Timely Instruction of Experts

16-04-2012 15:31

The Court of Appeal recently heard an appeal concerning permission to change an expert witness shortly before trial began (Guntrip v Cheney Coaches Limited [2012] EWCA Civ 392).  The matter concerned a coach driver who brought proceedings against his employer for negligence and breach of statutory duty.

Mr Guntrip, who was in his early 60s was absent from work between December 2005 and June 2006 due to a knee replacement operation.  In June 2006 on his return to work he was given a coach with a manual transmission which he subsequently blamed for causing pain, swelling and discomfort to the replacement knee.  He then gave up work.  In May 2009 he issued proceedings against his former employer for negligence and breach of statutory duty for giving him a coach that had a manual clutch.

In January 2010 he was given permission to rely on an expert report of an orthopaedic surgeon, Mr Jackson.  The Defendant filed an expert report and the two experts were ordered to prepare a statement setting out the areas upon which they agreed and disagreed, as is usual under the Court rules.  

Mr Jackson said that Mr Guntrip’s return to work might have accelerated the symptoms but he was not more positive towards the Claimant’s case than that.  The Defendant’s expert stated that he did not think that the symptoms suffered by the Claimant could be attributable to the Claimant driving a coach with a manual clutch.  Their joint statement reflected this.  Therefore, if Mr Guntrip had relied on his expert, he would probably not have succeeded.  So he instructed a further expert and sought permission from the Court to rely on the second expert at trial.  The Judge held that he could not rely on the second expert report for a number of reasons, including the fact that significant extra cost and delay would be caused to a claim that was already 5 years old; it would have a detrimental effect on the chance of a fair trial because there were disputed questions of fact and memories would fade over time and there had already been a lot of delay case and the trial had already been moved several times.

Mr Guntrip appealed and his appeal was successful.  The Defendant then appealed that decision.

The Court of Appeal held that the first instance Judge was correct and that the Claimant should not be allowed to rely on the second expert’s report.  The Court of Appeal made a number of important points.  The Expert’s duty is to the Court and not the party instructing him so if the expert does not agree with the party’s case, he/she has a duty to say so as soon as possible, which is what happened here.  The party seeking to change experts must have good reasons for doing so – simply that the expert has changed his view is not enough.  The Court of Appeal also said this kind of decision is decision within the discretion of the first instance Judge and that there had been no flaw in the first instance Judge’s decision here to entitle the first appeal Judge to change what had been decided.

Significantly, the Court of Appeal stated that the Court should be less willing to allow a very late amendment and a “heavy onus” lies on the party seeking to make that amendment as to why it wants to make it.

If you require any further information on this topic, please contact Emma Hayward.

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