Experts' discussions

Introduction

The narrative accompanying Part 35 of the Civil Procedure Rules (CPR) begins with a reference to the Access to Justice Reports' conclusion that expert evidence ‘has long been identified as a major source of problems in the civil justice system’.

The package of recommendations intended to resolve these problems included bringing the use of expert evidence within the control of the courts through the use of judges' case management powers. These are now comprised in CPR 35. One of the most frequently used powers, and perhaps the most controversial, is the direction of experts' discussions. CPR 35.12 provides that the court ‘may’, at any stage, direct a discussion between experts for the purpose of requiring the experts to (a) identify and discuss the expert issues in the proceedings; and (b) where possible, reach agreed opinion on those issues.

Both experts and lawyers have experienced problems with the implementation of this laudable aim. They complain that, too often, experts' discussions are ordered as a matter of course, irrespective of merit, and ordered at a time when the issues between the parties have not been clarified. The subjects for discussion themselves are also frequently controversial, with arguments about what should be on the agenda not only between the parties' lawyers, but sometimes even between the lawyers and their own experts.

In spite of Case Management, court timetables are frequently subject to delay which itself leads to another complaint. The experts find themselves struggling to achieve the discussion within an impossible time frame because the timetable has been allowed to slip repeatedly – and the discussion is planned as the last event before trial. Since the trial date is regarded as sacred, the time remaining for the discussion is frequently unrealistic. In an attempt to address this issue, the London Clinical Negligence Masters Ungley and Yoxall drafted, for the guidance of procedural judges in clinical negligence litigation, the ‘Model Directions’.¹ These were broadly based on the ‘Guidelines for Experts Discussions in the Context of Clinical Disputes’, published by the Clinical Disputes Forum in 2000. ² They proposed (version 3) that ‘a draft Agenda … shall be prepared jointly by the Claimant's solicitors and experts and sent to the Defendant's solicitors at least 35 days before the agreed date for the experts’ discussions' and ‘The Defendants shall within 14 days of receipt agree the Agenda’ and ‘Seven days thereafter all solicitors shall use their best endeavours to agree the Agenda; in default both versions shall be considered at the discussions. Agendas … shall be provided to the experts not less than 7 days before the date of the discussions.’ There was general agreement that the default position (two agenda) was all too common and that the time limits were seldom observed. It is not uncommon for experts to be handed two agenda with in excess of 70 questions on the night before the proposed discussion.

The question of whether lawyers should be present at the discussion is also controversial. According to a recent AvMA survey, only 33% of experts find the presence of lawyers at discussions ‘helpful’. Many find that they are more at ease to reach agreement without the potentially inhibiting presence of the lawyers.

Procedural device or judicial toy?

It has been suggested elsewhere that little thought is expended on the question of whether to order a discussion and the obligatory discussion has become more a ‘judicial toy’ than a procedural device. ³ The word ‘may’ in CPR 35.12 is, according to some experts and lawyers, routinely interpreted as meaning ‘must’ by procedural judges in clinical negligence cases. Their experience is that the experts' discussions are ordered in every case, usually at the first case management hearing and often before anyone knows what the issues are. (Although the requirement is qualified by the words ‘Unless otherwise agreed after consulting with the experts’, in the latest version it is further emphasized by the insertion reminding practitioners that neither discussions nor agenda are mandatory.) It is frequently argued that more care needs to be taken in deciding when to order the experts to meet, not least because of the time and cost involved in setting up the discussions. If the order were to be considered after the exchange of expert evidence the decision would be better informed.

Indiscriminate orders for experts' discussions raise the issue of proportionality. They are expensive to implement, and even more so if the case is complicated by multiple sets of experts. The discussions are themselves very expensive, particularly if, as in the more complex cases, the experts actually have to meet face-to-face. In every case, agenda need to be produced and agreed, experts have to prepare for the discussions and lawyers have to assist in that process.

The way the CPR is being implemented does not distinguish between straightforward, low value cases and more complicated cases and the experience of some practitioners is that an order for an experts' discussion is made regardless of the size and complexity of the claim.

The agenda

The agenda for the experts' discussion frequently proves to be a most controversial document. The intention of the experts' discussion is to narrow the issues and, to do that, the issues need first to be identified and then such questions asked as will assist the experts to agree or at least to narrow them.

While experts must have an input, there was general consensus that responsibility lies with the lawyers. Solicitors ought to have a grasp of the outstanding issues between the parties, but it is surprising how often the agenda seeks to address questions on which there is no disagreement or raises matters that are not relevant to the dispute. Experts will sometimes focus on issues that may be relevant clinically, but will not necessarily be relevant in a legal context. All too often the solicitors hand over last-minute responsibility to counsel who are, by their nature adversarial, esoteric and not necessarily inclined to pose such questions as will reveal the ‘truth’. One suggestion of good practice was to arrange a conference after the exchange of expert evidence at which a draft agenda could be thrashed out.

Another issue of concern is that, despite the best efforts of the new age practitioner and the overriding objective of the CPR, there is a residual contentiousness between lawyers. Some find it counter-intuitive to reach agreement with their opposite number, even if doing so will serve to settle a case favourably. The behaviour of lawyers in these circumstances was likened to that of the school playground; it is difficult to see a remedy for such conduct and the procedural judges seem powerless to interfere.

With all this in mind, it is often the case that the parties cannot and do not agree on the agenda. Whoever drafts the agenda, it is vital, if there is to be a successful conclusion to the experts' discussion, that it correctly identifies the issues in dispute for the purposes of the litigation and poses such questions as will assist the experts to agree as many of those issues as possible. The seemingly innocuous provisions of CPR 35.12.2 mean that if the parties cannot, as is too often the case, agree what issues the experts are to discuss then the procedural judge will agree what those issues are for them.

It is, therefore, open to the parties to apply to the court for an order under CPR 35.12.2. However, the extent to which procedural judges can be expected to decide what should be included in an agenda, if the lawyers and the experts cannot is also controversial. Master Ungley has declared that ‘for a procedural judge to rule sensibly and relatively on the contents of an agenda for a case where each report perhaps runs to 15 pages, when you have to read both reports, understand the difference between them and then consider the appropriateness of the agendas, would be impossible’. These applications also have an effect on the overall timetable. Experts complain that they are often taken by surprise just before their discussion by the late arrival of an agenda. The timetable has often slipped to the extent that there is insufficient time for an agenda to be agreed and insufficient time for preparation for the discussion. The trial date is set in stone, being the only date that is sacrosanct – but only 1% of clinical negligence cases ever get to trial.

Should the lawyers attend?

Some lawyers, particularly those acting for Claimants, express concern about the transparency of the litigation process in the context of this question. Experts' discussions in clinical negligence cases are extremely powerful because they can be, and often are, determinative. The lawyers who say they should be present argue that if the experts' discussion is determinative in a meeting at which they have not been present, their clients may not understand what has gone on.

In his report on the civil justice system, ‘Access to Justice’, Lord Woolf said, at chapter 15 paragraph 2, that suspicion between the parties was more intense (in clinical negligence) than in other types of litigation and at paragraph 68 states that ‘many claimants felt strongly that the system is weighted against them and in particular professional solidarity among doctors is a barrier to justice for ordinary people. Whether or not this is justified, I have no doubt that it is encouraged by the lack of openness, which still prevails in this area of litigation.’

Lawyers who have been prevented from attending experts' meeting point out that if the experts' discussion in a particular meeting goes against their client and they then have to advise that the case be turned down, that is a more difficult piece of information to communicate to their clients than would be the case if the lawyers were there.

Those on the other side of the argument concede that sometimes Claimants do feel excluded from the process and ‘carved up’ by the medical profession, but are adamant that the current system is a vast improvement on the old where experts would sometimes meet for the first time in court. They also point out that bad news is bad news, however and whenever it is delivered.

In any event, it remains rare for lawyers to attend meetings and judicial practice is that, generally, they are not allowed.

Changes of mind after the meeting

A further problem, and one which is not really covered by procedural guidance at the moment, is what happens after the meeting if, as is often the case, the joint statement is not agreed there and then. Some experts complain that very often the statement ends up in the hands of the instructing lawyers and, rather than being an accurate reflection of the experts' discussion, it becomes a reflection of an ancillary discussion between the lawyers and the experts.

It has been suggested that the directions given to experts include a restriction on the circulation of the joint statement until after it has been agreed and signed up to by the experts who should not allow the lawyers to see its contents until then.

Solutions

Some of the proposed solutions were:

More rigour is required in the context of the Case Management Conferences. Judges need to question (a) whether to make an order and (b) when to make such an order; and specifically whether there is a more appropriate time to do it. An order for discussion made after there has been an exchange of experts' reports would be much more useful so that the experts and lawyers are able to see what the issues really are;