Background
Recent comment in the judgment of Master Cook in the case of Aderounmu v Colvin [2021] EWHC 2293 is another example of what can go wrong with the joint statements of experts following a joint discussion:
61. [The psychiatrists] produced a joint statement dated 22 December 2020. Unfortunately, this is an overly-lawyered document comprising 34 questions many of which had numerous sub-clauses and in places descended into cross-examination. This is not helpful to the court. A joint statement should aid the understanding of key issues and each expert’s position on those issues.
76. The [neuro-psychologists’] joint statement dated 14 January 2021 suffered from the same vice as that of the psychiatrists; it is an overlong overly-lawyered document which asked many questions which were nothing more than a cross-examination of the experts on their respective approaches, or attempts to advance the arguments on behalf the parties’ respective positions. Of the 41 questions posed only about two were of assistance to me in understanding the issues on which the experts agreed, the issues on which they disagreed and the reasons for their disagreement.
77. Parties should resist the approach that has been taken in this case. A joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties’ respective cases. Written questions should be put to experts under CPR 35.6 within 28 days of the service of an expert’s report.
A similar problem arose in Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 where the judge said:
34. Both experts provided clear reports that were easy to read; thorough and attractively presented with useful diagrams attached. However, their joint statement was disappointing. It was 60 pages long and did not fulfil the purpose identified in CPR 35PD 9.2 “to agree and narrow issues”. It seemed to me that the difficulty may have arisen not through the fault of the experts but through the way in which the agendas were drafted. I say “agendas” because, for reasons not explained to me, there had apparently been two separate agendas that the experts were required to consider. Both involved repetitive questions for the experts and far from producing a focus on the real issues, the result was a document that served only to confuse rather than assist.
35. I can see no good reason why the parties were unable to agree a single agenda in this case. Perhaps greater input from Counsel may have assisted. …Frankly, the approach to the joint statement in this case achieved nothing of value.
There is, in these cases, criticism of the lawyers involved, but it is the experts who are responsible for producing, and signing off on, a joint statement. The experts must therefore understand what it is they are supposed to be doing and take responsibility for it, and if necessary take action to remedy any difficulties that arise.
The procedural framework
Let’s go back to what the purpose of the joint discussion is supposed to be. The Practice Direction to Part 35 of the Civil Procedure Rules is quite clear and provides:
9.2. The purpose of discussions between experts is not for experts to settle cases but to agree and narrow issues and in particular to identify:
(i) the extent of the agreement between them;
(ii) the points of and short reasons for any disagreement;
(iii) action, if any, which may be taken to resolve any outstanding points of disagreement; and
(iv) any further material issues not raised and the extent to which these issues are agreed.
The purpose of doing this is to assist the court at the trial, and the parties both at the trial and in the lead up to it, in understanding precisely what expert issues remain to be determined, and where each expert stands on those issues on which they do not agree.
Therefore, left to their own devices the experts should, in the course of the joint discussion, ascertain and set out in the joint statement their points of agreement, the points of disagreement and the reasons for such disagreement, and whether anything could be done to resolve the remaining areas of disagreement between them. This should be relatively brief. Both experts have already produced written reports in which they should have explained their positions in some detail, so that the joint statement should only need to set out the positions briefly.
To make matters as clear as possible to the lawyers, it is necessary to separate the points of agreement from the points of disagreements – it is surprising how many joint statements fail to do this – numbering each point, and, in relation to the points of disagreement, summarising in relation to each one the basis for the disagreement. In doing this, what is written must be easily understood by a lawyer, and in terms of the audience’s medical expertise it may be useful to imagine that the experts are addressing year one medical students. In this way, the minds of all involved in the litigation can be focussed on the reasons why the experts have been unable to agree, which will form the principal area of investigation (and cross-examination) at the trial.
The Practice Direction contains this further important statement:
9.7. Experts must give their own opinions to assist the court and do not require the authority of the parties to sign a joint statement.
Related to this, the Guidance for the Instruction of Experts in Civil Claims (the Guidance) provides:
77. Lawyers must not instruct experts to avoid reaching agreement on any matter within the experts’ competence.
The joint statement is the experts’ document, not the lawyers.
To reinforce these points, the joint statement is required, by paragraph 80 of the Guidance, to include:
1. A brief re-statement that experts recognise their duties AND
2. An express statement that the experts have not been instructed to avoid reaching agreement on any matter within their competence.
Agenda
In Aderounmu v Colvin and Saunders it was the lawyers who contributed to creating the ‘over-lawyerly’, unhelpful and overlong joint statement. Lawyers do have a role in relation to producing an agenda. The Practice Direction provides:
9.3. Where the experts are to meet, the parties must discuss and, if possible, agree whether an agenda is necessary, and if so attempt to agree one that helps the experts to focus on the issues which need to be discussed. The agenda must not be in the form of leading questions or hostile in tone [my emphasis].
It seems likely that the agenda(s) provided to the experts in these cases did not help the experts focus on the issues needing to be discussed – identifying the areas of agreement, disagreement and the reasons for disagreement – and that they were in the form of cross-examination, and therefore quite probably contained leading questions which were hostile in tone. It is not the purpose of the joint discussion to deal with such questioning and it is not the role of the joint statement to record answers to such questions, although there may be some scope for this separate from the joint discussion in questions to experts on their reports under CPR 35.6.
The Guidance provides in relation to the drafting of an agenda:
75. Primary responsibility for preparation of the agenda should normally lie with the parties’ solicitors
76. The agenda should indicate what has been agreed and summarise concisely matters that are in dispute.
An agenda may be used quite properly by lawyers to ensure that the experts address the issues which require to be addressed for the purpose of the litigation, and to ensure that any legal tests relevant to that are properly considered and applied. That is an important role for the agenda. For example, if the experts have failed properly to address the standard of proof or the Bolam test or rules of causation in relation to damages then the agenda should seek to get them to do so.
If the expert is uncomfortable because of the length of an agenda or the nature of its questioning or the hostility it demonstrates, then they should raise their concerns with their instructing solicitor, referring if they wish to the Practice Direction and the Guidance. If the solicitor fails to address this adequately, whether the agenda is one produced by them or the other side or both sides, then the expert can resort to seeking directions from the court as to whether the questions should be answered, under CPR 35.14. For more on seeking directions from the court, see Section 4.6.2 in Writing Medico-Legal Reports in Civil Claims – an Essential Guide – Eyre and Alexander.
While the experts must ensure that the joint statement deals with the matters set out in 35PD 9.2 (above), they should also (and if they consider it appropriate, separately within the joint statement) answer the questions in the agenda(s) unless an order is obtained from the court releasing them from having to do so.
Learning points
The joint statement is an important document. It ought to be possible to read it and to understand the key issues and each expert’s position on those issues. Sometimes less is more as far as the agenda is concerned.
Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground (Yip J in Saunders v Central Manchester University Hospitals, above).
Many difficulties with the joint statement can be avoided if the expert follows this guidance:
1. Prepare for the meeting by:
- Identifying the issues between the experts – both legal and expert
- Analysing the evidence which relates to the expert issues
- Preparing a process for the meeting to ensure that the functions of a joint discussion are properly and fully addressed – areas of agreement, areas of disagreement and reasons for disagreement.
2. Remember that the precise wording of the joint statement is crucial. The audience is made up of lawyers, to whom words matter, and the expert is working in the legal arena and therefore needs to apply the appropriate legal tests accurately.
3. Produce in the joint statement a document that a non-medically qualified person can read in order to understand the key issues and each expert’s position on those issues.
Giles Eyre is a retired barrister and an Associate Member of Chambers at 9 Gough Chambers, London, having practised for many years in the field of injury claims and at the interface of law and medicine. He continues giving training and presenting workshops for experts on providing effective expert reports and evidence, and on medico-legal issues, in his own right and for training organisations. He is co-author of Writing Medico-Legal Reports in Civil Claims – an essential guide (2nd edition 2015), and author of Clinical Practice and the Law – a legal primer (October 2018) both published by Professional Solutions Publishing and available through book retailers or from the author geyre@9goughchambers.co.uk, and regularly writes articles on these subjects. He blogs on issues relevant to court experts in civil claims at www.Medico-LegalMinder.net.