Experts’ discussions

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Lucy Clements Smith

Email: lucy.clementssmith{at}blm-law.com

Reports reaching the Clinical Disputes Forum (see http://www.clinicaldisputesforum.org.uk)have suggested that the practice of experts’ discussions (‘experts’meetings’) in the context of Clinical Disputes has recentlyencountered problems. A meeting was convened on 21 November2007 at the Law Society, at which some of these problems werediscussed. This article summarizes that debate, focusing onthe ordering of discussions, agenda, timetables and the presenceof lawyers – and some possible solutions are considered.

The narrative accompanying Part 35 of the Civil Procedure Rules(CPR) begins with a reference to the Access to Justice Reports’conclusion that expert evidence ‘has long been identifiedas a major source of problems in the civil justice system’.

The package of recommendations intended to resolve these problemsincluded bringing the use of expert evidence within the controlof the courts through the use of judges’ case management powers.These are now comprised in CPR 35. One of the most frequentlyused powers, and perhaps the most controversial, is the directionof experts’ discussions. CPR 35.12 provides that the court ‘may’,at any stage, direct a discussion between experts for the purposeof requiring the experts to (a) identify and discuss the expertissues in the proceedings; and (b) where possible, reach agreedopinion on those issues.

Both experts and lawyers have experienced problems with theimplementation of this laudable aim. They complain that, toooften, experts’ discussions are ordered as a matter of course,irrespective of merit, and ordered at a time when the issuesbetween the parties have not been clarified. The subjects fordiscussion themselves are also frequently controversial, witharguments about what should be on the agenda not only betweenthe parties’ lawyers, but sometimes even between the lawyersand their own experts.

In spite of Case Management, court timetables are frequently subject to delay which itself leads to another complaint. The experts find themselves struggling to achieve the discussion within an impossible time frame because the timetable has been allowed to slip repeatedly – and the discussion is planned as the last event before trial. Since the trial date is regarded as sacred, the time remaining for the discussion is frequently unrealistic. In an attempt to address this issue, the London Clinical Negligence Masters Ungley and Yoxall drafted, for the guidance of procedural judges in clinical negligence litigation, the ‘Model Directions’.¹ These were broadly based on the ‘Guidelines for Experts Discussions in the Context of Clinical Disputes’, published by the Clinical Disputes Forum in 2000.² They proposed (version 3) that ‘a draftAgenda … shall be prepared jointly by the Claimant’s solicitorsand experts and sent to the Defendant’s solicitors at least35 days before the agreed date for the experts’ discussions’and ‘The Defendants shall within 14 days of receipt agreethe Agenda’ and ‘Seven days thereafter all solicitorsshall use their best endeavours to agree the Agenda; in defaultboth versions shall be considered at the discussions. Agendas… shall be provided to the experts not less than 7 days beforethe date of the discussions.’ There was general agreementthat the default position (two agenda) was all too common andthat the time limits were seldom observed. It is not uncommonfor experts to be handed two agenda with in excess of 70 questionson the night before the proposed discussion.

The question of whether lawyers should be present at the discussionis also controversial. According to a recent AvMA survey, only33% of experts find the presence of lawyers at discussions ‘helpful’.Many find that they are more at ease to reach agreement withoutthe potentially inhibiting presence of the lawyers.

It has been suggested elsewhere that little thought is expended on the question of whether to order a discussion and the obligatory discussion has become more a ‘judicial toy’ than a procedural device.³ The word ‘may’ in CPR 35.12is, according to some experts and lawyers, routinely interpretedas meaning ‘must’ by procedural judges in clinicalnegligence cases. Their experience is that the experts’ discussionsare ordered in every case, usually at the first case managementhearing and often before anyone knows what the issues are. (Althoughthe requirement is qualified by the words ‘Unless otherwiseagreed after consulting with the experts’, in the latestversion it is further emphasized by the insertion remindingpractitioners that neither discussions nor agenda are mandatory.)It is frequently argued that more care needs to be taken indeciding when to order the experts to meet, not least becauseof the time and cost involved in setting up the discussions.If the order were to be considered after the exchange of expertevidence the decision would be better informed.

Indiscriminate orders for experts’ discussions raise the issueof proportionality. They are expensive to implement, and evenmore so if the case is complicated by multiple sets of experts.The discussions are themselves very expensive, particularlyif, as in the more complex cases, the experts actually haveto meet face-to-face. In every case, agenda need to be producedand agreed, experts have to prepare for the discussions andlawyers have to assist in that process.

The way the CPR is being implemented does not distinguish betweenstraightforward, low value cases and more complicated casesand the experience of some practitioners is that an order foran experts’ discussion is made regardless of the size and complexityof the claim.

The agenda for the experts’ discussion frequently proves tobe a most controversial document. The intention of the experts’discussion is to narrow the issues and, to do that, the issuesneed first to be identified and then such questions asked aswill assist the experts to agree or at least to narrow them.

While experts must have an input, there was general consensusthat responsibility lies with the lawyers. Solicitors oughtto have a grasp of the outstanding issues between the parties,but it is surprising how often the agenda seeks to address questionson which there is no disagreement or raises matters that arenot relevant to the dispute. Experts will sometimes focus onissues that may be relevant clinically, but will not necessarilybe relevant in a legal context. All too often the solicitorshand over last-minute responsibility to counsel who are, bytheir nature adversarial, esoteric and not necessarily inclinedto pose such questions as will reveal the ‘truth’.One suggestion of good practice was to arrange a conferenceafter the exchange of expert evidence at which a draft agendacould be thrashed out.

Another issue of concern is that, despite the best efforts ofthe new age practitioner and the overriding objective of theCPR, there is a residual contentiousness between lawyers. Somefind it counter-intuitive to reach agreement with their oppositenumber, even if doing so will serve to settle a case favourably.The behaviour of lawyers in these circumstances was likenedto that of the school playground; it is difficult to see a remedyfor such conduct and the procedural judges seem powerless tointerfere.

With all this in mind, it is often the case that the partiescannot and do not agree on the agenda. Whoever drafts the agenda,it is vital, if there is to be a successful conclusion to theexperts’ discussion, that it correctly identifies the issuesin dispute for the purposes of the litigation and poses suchquestions as will assist the experts to agree as many of thoseissues as possible. The seemingly innocuous provisions of CPR35.12.2 mean that if the parties cannot, as is too often thecase, agree what issues the experts are to discuss then theprocedural judge will agree what those issues are for them.

It is, therefore, open to the parties to apply to the courtfor an order under CPR 35.12.2. However, the extent to whichprocedural judges can be expected to decide what should be includedin an agenda, if the lawyers and the experts cannot is alsocontroversial. Master Ungley has declared that ‘for aprocedural judge to rule sensibly and relatively on the contentsof an agenda for a case where each report perhaps runs to 15pages, when you have to read both reports, understand the differencebetween them and then consider the appropriateness of the agendas,would be impossible’. These applications also have aneffect on the overall timetable. Experts complain that theyare often taken by surprise just before their discussion bythe late arrival of an agenda. The timetable has often slippedto the extent that there is insufficient time for an agendato be agreed and insufficient time for preparation for the discussion.The trial date is set in stone, being the only date that issacrosanct – but only 1% of clinical negligence casesever get to trial.

Some lawyers, particularly those acting for Claimants, expressconcern about the transparency of the litigation process inthe context of this question. Experts’ discussions in clinicalnegligence cases are extremely powerful because they can be,and often are, determinative. The lawyers who say they shouldbe present argue that if the experts’ discussion is determinativein a meeting at which they have not been present, their clientsmay not understand what has gone on.

In his report on the civil justice system, ‘Access toJustice’, Lord Woolf said, at chapter 15 paragraph 2,that suspicion between the parties was more intense (in clinicalnegligence) than in other types of litigation and at paragraph68 states that ‘many claimants felt strongly that thesystem is weighted against them and in particular professionalsolidarity among doctors is a barrier to justice for ordinarypeople. Whether or not this is justified, I have no doubt thatit is encouraged by the lack of openness, which still prevailsin this area of litigation.’

Lawyers who have been prevented from attending experts’ meetingpoint out that if the experts’ discussion in a particular meetinggoes against their client and they then have to advise thatthe case be turned down, that is a more difficult piece of informationto communicate to their clients than would be the case if thelawyers were there.

Those on the other side of the argument concede that sometimesClaimants do feel excluded from the process and ‘carvedup’ by the medical profession, but are adamant that thecurrent system is a vast improvement on the old where expertswould sometimes meet for the first time in court. They alsopoint out that bad news is bad news, however and whenever itis delivered.

In any event, it remains rare for lawyers to attend meetingsand judicial practice is that, generally, they are not allowed.

A further problem, and one which is not really covered by proceduralguidance at the moment, is what happens after the meeting if,as is often the case, the joint statement is not agreed thereand then. Some experts complain that very often the statementends up in the hands of the instructing lawyers and, ratherthan being an accurate reflection of the experts’ discussion,it becomes a reflection of an ancillary discussion between thelawyers and the experts.

It has been suggested that the directions given to experts includea restriction on the circulation of the joint statement untilafter it has been agreed and signed up to by the experts whoshould not allow the lawyers to see its contents until then.

Some of the proposed solutions were:

1. More rigour is required in the context of the Case Management Conferences. Judges need to question (a) whether to make an order and (b) when to make such an order; and specifically whether there is a more appropriate time to do it. An order for discussion made after there has been an exchange of experts’ reports would be much more useful so that the experts and lawyers are able to see what the issues really are;
2. Particularly in the more valuable and complicated cases, more judicial case management time needs to be applied so that it is possible properly to define the issues and have true case management within the spirit of CPR 35.12.2;
3. Enough time needs to be allowed so that agenda can be agreed and focus should be on keeping the questions as simple and relevant as possible. The questions themselves should be prepared with the objective of narrowing the issues and the exercise should be more than simply an adversarial point scoring exercise for the lawyers;
4. Experts should be guaranteed sight of the agreed agenda in good time for their reports to be drafted and, in essence, the Model Directions should be followed;
5. Each date within the set of directions should be considered sacred, not just the fabled date of a trial which very rarely takes place.

Lucy Clements Smith, Solicitor, Berrymans Lace Mawer, SalisburyHouse, London Wall, London EC2M 5QN, UK

• Suggested Model Directions for Clinical Negligence cases before Masters Ungley and Yoxall. See http://www.hmcourts-service.gov.uk/cms/files/Clinical_Neg_Mode-2007-v4_fina.doc (last checked 5 February 2008)
• Scotland A. Guidelines on Experts’ Discussions in the Context of Clinical Disputes. Clinical Risk 2000; 6: 149–52
• Clements RV. Questions and discussions. In: Blom-Cooper L, ed. Experts in the Civil Courts. Oxford: OUP, 2006: 103–12

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This Article Abstract Full Text (PDF) Alert me when this article is cited Alert me if a correction is posted Services Email this article to a friend Similar articles in this journal Alert me to new issues of the journal Download to citation manager Google Scholar Articles by Smith, L. C. Social Bookmarking What’s this?