Allen v Burne

A court may control the expert evidence in a retrial. A party has no indefeasible right to select or call a preferred expert without prior direction, although case management must remain vigilant where it threatens a fundamental right to a fair trial. A rehearing de novo ordinarily requires the judge to start afresh, but does not ordinarily reopen the parties’ evidence or permit a different expert. A restriction will not warrant a second appeal where the party retains a sufficient evidential and argumentative platform, including other relevant expert evidence and use of a disclosed report in questioning the opposing expert. Permission was therefore refused.

The applicant’s personal injury claim against a general practitioner had previously succeeded on liability, but the Court of Appeal allowed the defendant’s appeal and directed a retrial: [2006] EWCA Civ 24. During preparation for the retrial, Master Yoxall refused permission to replace the applicant’s general-practice expert, Dr Isaac, with Dr Grenville. HHJ Mackie QC upheld that decision.

The applicant argued that the order was not ordinary case management. He contended that it impaired his right to a fair trial, created inequality of arms, and that the earlier order for a full rehearing or rehearing de novo entitled him to call different expert evidence. The central issue was whether the proposed appeal raised an important point of principle or practice, or another compelling reason for a second appeal.

Permission to appeal was refused.

1. Sedley LJ held that the refusal to substitute the applicant’s general-practice expert was a case-management decision. Under the modern procedural regime, a party has no indefeasible right to select and call lay or expert witnesses without prior court intervention. The court must nevertheless remain vigilant where case management trenches upon fundamental rights in litigation.
2. The restriction did not seriously preclude the applicant from advancing the case that had succeeded at the first trial. Existing evidence and arguments remained available. Neurosurgical evidence could legitimately address the Bolitho issue, and Dr Grenville’s disclosed report could be put to the respondent’s expert, Dr Lewis. The applicant was not required to call Dr Isaac. These routes meant that there was no serious disadvantage and no unlawful exercise of case-management power.
3. The matter therefore did not raise an important point of principle or practice and was not an apt case for a second appeal. Even if the appeal were entertained, the applicant could not show that Master Yoxall had exercised the court’s powers in a manner impugnable in law.
4. Wilson LJ agreed with the result but gave additional guidance. A full rehearing or rehearing de novo starts the second judge from the beginning and, absent consent and good reason, carries forward none of the first judge’s findings. It does not ordinarily entitle either party to reassemble the evidence or call different experts. Further or different evidence may exceptionally be allowed to fill a lacuna or remedy a deficiency, particularly where the appellate judgment ordering the rehearing indicates that basis.
5. Sedley LJ also stressed, as an obiter observation, the continuing importance of alternative dispute resolution to the parties and the administration of justice.

• Court of Appeal (Civil Division): On the present application, refused permission to appeal from the case-management decision.
• High Court of Justice, Queen’s Bench Division: HHJ Mackie QC upheld Master Yoxall’s refusal to permit replacement of the applicant’s general-practice expert.
• Master Yoxall: Refused permission to replace Dr Isaac with Dr Grenville.
• Court of Appeal (Civil Division): In the earlier proceedings, allowed the defendant’s appeal against the liability decision and directed a retrial: [2006] EWCA Civ 24.