Beck v Ministry of Defence

A court may permit a party to replace an unsatisfactory medical expert, but it must guard against expert shopping and unnecessary further examination of the opposing party. The applicant bears the burden of showing good reason for another examination.

The applicant need not necessarily disclose the first report while permission remains undecided, because refusal could compel reliance on an expert already discredited. Once permission is taken up, however, disclosure of the abandoned report should ordinarily be a condition of instructing the replacement. This enables the opposing party to test whether the application arose because the first expert's conclusions were unwelcome.

The claimant alleged that negligent psychiatric treatment during his RAF service exacerbated his illness and destroyed his employment prospects. The Ministry of Defence instructed Dr Goodhead, who examined the claimant and produced a report. Although the report supported the defence on liability, the Ministry lost confidence in its presentation and reasoning and sought permission for another psychiatrist to examine the claimant.

A district judge granted permission and stayed the action pending the further examination. His Honour Judge Langan QC dismissed the claimant's first appeal. On the claimant's second appeal, the central issue was whether the Ministry could replace its expert without disclosing Dr Goodhead's report, either before permission was decided or as a condition of exercising that permission.

1. Appeal allowed to a limited extent. The Court of Appeal unanimously upheld permission for the Ministry to instruct a replacement psychiatrist, but imposed a condition requiring immediate disclosure of Dr Goodhead's report if that permission was taken up.

2. Simon Brown LJ held that the principles in Lane v Willis [1972] 1 WLR 326 remained applicable. A further medical examination invades personal liberty and must be reasonable in the interests of justice. The party seeking it bears the burden of showing that it cannot properly prepare its case without the examination. The court must also protect a claimant against unnecessary examinations and discourage expert shopping.

3. Different considerations apply before and after the court decides whether to permit substitution. Before that decision, it may be reasonable to withhold the existing report. Detailed criticism at that stage could seriously prejudice the applicant if permission were refused and it were then compelled to rely on the original expert. The judges below were entitled to accept that concern in this case.

4. Once permission to instruct a new expert has been granted, the balance changes. There was no proper reason to continue withholding the discarded report. Disclosure enables the opposing party to determine whether the application resulted from conclusions which were more favourable to that party than the applicant had expected. Although Simon Brown LJ did not exclude every conceivable case in which disclosure might be unnecessary, he considered such circumstances difficult to imagine and absent here.

5. Ward LJ agreed that disclosure of the abandoned report is an appropriate check against expert shopping. Lord Phillips MR added that a claimant need not take on trust an assertion that replacement is sought merely because the first report was poorly expressed. Conditional disclosure both guards against abuse and permits justice to be seen to be done.

6. Dr Goodhead's report and related documents were therefore ordered to be disclosed in accordance with the Civil Procedure Rules. There was no order as to the costs of the appeal; otherwise, the order below remained undisturbed.

1. Court of Appeal (Civil Division): The claimant's second appeal was allowed unanimously to the limited extent that permission to instruct a replacement psychiatrist was made conditional upon disclosure of the original expert's report. The remainder of the order below was undisturbed: [2003] EWCA Civ 1043.

2. High Court, Queen's Bench Division: His Honour Judge Langan QC dismissed the claimant's appeal and left in place the stay pending examination by a replacement expert.

3. County Court: District Judge Fairwood granted the Ministry permission to change psychiatric experts and stayed the action pending the claimant's further examination.