Arden v Malcom

On an appeal from a case management decision concerning expert evidence, the appellate court must respect the first-instance judge’s discretion unless the decision is plainly wrong or falls outside the generous ambit of that discretion. A party need not propose a joint expert before obtaining expert advice, although expert evidence should not ordinarily be produced without proper notice shortly before a hearing. In life-expectancy disputes, statistical evidence should normally be introduced through the treating or other clinical experts. A separate statistician’s report will normally be required only if those experts disagree on a statistical issue. The court may therefore refuse immediate permission for a statistician’s report while directing questions or further discussion with the existing experts.

The claimant sustained severe traumatic brain and optic-nerve injuries in a road accident. Her neurologist and the defendant’s expert initially stated in a joint report that her life expectancy was normal. The defendant later obtained a statistical report from Professor Strauss, which estimated a reduced life expectancy, after care evidence indicated that substantial damages might depend on the issue.

At a case management conference, His Honour Judge O’Brien refused permission to rely on the report, principally because it was late, the existing experts had agreed, and no joint expert had been proposed. The defendant appealed. The central issue was whether permission should be given for the statistician’s report immediately, or whether the statistical material should first be addressed through questions or directions to the existing clinical experts.

1. The appeal was dismissed. Permission to rely immediately on Professor Strauss’s report was refused, although the court invited the parties to agree questions or directions for Dr Hardie and Professor Trimble.

2. The correct approach to an appeal from a case management decision is that stated in Royal & Sun Alliance Insurance v T&N Limited [2002] EWCA Civ 1964. The appellate court should respect the first-instance judge’s accumulated knowledge and should not interfere where the correct principles were applied, unless the decision was plainly wrong or outside the generous ambit of the discretion.

3. The judge’s third reason, that the defendant had not proposed a joint expert, was not well founded. A party is not bound to propose such an expert, although the court may consider that course appropriate. The judge was nevertheless right to object to the report being produced on the day of the hearing without proper notice.

4. The position had materially changed since the case management conference. The issue of life expectancy was not closed, and the existing joint statement did not adequately explain the experts’ positions. Questions or directions were therefore required to clarify their evidence.

5. Following the approach in Royal Victoria Hospital v B (A Child) [2002] EWCA Civ 348; [2002] PIQR Q10, statistical evidence should normally reach the court through the clinical experts, who remain the primary witnesses on the essentially medical issue. A separate statistician’s evidence would normally be required only if the clinicians disagreed on a statistical matter.

6. Although the amount at stake and the absence of substantial prejudice might have supported admitting a report under the approach indicated in Cosgrove v Pattison, the real issue was the appropriate means of addressing the evidence, not whether life expectancy could be raised at all. The immediate report was therefore refused.

• High Court (Queen’s Bench Division): The appeal from the case management decision of His Honour Judge O’Brien dated 11 September 2006 was dismissed. Permission to rely immediately on the statistical report was refused, with directions contemplated for questions to the existing experts.