Thursday, 7 April 2011

Edwards-Tubb v J D Wetherspoon Plc [2011] EWCA Civ 136: inexpertly done

In a trial, nobody cares about what you think.  You’re not there to think.  The only person allowed to think in a trial is the judge.  “What do you think caused the accident?”  “Oh, I think it was speeding…”  That will never be asked, you will never be allowed to answer.  You stick to the facts.

Unless you are an expert witness.  They are allowed to think.  This is because no matter how thoughtful the judge, they will not be able to think around causes of faults in things like nuclear reactors or foot and mouth or likelihood of recovery from an injury and so on.  So they get help.  Expert witnesses are allowed to think; they are allowed to give their opinions.

Because they are given a special status, their roles have to be described carefully.  They have to be given permission by the Court; who knows, the judge might find two opinions a little tricky and will demand one single expert, instructed by both parties, do the thinking for him.  More to the point, the Court wants to stop expert shopping.  I.e. you find the doctor with the most optimistic (or pessimistic) prognosis of your injury.  No good having a doctor who thinks your whiplash will fade in a week or two.  You want one who fears for your very ambulatory abilities.  Ramp up the damages.  That’s obviously not good for the Court.

So, the Court will give orders on how and whom you instruct.  You might need to nominate someone who might face a challenge (“Dr Depressive?  He’s biased…”).  Or you might need to change your mind, as your doctor is a bit too optimistic.

Which is what happened with Mr Edwards-Tubb.  Yes, that IS his real name, he DOES exist, this is not a Royston Vasey thing.  He fell over in 2005 whilst working for Wetherspoons; the company admitted fault.  The only spat was over the injuries.  No doubt Mr E-T had hurt his legs and knees; he however claimed he had whole body pain.

As per, the thing was faffed around until the claim was issued right up against the time limit; as per, each side instructed a medic; as per, they disagreed.  Thing is, there was a surprise.  Before issuing the claim, Mr E-T’s solicitors gave the names of three doctors they were going to choose from to Wetherspoons’ lawyers.  Again, as per your average personal injury claim.  However, when the expert reports were exchanged, Mr E-T’s report was signed off by a doctor who had not been named.  And it happened to mention that Mr E-T had been seen by a different doctor earlier.  One whose report – if there was one – had not been disclosed.  So Wetherspoons asked to see it…

Mr E-T’s solicitors said no.  The earlier report, if it existed, was privileged.  I.e. they had a right to refuse to show it, as it would reveal their tactics in the case.  Wetherspoons said that, in that case, it would ask the Court not to give Mr E-T permission to use this report.  On the basis that one of their original three doctors must have had a different view of the case. 

The Court of Appeal had a look at it.  The Court does have the power under the normal rules to demand a hidden expert report be dragged out of hiding – albeit only in rare circumstances.  One of those circumstances is when a party wants to change its mind over its expert, sometimes the price it has to pay is to show exactly why it wants to change its mind, usually because its expert has said “actually, your case is hopeless”.  As in this case, only it was slightly different – the other cases came when a party’s expert had been named specifically, or where a further examination (of person or property) was needed, or where the report had been obtained before going to Court; in this case Mr E-T hadn’t given the name of his expert, had already been re-examined, and had got the previous report when thinking about suing. 

But the principles, said the Court, were the same.  The whole ethos of the Court rules is to try to stop the gladiatorial combat and move towards amicable settlements.  That isn’t helped by a party instructing doctor after doctor until it finds someone who will say what the party wants.  More to the point, the expert’s duty is to the Court, not to the party.  So it helps the Court to see the earlier report.

Ergo, said the Court, the report should be disclosed.  Without doing so Mr E-T could not rely on doctor number 2.  A tricky tactical decision – should Mr E-T just go back and rely on his initial doctor, and leave the second one floating around somewhere, to try to prevent damaging aspersions being cast on the original?  Or does this unravel the whole case?  As yet, we don’t know.  What we do know is that the principle has been set.  If you need a second opinion, and the other side know you have a first opinion, you’ll probably have to show both.

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