UK: Clyde & Co Success: Claimant Refused Relief From Sanctions For Expert Evidence Exceeding Court Order

Jason Tully v Exterion Media (UK) Ltd (in liquidation) (1) and London Underground Limited (2) [2020] EWHC 1119 (QB)

The High Court recently refused an application seeking relief from sanctions after it was held that the Claimant had acted in excess of what was permitted in a Consent order regarding additional expert medical evidence.

Master McCloud was asked to consider whether the Claimant, having previously been granted permission to seek further medical expert opinion limited to their own witness statement and surveillance served by the Defendants, could allow their expert to conduct a re-examination under the guise of that permission, thus providing a wholly updated report.

The Court held that the medical opinion should have been limited to those issues, dismissing the Claimant's arguments that it was right and proper to allow their expert to carry out a further examination.

Clyde & Co successfully acted for the First Defendant in response to the application for relief from sanctions and the subsequent discontinuance of the claim. A copy of the judgment can be found in the link below.

Background

The Claimant claimed to have sustained a serious injury as a result of an accident at work which was pleaded in excess of £1m. The Defendants' case was that the Claimant did not sustain the injuries as claimed, nor that the injuries were as serious as alleged. Surveillance evidence in support was served.

The parties served their respective expert medical reports. Despite having permission to do so, the Claimant chose not to serve an updated report. Following exchange of those experts' reports and witness statements, the Defendants served their surveillance footage to demonstrate that the Claimant's injuries were not as severe as claimed.

In November 2018, the Claimant was given permission to serve a witness statement responding to the surveillance footage and both parties were also given permission to serve additional expert reports limited to issues arising from (i) the surveillance footage and (ii) the Claimant's witness statement. However, the Claimant served a full report following a medical examination being carried out and the expert having seen the surveillance footage before the examination took place. Furthermore, the Claimant's expert also commented on the evidence of the Defendants' expert.

The Defendants declined to proceed with the preparation of joint statements from the experts until the issues were resolved over the alleged breach of the Court order and an application was made by the Claimant for relief from sanctions.

Application for relief from sanctions

The Claimant argued that the order was not breached, and that it was right and proper to have instructed their expert to re-examine and produce the new updating report given the passage of time since the first report.

As there had been no advance notice of the surveillance, it was submitted there had been no reason for the Claimant's solicitor to anticipate that the Defendants' expert was going to disagree with the Claimant's expert. Therefore, there was no reason to have made use of the original permission to serve a full updating report.

Furthermore, the Consent order granting permission to obtain expert evidence limited to surveillance did not expressly exclude a re-examination. This should not, it was argued, have been seen as a situation requiring relief from sanctions but a case requiring for a collaborative approach.

The additional report was to enable the expert to comply with his duty to the Court and to ensure a level playing field. The Claimant argued it would not be right to dictate to an expert whether he should examine the Claimant, if that was what he said he needed to do to comply with his duty to the Court further to CPR Part 35.3.

In response, we argued that the Claimant's actions were in breach of the Court order permitting the service of expert opinion limited to the issues raised in the surveillance footage and the (explanatory) witness statement of the Claimant.

The right to serve a full and updated medical report was not the same as permission to obtain a report limited to the surveillance issues. We submitted that this misapplied the concept of the duty of an expert to assist the Court, seeking to expand it to enable a solicitor to serve material and seek a wider update than permitted.

If the Claimant required a full and updated medical report, a previous order made in April 2018 had allowed such a report yet the Claimant had deliberately elected not to obtain one at that time. Furthermore, the surveillance footage ought not to have been supplied beforehand to the expert as this approach effectively gave the Claimant an advantage in gaining a sequential exchange of material.

Outcome

Master McCloud found that the Claimant's actions breached the November 2018 order and that the Claimant chose to modify the limited permission without asking the Court, by obtaining a full updated report. It would be unfair to the Defendants to allow the report to be relied upon.

The report exceeded the permission allowed, meaning the "playing field was rendered uneven" in favour of the Claimant. The correct approach would have been to obtain permission from the Court to serve the full updated report out of time, on the basis of the April 2018 order. The expert should not have been provided with the surveillance evidence at this stage. Once the expert had updated his original report, then he should have been asked to produce a new report in light of the surveillance.

The Claimant has now discontinued his claim against the Defendants in its entirety.

What can we learn?

• This case demonstrates the consequences of not seeking the Court's permission to modify a limited permission for expert evidence (and other evidence). This decision should serve as a reminder to parties that should circumstances change it is important to go back to Court to seek permission.
• If a Court order expressly defines what matters an expert is allowed to produce a report on, then the parties should ensure that the express terms are complied with by the expert and to not go beyond the terms ordered. Even though the obligation of an expert is to assist the Court, this does not allow the instructing solicitor to expand the scope of an order for a report simply because the expert considers it necessary.

The claim was handled by Paul Smith (Legal Director) of Clyde & Co LLP, Casualty, London on behalf of the First Defendant. Andrew Davis of Crown Office Chambers provided representation at Court on behalf of the Defendants.