Medical attention

When exercising case management powers under CPR Part 3, the procedural judge will frequently have to consider the question of expert evidence. There is a three-stage test to be applied in each case: 1) is there a need for expert evidence at all; 2) if so, is it appropriate for there to be a single expert, jointly instructed; and 3) if that is not appropriate, should each party be permitted its own expert?

There are many cases where some involvement of an expert witness is clearly required. The most common such case is a claim for damages for personal injury, where the CPR requires the claimant to file and serve, with their Particulars of Claim, any medical report relied on. In the smaller cases, such a report may well come from a GP, and may be the only medical evidence permitted, subject to the defendant having the right to ask written questions of the expert.

It is in the larger personal injury cases that more detailed consideration has to be given to allowing both parties to instruct experts. Since the experts may disagree, there is a greater possibility of experts having to give evidence at court, and the claimant's or defendant's case may stand or fall depending on the quality of the evidence given by the expert called by their side.

District judges deal with virtually all the management of all cases in the county courts and the District Registries of the High Court, whether on paper or at case management hearings. We see reports already filed, and the names of experts the parties propose to instruct. Although I can only speak for my own court, I have concerns that the pool of doctors willing to take on medico-legal work may be shrinking; and that some of those still taking on such work may be past their sell-by date.

Out of touch

It is common to see the same familiar names appearing as actual or proposed experts, particularly in cases involving industrial disease. What worries me is that some of these experts have been out of clinical practice for up to 20 years. They have impressive CVs, and are very experienced, but the danger is that they may not be up to date.

I have recently conducted two trials sitting as recorder, where problems have occurred. In one, the defendant's expert, a very experienced and eminent doctor, with many years of experience doing medico-legal work, was made to look foolish in the witness box by claimant's counsel because he was clearly not up to date with all the literature, and this made his opinion unsupportable. In another, a claimant's expert was shown to be out of touch with modern practice.

Although all experts are experts to the court, not the parties, they appear in court to support the case of the party. Imagine the effect on a claimant who sees and hears the expert, on whose opinion their case is built, shown up as out of touch.

But is the problem a lack of doctors prepared to do this work? I can think of three good reasons why this might be so:

1. After the criminal cases in which the evidence of experts has been discredited, some doctors may simply be reluctant to put their head above the parapet. I suspect this may certainly be the case in paediatrics.

2. Consultants working within the NHS may simply be too busy to take on this work. That may explain why so many medico-legal experts have left clinical practice, thus giving themselves the time to devote to court work.

3. There is a reluctance, even in smaller cases, to instruct registrars. They too are busy, but also tend to work on short-term contracts and can move around the country, or abroad, making it more difficult to keep them involved.

Further problems

What is needed is a regular throughput of younger doctors willing to take on this work. Inevitably, fitting in medico-legal work alongside clinical practice will be difficult. From the court's point of view, it is important that experts comply with case management timetables. The majority of delays that occur in cases reaching trial appear to relate to difficulty for the lawyers in getting their experts to deal with matters in accordance with the timetable the court has set. Doctors who are simply too busy should not become expert witnesses.

Other problems occur where there is only a small group of experts, perhaps in a rare medical specialty, so inevitably delays may occur because they can only offer to see a claimant many months ahead. If that particular expertise is needed, some delay cannot be avoided.

I recognise that I have dealt almost exclusively with medical experts. They are by far the most frequent experts involved in civil litigation, and I am not aware of similar problems arising in connection with other sorts of experts; although the requirement to keep fully up to date will be relevant in all fields of expertise. It may also be that I am unduly pessimistic, and that other parts of the country do not suffer the same apparent problems. But the essential message to solicitors considering instructing an expert is to think carefully about the expert to be instructed. It is no help to a client to found their case, or their defence, on an opinion which proves to be unsustainable in court.