Mutch v Allen

Under CPR Part 35.6, written questions may be used not only to clarify an expert report but, with the court’s permission, to obtain an expert’s opinion on a relevant matter within the expert’s expertise that the report did not address.

Where permission has been given and the opposing party has cooperated in obtaining the expert’s answer, the answer should not subsequently be excluded merely because it assists the party who asked the questions. Expert evidence concerning the causal effect of failing to wear a seat belt may be highly material to contributory negligence. Its weight remains for the trial judge. Procedural fairness may be addressed by permitting oral evidence and cross-examination, or by allowing further expert evidence where the proposed challenge is not fanciful.

The claimant brought a substantial personal injury claim arising from a road traffic accident in which he was injured as a rear-seat passenger and was not wearing a seat belt. The defendant alleged contributory negligence and sought medical evidence about whether the claimant’s injuries would have been less severe had he been restrained.

At a case management conference, permission was given under CPR Part 35.6 for written questions to be put to the claimant’s medical experts. After further accident evidence was supplied, Professor Solomon answered that the claimant’s principal pelvic injury would probably have been avoided had he worn an effective seat belt.

At a later pre-trial review, the judge excluded that answer and revoked the order requiring another expert to answer similar questions. The issue on appeal was whether the answers were admissible and whether the permission previously granted should be revoked.

1. Appeal allowed. The order excluding Professor Solomon’s letter and revoking the permission for written questions was set aside. The appeal was allowed with costs to be assessed and set off against damages.
2. Although CPR rule 35.6 ordinarily limits written questions to clarification, the court had expressly granted permission for the questions on 18 August 2000. The questions had been formulated in advance and administered without objection. The permission could not properly be undone merely because the resulting opinion assisted the defendant.
3. The causative effect of failing to wear a seat belt was a matter on which expert medical evidence was relevant and highly material. Had Professor Solomon been called orally, the defendant could have asked the same questions in cross-examination and relied on his answers.
4. CPR Part 35 is intended to ensure that experts contribute to the just disposal of disputes rather than serve exclusively the interests of the party instructing them. The overriding objective requires relevant material to be available in a cost-effective and expeditious form. Professor Solomon’s further opinion was admissible, subject to the trial judge’s assessment of the soundness of its factual and medical foundations.
5. Any procedural unfairness could be managed by calling Professor Solomon to give oral evidence, with both parties permitted to cross-examine him. The parties could also seek permission for further expert evidence where there was a better than fanciful basis for challenging his conclusions. The court noted that Daniels v Walker [2000] 1 WLR 1382 supported that approach.
6. The court considered that Patience v Andrews [1983] RTR 447 might create difficulty for a claimant seeking to show that the same injuries would have occurred despite seat-belt use, but stated that the decision appeared open to question. That issue was not decided on this appeal.
7. As to the dental expert who had not answered, both parties were given liberty to call their respective dental surgeons on the limited seat-belt issue. The court indicated that financial sanctions might be appropriate if the expert’s non-cooperation continued.

• Court of Appeal (Civil Division): Mutch v Allen, [2001] EWCA Civ 76. Appeal from the order made by Judge Hutton on 19 December 2000. The appeal was allowed and substitute directions were made.
• Bristol County Court / High Court judge sitting as deputy: On 19 December 2000, Judge Hutton excluded Professor Solomon’s answers and revoked the earlier permission requiring written questions to be answered.
• District Judge: On 18 August 2000, District Judge Singleton permitted written questions to the claimant’s existing medical experts under CPR Part 35.6.