Category: Guidance

When Part 35 questions are just too much!

geyre

I have recently blogged about Mustard v Flower [2019] EWHC 2623 (QB) in the context of covert recordings of expert examinations.  The case also had to consider the service of extensive Part 35 questions.  CPR 35.6 provides:

(1) A party may put written questions about an expert’s report (which must be proportionate) to –

(a) an expert instructed by another party; or

(b) a single joint expert appointed under rule 35.7.

(2) Written questions under paragraph (1) –

(a) may be put once only;

(b) must be put within 28 days of service of the expert’s report; and

(c) must be for the purpose only of clarification of the report,

unless in any case –

(i) the court gives permission; or

(ii) the other party agrees.

The judge (Master Davison) regarded the questions as relevant and addressing areas of omission in the defendant’s experts’ reports (in the light of clarification of certain evidence in the case) but also considered the sheer volume of the questions to be unprecedented.  Some of the questions required consideration of a mass of literature appended to the questions, including literature not referred to in the expert’s report.  With the appendices the questions ran to two full ring folders.  It was estimated that answering the questions would take several working days and would result in a document longer than the original report on which the questions were raised.  They were, in essence, cross-examination. The judge noted that ‘the mandatory requirement for proportionality was intended to address the practice that had arisen in some quarters of serving lengthy, complex sets of questions that were, in reality, a form of cross-examination.’  He also observed that the issues would be more proportionately dealt with in the joint discussion and joint statement.

It was held that the questions need not be answered because (i) they were wholly disproportionate, (ii) they were overwhelmingly not for the purposes of clarification and (iii) they amounted to cross-examination.   While there were omissions in the experts’ reports, these would, in this case, be best addressed by supplementary reports and/or by the process of joint meetings and joint statements. Such reports and joint statements would be likely to render whole swathes of the questions redundant.

The judge referred to the note to CPR35.6 in the White Book (generally regarded as guidance carrying significant weight – other guidance to the CPR is available) which stated that if an expert received a set of questions which it was considered went beyond the spirit of the rule, the right approach was to –

‘answer the clearly relevant questions and only to decline to answer the remainder if (i) to do so would be clearly prejudicial to the instructing party’s position, or, (ii) the time and cost of replying to the questions was disproportionate’.

The judge expressed sympathy with experts faced with such questions who would themselves have to make a judgment about the appropriateness or proportionality of each question, or set of questions, before choosing whether to answer and then formulate reasons why they chose not to answer, in itself a time-consuming operation.

Learning point:

Part 35 questions must be for clarification and must be proportionate.  They are not for the purpose of cross-examining the expert.  Failing to cover all relevant matters in a report is likely to provoke Part 35 questions, if the failure is not picked up (as it should be) by the instructing solicitors.  Both the terms ‘clarification’ and ‘proportionate’ are open to interpretation.  Extensive questions on the scale of those in the current case which arise from omissions from the expert’s report are generally best dealt with by way of a supplementary report or at the joint discussion and in the joint statement – aided by an agenda – rather than in a mass of questions supported by annexed (and cross-referred) documentation.

Experts letters seeking guidance from the court:

Interestingly the experts concerned in this case about the lengthy questions and the covert recordings wrote to the court seeking directions, pursuant to CPR35.14.  Few have experience of this procedure including Master Davison, and he recorded that even his senior colleague (Master Yoxall) had received such letters from experts on 2 occasions in 18 years.  However experts should remember that in difficult or unusual circumstances, and where matters are not satisfactorily resolved through instructing solicitors, they can write direct to the court for directions (see para 28 of the Guidance for the Instruction of Experts in Civil Claims as to how that should be done).

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The value of contemporaneous documentation

geyre

Records and notes made at the time of clinical practice – notes of an examination, operation records etc or letters or emails sent immediately afterwards – will carry substantial weight in court or other tribunals or hearings if the events to which they relate come under scrutiny at a later date, for example in a claim for damages or for professional misconduct.

In Clinical Practice and the Law – a legal primer for clinicians Section 2.4 I wrote:

In understanding the lawyer’s mind it is important to keep in mind the distinction between an oral (spoken) account of something which has happened and a contemporaneous (or near contemporaneous) written record.  With the best of intention, memory is fickle, often selective, weighted by cognitive bias and often lacking in detail, but it is also subject to innocent re-interpretation in the light of subsequent knowledge or facts.  And of course it may be adapted, intentionally or unintentionally, in order to excuse past actions or inaction.  In contrast, a written record, although it may be falsified, if genuinely made contemporaneously to the events to which it relates, reduces the chances of all of these failings.

This means that a careful, full and explanatory record made at the time of the events to which it relates (or made very shortly afterwards) is likely to carry greater weight when seeking to ascertain what happened and why, than an oral account given subsequently when the events are being put under a critical microscope in court or some other hearing or process.

In a recent case Simetra Global Assets Ltd & Richcroft Investments Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, and in a non-clinical setting, the Court of Appeal made the same point, in criticising the trial judge for failing to explain why he did not accept the evidence provided by contemporaneous records:

A party’s internal documents, including email and instant messaging, tended to show a witness’s true thoughts and were generally regarded as more reliable than their oral evidence or demeanour in court.  Therefore, where contemporary documents which appeared on their face to provide cogent evidence contrary to the conclusion the judge proposed to reach, the judge should explain why they were not to be taken at face value or were outweighed by other compelling considerations.

It is difficult to over-emphasise the importance of ensuring that the clinician makes clear and comprehensible notes and records at the time of, or very shortly after, any involvement with a patient.  Not only will these be useful for the clinician if providing further care to the patient at a later date, or other clinicians taking over from the original record maker, but they should provide a complete explanation as to what took place and why, and, if that was competent and appropriate, a complete answer to later criticism, however that might arise.

More guidance as to what the records and notes should contain, and how to make them concisely and within the limited time available, is covered in Section 8 of the book referred to above.  An explanation of the many processes in which the clinician may be involved should there be criticism of past conduct is covered in Section 15.

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