Instructing Second Expert

Daniels v Walker (CA TLR 17 May)

The claimant when he was seven years old had been struck by a car driven by the defendant and had sustained severe injuries. He would need some form of care for the rest of his life. The issue was the nature of the care which he would require. The parties had agreed that there should be a report prepared jointly by an occupational therapist. When her report was received the claimant’s lawyers were, for reasons which were not fanciful, unhappy with it. Their application for permission to obtain and, if appropriate, rely on a report from another expert was refused by the judge who invited the defendant to put written questions to the joint expert. The judge had come to the wrong decision. Where a party sensibly agreed to a joint report and a report was obtained as a result of joint instructions, the fact that he had agreed to adopt that course did not prevent him being allowed facilities, first properly to obtain a report from another expert and, if appropriate, to rely on the evidence of another expert. In the majority of cases, the sensible approach would not be to ask the court straightaway to allow the dissatisfied party to call a second expert. In many cases it would be wrong to make a decision until one was in a position to consider the position in the round having obtained further information before making a decision as to whether or not there was a particular part or, indeed the whole of, the expert’s report which he might wish to challenge and he should, therefore, subject to the discretion of the court, be permitted to obtain that evidence. Where only a modest sum was involved the court might take a more rigorous approach. It might be said it would be disproportionate to obtain a second report in any circumstances and that the most that should be allowed was to put a question to the expert who had already prepared a report. In a case where a substantial sum was involved, if there was disagreement, the issue was whether to ask questions or get your own expert’s report. If questions did not resolve the matter and a party, or both parties, obtained their own expert’s reports then a decision had to be reached as to what evidence should be called. The decision should not be taken until there had been a meeting between the experts involved. It was as a last resort that you accepted that it was necessary for oral evidence to be given by the experts before the court. In the present case the judge should have ordered that there be an opportunity for the claimant to be examined by another expert.