Hubbard & Ors v Lambeth Southwark & Lewisham Health Authority & Ors

An order directing experts to meet is discretionary, not automatic. After expert reports have been exchanged, such meetings will usually be ordered because they can identify and narrow issues, even in complex litigation. A party’s objection alone is insufficient; a good reason must be shown. The safeguards in CPR 35.12 mean that discussions cannot generally be referred to at trial and agreements do not bind the parties without express agreement. Article 6 does not itself prevent this form of case management. Whether lawyers attend is case-specific. The court should not state a general rule while relevant practice guidance remains unsettled. An independent neutral chair may be considered in an appropriate case.

The appeal arose from four clinical negligence actions involving children with dystonia. The claimants alleged that the defendants’ doctors had failed to diagnose the condition and begin appropriate treatment. The proceedings involved extensive pleadings, numerous allegations and expert evidence from several disciplines.

At a case management conference, Master Ungley directed the experts to meet and discuss the case. He later ordered further discussions unless all parties agreed otherwise. The claimants challenged the direction, relying on the complexity of the issues, concerns about the professional sensitivity of their experts, and Article 6. In the alternative, they sought an order that lawyers attend the meetings.

The Master referred the issue directly to the Court of Appeal under CPR 52.14. The central questions were whether the court generally had power to direct expert meetings and whether lawyers should attend in this case.

1. Appeal dismissed. Master Ungley had been entitled to direct the experts to meet and discuss the case. The order was a proper exercise of case-management discretion.
2. CPR 1.4 requires the court to further the overriding objective through active case management, including identifying issues at an early stage and encouraging co-operation. CPR 35.12 confers a discretion because the rule provides that the court may order experts to discuss matters. It imposes no universal duty to make such an order.
3. The ordinary approach is that, following exchange of expert reports, the court will usually direct experts of like discipline to meet. Such meetings commonly narrow the issues, including in complex cases, and produce time and cost savings. A mere objection is insufficient. A party seeking to avoid a meeting must show a good reason, although the court retains discretion to decline an order where the meeting would serve no useful purpose.
4. The safeguards in CPR 35.12(4) and (5) address the principal fairness concerns. The content of the discussions cannot be referred to at trial without agreement, and an agreement reached by experts does not bind the parties unless they expressly agree to be bound. The Article 6 objection therefore added nothing separate: any legitimate concern could be reflected in the discretionary order.
5. No general ruling was made on the attendance of lawyers, since practice guidance was still developing. In this case lawyers should not attend. Experienced solicitors could prepare suitable agendas, and the agreed tape recording would reveal any misunderstanding or improper influence. The possible benefits of attendance were outweighed by the costs and the risk of lawyers influencing the experts.
6. Lady Justice Hale agreed with the result and suggested, as an obiter matter, that an independent neutral person, probably legally qualified and experienced in the relevant litigation, might chair expert meetings in suitable cases. No such order was made. There was no order as to costs.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Master Ungley’s case-management order and made no order as to costs.
• Queen’s Bench Division: Master Ungley directed the experts to discuss the case on a without prejudice basis unless all parties’ solicitors agreed otherwise, with consequential directions.