Beaumont v Ministry of Defence

The usual rule in clinical-negligence litigation is that each party should call no more than one expert in a particular discipline. A second expert may be permitted only where the individual circumstances make that course necessary and just. The decision is fact-sensitive and requires consideration of the overriding objective, including equality of footing, proportionality, the value and importance of the claim, and the complexity of the issues. A treating professional’s reliance on professional expertise when giving factual evidence is ordinarily commonplace and does not, by itself, justify a second expert. The exceptional circumstances identified in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust were not present.

The claimant appealed against Master Yoxall’s refusal to permit him to rely on a second obstetric expert. The claim concerned alleged negligent management of his birth at an RAF hospital, resulting in cerebral palsy. The treating obstetrician, whose conduct was criticised, would give factual evidence and would inevitably rely on his professional experience and expertise. The claimant argued that this created an imbalance because the defendant would effectively have the evidence of both an independent expert and the treating consultant.

The appeal concerned whether the circumstances were sufficiently exceptional to justify departing from the usual limitation of one expert per discipline, having regard to the Court of Appeal’s decision in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust.

Appeal dismissed. Master Yoxall had not erred in refusing permission for a second obstetric expert.

1. The usual rule is that only one expert in a particular speciality should be called. The court retains a flexible, fact-sensitive discretion to permit additional evidence where the circumstances make that course just and necessary.
2. The court must consider the overriding objective and the overall circumstances, including equality of footing, proportionality, the amount and importance of the claim, the complexity of the issues, the likely additional cost and delay, and whether the court requires the assistance of further expert evidence.
3. The Court of Appeal’s decision in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust, [2003] EWCA Civ 1284, did not establish that a second expert could be permitted only where there were three effective experts on one side. It did, however, make clear that something exceptional was required before departing from the usual rule.
4. The effective imbalance in ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust was an important feature of that case. Here, the treating obstetrician would explain what he did and why, but would not give independent expert evidence on the applicable standard of care or medical causation. His reliance on professional expertise was a familiar feature of clinical-negligence litigation and did not make this case exceptional.
5. The proposed second expert would cover substantially the same ground as the first. The modest additional cost and trial time, the claim’s importance and value, and the treating doctor’s experience as an expert witness did not justify the exceptional course sought. Weight of numbers was not the decisive factor in evaluating expert evidence.

1. High Court (Queen’s Bench Division): the appeal against Master Yoxall’s case-management order was dismissed.
2. Master Yoxall: permission to rely on a second obstetric expert was refused.