Stallwood v David & Anor

Permission to rely on additional expert evidence after an experts’ discussion is exceptional. A party’s dissatisfaction with its own expert’s changed or modified opinion is insufficient. The applicant must show good reason to suppose that the revised opinion cannot properly or fairly be supported, for example because the expert acted outside the expert’s expertise or brief, or was incompetent. The court must then decide whether the further evidence is reasonably required to resolve the proceedings, having regard to all the circumstances and the overriding objective. Case-management decisions must address relevant matters, including the likely delay and any special features affecting the justice of allowing or refusing the evidence.

The claimant appealed decisions made by HHJ Cotran at a case management conference in the Shoreditch County Court. The claimant sought permission to rely on evidence from a further orthopaedic surgeon after her existing expert substantially modified his opinion following discussion with the defendants’ expert. The judge refused permission, principally because the accidents were five years old, trial was imminent, and the application arose from the existing expert’s changed opinion. The central issue was whether, and in what circumstances, a party dissatisfied with its expert’s opinion after an experts’ discussion may adduce additional expert evidence.

1. The appeal was allowed and the application was considered afresh. A case-management decision may be reconsidered on appeal where the judge failed to take relevant matters into account or exceptional circumstances justify a fresh decision.
2. Under CPR 35.12, experts’ discussions are intended, where possible, to produce agreement. An expert may therefore modify or change an opinion. That change alone does not justify instructing another expert, and ordinarily does not show that further evidence is reasonably required under CPR Part 35.1.
3. Agreement between experts does not bind the parties unless they expressly agree to be bound. Additional evidence may therefore be permitted in a rare case where there is good reason to suppose that the first expert agreed or modified the opinion for reasons that cannot properly or fairly support it, such as acting outside the expert’s expertise or brief, or incompetence. The applicant will usually need to make appropriate enquiries of the expert before applying.
4. The court must consider all the circumstances and the overriding objective. Relevant matters include the likely delay, the stage of the proceedings, and any special features of the case. The approach in Cosgrove v Pattison to the parties’ objectively understandable sense of grievance was apposite, although that case concerned a single joint expert.
5. The claimant had not shown that her expert’s revised opinion was unsound. However, the exceptional manner in which the original application was handled, including interruptions and apparent reliance on the judge’s personal experience rather than the evidence, created a special feature. In those circumstances justice required permission to rely on the further report. The parties were directed to agree the terms of the order.

1. High Court (Queen's Bench Division) — [2006] EWHC 2600 (QB): appeal against the Shoreditch County Court’s refusal of permission allowed; permission granted to rely on the further orthopaedic expert’s evidence.
2. Shoreditch County Court — HHJ Cotran refused permission at the case management conference on 7 March 2006.