R v R

Guidance concerning jointly instructed experts does not fetter the court’s obligation to apply the overriding objective or its discretion to receive oral evidence. A joint expert’s report will ordinarily be the evidence, and questioning should be restrained and directed to clarification. However, oral evidence may be appropriate where the report contains an apparent conflict, the subject involves material uncertainty, or the relevant medical knowledge and treatment options are developing. An appellate court may interfere with the decision to exclude such evidence where the judge’s reasons cannot be sustained and the result is plainly wrong.

The claimants brought negligence proceedings arising from the alleged wrongful birth of a child suffering from a rare genetic disorder. Liability had been admitted, and the proceedings concerned the assessment of damages, including the child’s life expectancy and the possible availability and efficacy of experimental treatment.

The parties had jointly instructed a medical professor as an expert. The judge admitted his written report and written answers but refused permission for oral evidence and cross-examination. The National Health Trust appealed. The central issue was whether the judge had been right to exclude oral questioning of the jointly instructed expert.

1. Appeal allowed. The judge’s order excluding oral evidence and cross-examination was set aside. The defendant was permitted to question the jointly instructed professor on the identified issues.
2. A jointly instructed expert has a duty under CPR 35.3 to assist the court objectively, without regard to the interests of the instructing party. CPR 35.6 restricts written questions to clarification, but those provisions do not create an inflexible bar on oral evidence or cross-examination.
3. The guidance in Peet v Mid Kent Health Care Trust [2002] 1 WLR 210 was not intended to fetter the court’s discretion. The normal position is that the single joint expert’s report is the evidence and that amplification or cross-examination should be limited. The court must nevertheless apply the overriding objective in CPR 1.1 and make the order that best enables it to deal justly with the issues.
4. There was a strong case for oral evidence because the report appeared internally inconsistent as to the child’s position within the expected life-expectancy range; the availability, licensing and likely efficacy of new treatment involved substantial uncertainty; and the condition was rare, complex and at a developing stage of medical knowledge. Restrained questioning could clarify assumptions, speculation and the implications of disclosed material without becoming hostile or disproportionate.
5. The judge’s reasons did not adequately address those matters. The Court of Appeal could interfere with the discretionary decision because the reasons could not be sustained on examination and the result was plainly wrong. The appeal was allowed with costs. The order under section 11 of the Contempt of Court Act 1981 continued.

• Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed against the order of Wright J refusing oral evidence and cross-examination of the jointly instructed expert.
• High Court of Justice, Queen’s Bench Division: The judge admitted the expert’s written report and answers but excluded oral evidence and further cross-examination.