Peet v Mid-Kent Healthcare Trust (Practice Note)

A party may not have private access to a single joint expert without every other instructing party's consent. The joint instruction requires openness about the information supplied to the expert and the expert's resulting views.

In substantial medical-negligence claims, non-medical expert evidence should ordinarily come from a single joint expert unless special circumstances justify another course. The expert's written report should normally constitute the evidence. Amplification, cross-examination or separate expert evidence requires the court's permission and a good reason. The amount at stake does not, by itself, justify departure from that approach.

The claimant, an infant with severe cerebral palsy following his birth, brought a medical-negligence claim against an NHS trust. The trust accepted 95% liability, leaving damages to be assessed. Master Turner directed that seven specified fields of non-medical quantum evidence should be addressed by jointly instructed experts.

The claimant's parents wished to confer privately with the joint experts, accompanied by their lawyers but without the defendant's representative. Master Ungley prohibited such a conference unless the parties gave written consent. The claimant appealed, contending that private consultation was needed to understand and test the experts' opinions and to advise upon settlement.

The central issue was whether one instructing party could obtain sole access to a single joint expert without the other party's consent.

1. Appeal dismissed unanimously. Lord Woolf LCJ held that a private conference between one party, its lawyers and a single joint expert, without the other party's consent or presence, was inconsistent with the structure and purpose of joint expert evidence. The process must remain open so that both parties know what information has been placed before the expert. An expert may nevertheless interview a claimant or the claimant's parents when gathering information needed to prepare the report.

2. Lord Woolf LCJ held that the court's power under Part 35.7 of the Civil Procedure Rules to direct evidence from one expert is unrestricted and must be exercised consistently with the overriding objective. In the great majority of medical-negligence cases requiring non-medical evidence, a single joint expert should be used unless special circumstances exist. Controlling the number and use of experts promotes proportionality, limits costs and reduces delay and distress.

3. The single expert's written report should ordinarily stand as the evidence on the issues it covers. The court retains discretion to permit amplification or cross-examination, but both should be restricted as far as possible. The court may also permit a party to instruct and call its own expert after a joint report has been obtained, but only for good reason. Substantial sums at stake do not alone provide that reason.

4. Simon Brown LJ agreed that sole access without consent should never be permitted. A jointly instructed expert owes equal duties of openness and confidence to both instructing parties, as well as an overriding duty to the court. Concealing either unilateral instructions or the expert's responsive views is incompatible with that relationship.

5. Buxton LJ agreed. Written questions under Part 35.6 provide adequate machinery for clarification and, with informed consideration of the report, ordinarily enable lawyers to advise upon the likely outcome and any proposed settlement. Private oral probing would be unfair to the expert and could undermine the reliability which the court places upon the resulting evidence.

1. Court of Appeal: The claimant's appeal was dismissed unanimously, with costs. The court upheld the prohibition on a unilateral private conference with jointly instructed experts: [2001] EWCA Civ 1703.
2. High Court, Queen's Bench Division: Master Ungley refused the defendant's request to attend the claimant's proposed conference but ordered that the claimant could not conduct a conference with a single joint expert without the parties' written consent. He granted permission to appeal. No citation is stated.