dinner which leaves the reader more confused about the case than enlightened. If they need to, they shouldn’t be afraid to revert to the default position anticipated by the standard direction – the meeting proceeds with the experts addressing both agendas, but they should be ready to explain it to the trial judge and the costs judge.
7. Don’t delay – the directions don’t give them much time to draft and seek to agree the agenda. In addition, if they want their expert to do a decent job, the least they can do is send it to them in good time for the meeting.
8. Have a telecon with the expert the day before the joint meeting – this ensures that an otherwise poorly prepared expert has got the papers, has read them and is up to speed on the issues to be covered in the meeting, which is possibly the most crucial part of any case.
9. Don’t interfere – once the experts start their discussion (by telephone or email exchange) they should leave them to it and politely decline any invitations to “approve” a draft statement.
Dr Simon Fox QC
This article first appeared in the Avma newsletter, many thanks for permission to reprint.