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Legal Mind Case and Commentary No. 35: A reasonable expert, please? - Koch HCH, Aldridge M, Grace J and Jansen F, July 2021

20/07/21.The pros and cons of requiring a medical expert to attend a hearing for a Fast Track case is debated and illustrates the importance of meeting CPR requirements.

Case: Taylor-v-TUI UK Ltd. County Court Newcastle 22/01/2021.

I am grateful yet again for the publication by Gordon Exall in Civil Litigation Brief (9/06/2021) concerning a claimant’s claim for food poisoning suffered, allegedly, on holiday. Medical evidence was obtained and Part 18 questions asked and answered. There was no direction that the expert attend trial. There was an appeal against the claimant expert attending at trial (for cross-examination).

The judge claimed that the expert’s report was objective, independent, fully CPR compliant and there was no reference to the expert’s report being or having:

  • Deficiency in reasoning

  • Incorrect in its assumptions

  • Misinterpretation of fact

  • Lack of detail

  • Lack of consideration of alternative causation

The judge found the expert’s report to be well-reasoned, thorough and unremarkable. The judge examined the rules relating to experts citing the following premises in CPR 35: -

CPR 35.5(1) Expert evidence is to be given in a written report unless the Court directs otherwise.

CPR 35.5(2) In small claims, the Court will not direct an expert to attend a hearing when it is necessary to do so in the interests of justice.

In the original hearing, permission was given to cross-examine the medical expert. On appeal, the judge stated that there must be a demonstration that there was some “flawed or deficient reasoning within the expert’s report or some factual inaccuracy which needs to be exposed and needs to be clarified before the judge”.

The judge concluded that “the Court is not being faithful to the CPR to the effect that the expert evidence should only be permitted where it is necessary and that, in most circumstances any such expert evidence should be in written form only”.

Commentary

Expert reports are typically comprehensive, concise and factually correct when disclosed. If there is no opposing evidence, the claimant-instructed expert report should be compliant with CPR requirements and typically is. Clarification of any technical or ambiguous statements should and can be made ahead of a hearing. When there is opposing defendant expert evidence, the joint statement process is a simple and very good tool for establishing agreement and disagreement, and also illustrating any aspect of either report, or the overall evidence, which is ambiguous. It does not need the considerable expense of being expended of court time and experts costs for the one/two experts to be in attendance.

Having said this, the judge’s comments about the need for CPR compliance and for logicality, accuracy and conciseness and thoroughness is what all experts and their instructing parties should aspire to.

Authors

Prof. Hugh Koch, Dr Mari Aldridge and Dr Joe Grace are all members of HK Associates.

Professor Koch is visiting professor in Law and Psychology at Birmingham City University (www.cv.hughkoch.com).

Dr Friso Jansen, Senior Lecturer in Law, Birmingham City University.

References

Exall G (2021) No need to call claimant’s medical expert. Civil Litigation Brief. 9.6.2021.

Koch HCH, Mushati D and Francis A (2019) Legal Mind Case & Commentary No.21. To convince or deceive? The analysis or reliable or realistic evidence. PIBULJ. July 2019.

Koch HCH (2016) Legal Mind: Contemporary Issues in Psychological Injury and Law. Expert Witness Publications. Manchester.

Koch HCH (2018) From Therapist’s Chair to Courtroom: Understanding Tort law Psychology. Expert Witness Publications. Manchester

Previous commentaries have covered

Koch HCH, Gill I and Wilson S (2021) Legal Mind Case and Commentary No. 34 Fundamental dishonesty of genuine unreliability? PIBULJ. May.

Koch HCH, Jansen F, Stockton C and Huntley F (2021) Legal Mind Case & Commentary No. 33 Judge’s opinion of Expert: Partiality and arrogance. PIBULJ. March 2021.

Koch HCH, Rydin-Orwin T, Riggs E, Gorman J and Jansen F (2020) Legal Mind Case & Commentary No. 32. What the Judge thought of the expert evidence. PIBULJ. September 2020.

Koch HCH and Bowe J (2020) Legal Mind Case & Commentary No. 31 Fixing mistakes. PIBULJ. August 2020.

Koch HCH, Fulford L, Parmar B, Francis A and Davies M (2020) Legal Mind Case & Commentary No. 30 Legal Thoughts: How to Improve Lawyer Wellbeing Post-COVID-19. Expert Witness Journal. Summer 2020.

Image ©iStockphoto.com/sorendls

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