Daniels v Walker (Practice Note)

Agreement to instruct a single joint expert does not prevent a party from obtaining evidence from another expert. The court retains a discretion under the Civil Procedure Rules 1998 to permit further information where the party has reasons that are not fanciful for considering a challenge to the joint report.

The discretion must serve the overriding objective and restrict expert evidence to what is reasonably required. Proportionality is important. In a substantial claim, a further examination and report may be justified; in a modest claim, written questions to the joint expert may suffice. The usual course is questions, expert reports where needed, a meeting of experts, and oral expert evidence only as a last resort.

The claimant, seriously injured as a child in a road accident, required lifelong care. Liability was admitted. The material dispute concerned whether his future care required full-time residential provision or a lesser regime.

The parties had jointly instructed an occupational therapist, whose care report was adverse to the defendant insurer's assessment of likely costs. The defendant sought permission for the claimant to be examined by a second occupational therapist. His Honour Judge Coles QC, sitting in the High Court, ultimately refused further expert evidence and instead permitted written questions to the joint expert.

The defendant appealed with the judge's permission. The central issue was whether agreement to a joint expert's report prevented the defendant from obtaining a further expert report before deciding whether to challenge that evidence.

1. Appeal allowed. Lord Woolf MR, with whom Latham LJ agreed, held that the judge had focused on the wrong question. The issue was not simply whether the defendant should be allowed to call a second expert at trial. It was whether the defendant should first be allowed to obtain a further occupational therapist's report before deciding what, if any, challenge should be made to the joint expert.
2. Joint instruction of an expert is ordinarily the proper starting point, and it will often resolve the issue. It does not, however, bar either party from obtaining another report or relying on another expert where there are non-fanciful reasons for seeking further information. The court must exercise its discretion under the overriding objective in Civil Procedure Rules 1998 Part 1.1 and the restriction in Part 35.1 to expert evidence reasonably required to resolve the proceedings.
3. The proportionate course depends on the amount, importance and circumstances of the case. A modest claim may justify only written questions to the joint expert. Where a substantial issue remains, the usual progression is to ask questions, obtain any necessary further reports, require the experts to meet, and admit oral expert evidence only if disagreement remains. This sequence reduces cost and narrows issues.
4. Here, the substantial financial consequences of the care issue made a further examination reasonable. The claimant was to be examined by the defendant's proposed expert. There was no suggestion that the examination would cause undue distress. Although successful, the defendant was ordered to pay the appeal costs because its unclear correspondence and presentation below had caused the appeal.
5. Article 6 of the European Convention was irrelevant. The court distinguished Mantonvanelli v France (1997) EHRR 370, which concerned non-disclosure of material affecting a party's presentation of the case, rather than the ordinary management of expert evidence.

• Court of Appeal (Civil Division): In [2000] EWCA Civ 508, the court allowed the defendant's appeal and permitted a further occupational therapy examination.
• High Court (Queen's Bench Division): His Honour Judge Coles QC refused permission for further expert evidence on the care issue and allowed written questions to the jointly instructed expert instead. No citation was stated.