Instructing Experts 161

CHAPTER 11

Instructing Experts

11.1 Introduction 161

11.2 Case management and the use of experts 163
11.3 Areas of expertise 165
11.4 How to find an expert 167
11.5 Key qualities to look for in an expert 168
11.6 Preliminary enquiries of the expert 169
11.7 Letter of instruction 169
11.8 The expert’s report 171
11.9 Conference with expert and counsel where expert instructed by one party 171
11.10 Conclusion 172
11.11 Further reading 172
11.12 Key points 173

LEARNING OUTCOMES
After reading this chapter you will be able to:
• understand the role of experts in personal injury and clinical negligence cases
• appreciate the different types of expert who might be instructed
• explain the expert’s overriding duty to the court and the court’s case management
powers in relation to experts
• write a letter of instruction to an expert.

11.1 INTRODUCTION
In almost every personal injury or clinical negligence case, the claimant’s solicitor will
instruct at least one medical expert. Commonly, an expert will prepare a report on the
claimant’s injuries for quantum purposes, which is often referred to as a report on condition
and prognosis. In clinical negligence and disease and illness claims, medical evidence will not
only be required in order to assist the court in assessing damages, but will also be necessary in
order to prove liability and/or causation. Indeed, the claimant’s solicitor may be unable to
understand precisely what happened to the claimant, and therefore advise him in relation to
the claim, until such evidence has been obtained. In some personal injury cases, other types
of experts, such as accident reconstruction experts or engineers, may be required for liability
purposes.
The purpose of this chapter is to examine the role of experts and the matters that must be
considered when instructing an expert in a personal injury or clinical negligence case.
With regard to the procedural law, the practitioner must have a sound grasp of CPR Part 35
and the accompanying Practice Direction, which govern the use of experts in civil trials. In
addition, the Protocol for the Instruction of Experts to give Evidence in Civil Claims (the
‘Protocol’) provides guidance on the interpretation of and compliance with Part 35 and PD 35
in the interests of good practice.
162 Personal Injury and Clinical Negligence Litigation

11.1.1 Who is an expert?

An expert is an individual with a high level of skill, knowledge and experience in a particular
area which is outside the knowledge of the court. The expert will be permitted to give his
opinion when the court would otherwise be unable properly to understand the factual
evidence which has been placed before it and requires the expert’s assistance in order to
determine a matter of dispute between the parties. This evidence should be presented in a
clear and concise way so that the court can use the information to reach its own conclusions.
The court is not obliged to accept the evidence of an expert. In Armstrong and Another v First York
Ltd [2005] EWCA Civ 277, the Court of Appeal held that the trial judge had been entitled to
reject the evidence of a forensic motor vehicle engineer who had been jointly instructed by the
parties. The two claimants had allegedly sustained neck and spinal injuries when their car had
been hit by a bus owned by the defendant. The expert’s evidence was that there had been
insufficient force generated by the impact to cause the injuries claimed. Although the trial
judge found that the expert’s evidence had been flawless, this could not be reconciled with his
belief that the claimants were credible and honest witnesses. Consequently, he was entitled to
find that there must have been a flaw in the expert’s evidence, even though he had not been
able to identify that flaw. In the Court of Appeal case of Huntley v Simmons [2010] EWCA Civ 54
Waller LJ stated that:
the evidence of experts is important evidence but it is nevertheless only evidence which the judge must
assess with all other evidence. Ultimately issues of fact and assessment are for the judge. Of course if
there is no evidence to contradict the evidence of experts it will need very good reason for the judge not
to accept it and he must not take on the role of expert so as to, in effect, give evidence himself. So far as
Joint Statements are concerned parties can agree the evidence but (as happened in this case) it can be
agreed that the joint statements can be put in evidence without the need to call the two experts simply
because they do not disagree; but either party is entitled to make clear that the opinion expressed in
the joint statement is simply evidence that must be assessed as part of all the evidence.

In Stewart v Glaze [2009] EWHC 704 (QB), the judge said that although the expert could be of
considerable assistance, it was the primary factual evidence which was of the greatest
importance, and that expert evidence should not be elevated into a fixed framework or
formula against which the defendant’s actions were to be judged rigidly with mathematical
precision.

11.1.2 The expert’s overriding duty to the court

Rule 35.5 of the CPR states that it is the duty of experts to help the court on matters within
their expertise, and that this duty overrides any obligation to the person from whom experts
have received instructions or by whom they are paid.
Paragraph 2 of PD 35 gives the following guidance as to the nature of that duty:
2.1 Expert evidence should be the independent product of the expert uninfluenced by the pressures
of litigation.
2.2 Experts should assist the court by providing objective, unbiased opinion on matters within their
expertise, and should not assume the role of an advocate.
2.3 Experts should consider all material facts, including those which might detract from their
opinions.
2.4 Experts should make it clear:
(a) when a question or issue falls outside their expertise; and
(b) when they are not able to reach a definite opinion, for example because they have
insufficient information.
2.5 If, after producing a report, an expert changes his view on any material matter, such change of
view should be communicated to all the parties without delay, and when appropriate to the
court.
 Instructing Experts 163

Paragraph 4.2 of the Protocol provides that experts are under an obligation to assist the court
in dealing with cases in accordance with the overriding objective set out in r 1 of the CPR.
However, it goes on to state that the overriding objective does not impose on experts any duty
to act as mediators between the parties or require them to trespass on the role of the court in
deciding facts.
Paragraph 4.3 of the Protocol offers a test for independence as being, ‘Would the expert
express the same opinion if given the same instructions by an opposing party?’, and goes on
to say that experts should not take it upon themselves to promote the point of view of the
party instructing them or engage in the role of advocates.
In accordance with para 3.1 of PD 35, the expert’s report should be addressed to the court and
not to the party from whom the expert has received instructions.

11.2 CASE MANAGEMENT AND THE USE OF EXPERTS

11.2.1 General principles
Rule 35.1 states that expert evidence should be ‘restricted to that which is reasonably required
to resolve the proceedings’, and solicitors should be mindful that the court’s permission is
required before a party may call an expert or put in evidence an expert’s report (CPR,
r 35.4(1)). In determining whether a party should be entitled to use an expert, the court will
be governed by the overriding objective found in r 1 of the CPR, in particular ensuring that the
parties are on an equal footing, saving expense and dealing with the case in ways which are
proportionate.
The following should be noted:
(a) Generally, permission will be sought in the directions questionnaire. When permission
is sought, parties must provide an estimate of the costs of the proposed expert evidence
and identify the field in which expert evidence is required, the issues the expert will
address and, where practicable, the name of the proposed expert (CPR, r 35.4(2)).
Where permission is granted, it shall be in relation only to the expert named or the field
identified, and the issues which may be addressed may also be specified. Where a claim
has been allocated to the small claims track or the fast track, permission will normally
be given for evidence from only one expert on a particular issue (CPR, r 35.4(3A)). If
necessary, further directions relating to the use of experts may be given on listing or
upon the application of a party.
(b) Usually, the claimant’s solicitor will be obliged to instruct an expert before permission is
given by the court for the use of that expert. In clinical negligence and disease and illness
claims, it will be necessary for the claimant’s solicitor to instruct an expert in order to
advise in relation to liability and/or causation before the letter of claim is sent and, in
almost all cases, a medical report will be attached to the particulars of claim. This is well
understood by the court, and there is unlikely to be a problem in obtaining permission
for the use of such an expert. Solicitors instructed by both claimants and defendants
should give careful consideration as to whether it is necessary to instruct any other
expert prior to permission being given. The court may decide that expert evidence is not
required at all, or may determine that a single joint expert should be used. The client
should be informed of the risks of instructing an expert before permission has been
given, ie that he may not be permitted to use the expert’s evidence and costs relating to
that expert will not be recoverable even where the client is successful in the claim.
(c) The PAP for Personal Injury Claims encourages the joint selection of experts, mostly
medical experts for quantum purposes but also experts dealing with liability, where
appropriate (PAP, para 2.14). In accordance with para 3.15, before a party instructs an
expert, he must provide his opponent with a list of one or more experts whom he
considers to be suitable for the case. In many cases, the claimant’s solicitor will do this
in the letter of claim and three names are usually supplied. The defendant then has 14
164 Personal Injury and Clinical Negligence Litigation

days within which to communicate any objections he has to any expert appearing on the
list, and the claimant’s solicitor is thereby able to select a mutually acceptable expert.
The expert is instructed only by the claimant’s solicitor (and in this respect, joint
selection differs from joint instruction as envisaged by CPR, r 35.7 – see (d) below), but
there is a presumption in fast track cases that the defendant will not be permitted to
instruct his own expert in relation to that issue. Where the defendant objects to all the
experts suggested by the claimant, he may instruct his own expert. However, if the
matter proceeds, the court will consider whether the defendant acted reasonably in this
regard.
In Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, the claimant, Mr Edwards-
Tubb, brought a claim arising out of a fall at work in October 2005. His employer, JD
Wetherspoon, accepted liability. The issue related to damages and causation.
The claimant in the pre-action letter of claim gave notice to the defendant of three
medical experts he wished to instruct. The defendant raised no objection and the
claimant obtained a report from one of those experts, Mr Jackson. It was accepted that
this was not a joint instruction and the report would remain privileged unless and until
disclosed.
Proceedings were issued close to limitation. Shortly before service, the claimant
disclosed a medical report from a Mr Khan, who was not originally nominated. The
defendant sought an order that disclosure of the original report by Mr Jackson should be
made a condition of the permission which the claimant needed to rely on Mr Khan.
The main issue before the Court of Appeal was whether the Court’s power to impose a
condition on the permission granted to rely on a particular expert could be utilised to
require the disclosure of another expert report. The Court concluded that, before the
claimant could rely on the second expert report, he should disclose the findings of the
first expert report.
The Court was mindful of the duty under CPR, r 35.4 to discourage ‘expert shopping’. In
the circumstances of the case, expert A had been instructed for the purposes of the
litigation. A factor which held significant weight for the Court of Appeal was that the
parties had embarked upon the pre-action protocol procedure of co-operation in the
selection of experts. This is not something which is generally undertaken under the pre-
action protocol for the resolution of clinical disputes, and it remains to be seen whether
the Court would impose such a condition upon a request for leave to rely upon a
particular expert where there has been no pre-action discussion in relation to the
instruction of experts.
(d) Where the parties wish to submit expert evidence on a particular issue, the court has the
power, under CPR, r 35.7, to direct that a single joint expert be used. See 11.2.2 below.
(e) A party will be entitled to use the report or call the expert at trial only if the report has
been disclosed to the other parties to the action in accordance with CPR, r 35.13.
(f ) At trial, expert evidence is to be given by means of a written report unless the court gives
permission for the expert to give oral evidence. In small claims and fast track cases,
permission will be given for an expert to attend a hearing only if it is necessary in the
interests of justice (CPR, r 35.5).
(g) In accordance with para 11.1 of PD 35, at any stage in the proceedings the court may
direct that some or all of the experts from like disciplines shall give their evidence
concurrently. This is known as hot-tubbing and may include, for example, the judge
inviting the experts, in turn, to give their views, or the judge questioning one witness
and then asking the other witness to comment on the answers given.

11.2.2 The single joint expert

A ‘single joint expert’ is defined in CPR, r 35.2(2) as an expert instructed to prepare a report
for the court on behalf of two or more parties (including the claimant) to the proceedings.
 Instructing Experts 165

Under CPR, r 35.7, where two or more parties wish to submit expert evidence on a particular
issue, the court may direct that the evidence on that issue be given by a single joint expert. In
fast track cases, the court is likely to direct that a single joint expert be used unless there is
good reason not to do so (PD 28, para 3.9(4)). Similar wording is used in PD 29, para 4.10(4)
in relation to multi-track cases, but the insertion of the words ‘on any appropriate issue’
reflects the reality that there will be more issues in a multi-track case which will not be
suitable for a single joint expert to determine. Single joint experts are more likely to be used to
determine issues in relation to quantum than issues relating to liability or causation. In
clinical negligence and illness and disease cases, it is recognised that single joint experts are
less likely to be acceptable to the parties, and the pre-action protocols state that the courts are
less prescriptive as to the use of experts in these types of claim.
Where the parties are unable to agree who the single joint expert should be, the court may
select an expert from a list provided by the parties, or direct how the expert should be
selected (CPR, 35.7(2)). Paragraph 17.6 of the Protocol requires parties to try to agree
instructions to single joint experts, but allows for each party to give instructions in default of
such an agreement. Where each party gives instructions to the expert, he should supply a
copy of those instructions to the other side (CPR, r 35.8). Unless the court otherwise directs,
the instructing parties are jointly and severably liable for the expert’s fees and expenses.

11.2.3 Directions relating to the use of experts

In fast track cases, standard directions given on allocation in relation to expert evidence will
order the use of the written report of a single joint expert or, where permission is given for the
parties to use their own experts, order the disclosure of experts’ reports by way of
simultaneous exchange (usually within 14 weeks of allocation). Where the reports are not
agreed, a discussion between the experts in accordance with CPR, r 35.12(1) and the
preparation of a report under r 35.12(3) (PD 28, para 3.9) are required. In addition, the court
may direct that a party put written questions to an expert instructed by another party or to a
single joint expert about his report (CPR, r 35.6). Bearing in mind the tight timetable between
allocation and trial (30 weeks), little time will be available for these steps.
Directions in multi-track cases are tailored to the requirements of each individual case and are
likely to be more complex. Where the parties are permitted to use their own experts on any
issue, typical directions will include:
(a) exchange of reports, either simultaneously or sequentially;
(b) the service of written questions to the experts and the service of answers;
(c) the agreement of expert reports where possible;
(d) where agreement is not possible, a without prejudice meetings between the experts in
order to try to resolve the matters upon which they are unable to agree, and the
subsequent filing of a report setting out the points upon which they agree and disagree;
(e) permission for the experts to give oral evidence at trial or that the reports shall stand as
evidence.
The time allowed for each step outlined above will be dependent upon the complexities of the
individual case and, in some cases, the availability of the experts themselves.

11.3 AREAS OF EXPERTISE

The number and variety of experts available to prepare reports are often surprising to those
unfamiliar with this area. The following are examples of experts who provide reports.

11.3.1 Medical experts

Medical experts are usually required in order to assist the court in relation to the assessment
of damages. In other words, they will report on the condition and prognosis of the claimant
166 Personal Injury and Clinical Negligence Litigation

and the cost of living with the particular injury suffered by the claimant. In a simple, low-value
case, a report from a general practitioner may be sufficient, but in a complex, high-value case,
experts in several areas of medical expertise may be required. The types of medical experts
who may assist in this regard are numerous, but may include doctors of various specialities,
occupational therapists, behavioural therapists, speech therapists and physiotherapists.
In clinical negligence cases, it will be necessary to instruct an expert to advise in relation to
liability and possibly causation. A consultant should be instructed with expertise in the same
speciality as the doctor who is alleged to have been negligent.
A list of the most common areas of medical expertise can be found at 2.3.

11.3.2 Other experts

In road traffic accidents, the following types of experts may be helpful in order to establish
liability:
(a) accident investigators to reconstruct the events leading up to the road traffic accident;
(b) mechanical engineers to examine the vehicles involved in the accident, to identify
damage or to investigate if any mechanical defects were present in the vehicle.
In employers’ liability cases, the following types of experts may be helpful to establish
liability:
(a) general consulting engineers to provide reports on machinery, systems of work,
slipping accidents;
(b) mining engineers;
(c) ergonomics experts;
(d) bio-engineers;
(e) pharmacologists.
When dealing with quantum, in addition to doctors of the appropriate speciality, the
following experts may be useful in relation to condition and prognosis and the costs of living
with a particular injury:
(a) occupational therapists;
(b) behavioural therapists;
(c) speech therapists;
(d) physiotherapists;
(e) employment consultants.
When dealing with quantum, the following experts may be useful in relation to financial loss
and the investment of damages:
(a) employment consultants;
(b) accountants;
(c) actuaries.

11.3.3 Specific experts

The following types of experts warrant further attention.

11.3.3.1 Accident reconstruction experts

In more serious RTA claims, an accident reconstruction expert may be required. If the
claimant’s solicitor is instructed immediately following the accident, the accident
reconstruction expert should be contacted without delay and requested to attend the scene of
the accident in order to examine any skid marks, etc. It may also be appropriate for the expert
to examine the vehicles involved in the accident, and the claimant’s solicitor should take
 Instructing Experts 167

appropriate steps to ensure that the vehicles are not disposed of or repaired prior to the expert
carrying out his examination. The evidence of tachographs will be particularly useful. The
reconstruction expert will want to see the PAR and any associated reports prepared by the
police, such as a police reconstruction report, and proofs of evidence from anyone involved in
the accident or anyone who witnessed the accident. He will then be in a position to provide
an opinion as to the cause of the accident.

11.3.3.2 Consulting engineers

Many personal injury claims involve machinery or systems of work (especially EL claims), and
in such cases it may be thought appropriate for a consulting engineer to be instructed to
prepare a report on the machinery involved or the system of work undertaken.

EXAMPLE
A client is injured while driving a fork-lift truck and alleges that the steering wheel failed to
respond while he was driving it. It is part of the client’s case that the employer failed
adequately to maintain the fork-lift truck. If the truck has not been modified prior to the
solicitor being instructed, a consulting engineer may be instructed to examine the vehicle
and its maintenance records. The solicitor will therefore obtain an expert’s view as to
whether the appropriate system of maintenance was adopted and attempt to identify the
cause of the accident.

The expert will need to inspect the machinery, and the permission of the proposed defendants
(who are normally the claimant’s employers in such cases) is required. If this is not granted
then it will be necessary to apply to court for an order for preservation and inspection.
Where both parties are given permission to instruct their own experts, it is common for them
to attend the scene of the accident at the same time in order to conduct a joint inspection.
This has the advantage of saving costs and time, as the engineers can agree on measurements
and technical details.

11.3.3.3 Clinical case managers

In certain high-value/severe injury cases, a clinical case manager may be appointed to
consider the claimant’s appropriate care regime. In Wright (by her litigation friend Karen Fay) v
Kevin Sullivan [2005] EWCA Civ 656, it was held that the clinical case manager would owe a
duty to the claimant to work in his best interests and should not be jointly appointed. The
evidence given by such a witness is evidence of fact and not expert opinion.

11.4 HOW TO FIND AN EXPERT

It is vital that the solicitor responsible instructs the correct person to provide expert evidence
in the case. Many firms will have their own in-house directory of experts, which should be
referred to in the first instance. Frequently, other fee-earners will have inserted comments
about the expert alongside the entry in the directory. Information such as how well the expert
gave evidence in court, can be extremely useful. If an in-house directory of experts is not
available or is inappropriate then other sources can be used.
The following sources may also be of use:
(a) The Association of Personal Injury Lawyers. This organisation provides information to
members on appropriate experts.
(b) Action against Medical Accidents (AvMA)
(c) The Academy of Expert Witnesses.
(d) The Society of Expert Witnesses.
(e) Expert Witness Institute.
168 Personal Injury and Clinical Negligence Litigation

(f ) The New Law Journal and Solicitor’s Journal regularly issue expert witness supplements
which carry advertisements from experts who are prepared to provide reports for the
purposes of litigation.
(g) Many professional institutes also prepare a directory of expert witnesses.
(h) The Medico-Legal Society publishes reports which may reveal the name of a suitable
expert.

11.4.1 The use of medical agencies

Increasingly, solicitors rely on medical agencies to source suitable experts to write reports.
The rise in popularity of medical agencies has come about due to the growth of large personal
injury practices which accept claims from clients anywhere in England and Wales. It is
necessary to find a medical expert (or better still a choice of experts in the same specialism)
who is sufficiently local to the home of the client. Without the assistance of a national agency
to co-ordinate this search, this would represent something of a headache for the claimant’s
solicitor.
Medical agencies are able to provide a choice of experts local to the client, and they will send
copies of the CVs of those experts direct to the solicitor, together with an indication of the
waiting time for preparation of the report. Subject to the arrangement they have with the
instructing solicitor, they may also attempt to agree the choice of expert with the defendant
insurer direct, obtain the client’s medical records, arrange the medical appointment for the
client and forward the subsequent report direct to the solicitor. The agency will charge a fee
for this service which, if reasonable, will be allowed as part of the disbursements incurred on
the claim at assessment of costs stage.
In the case of Woollard v Fowler [2006] EWHC 90051 (Costs), 12 April 2006, the court held that
it was entirely proper that a payment made by a solicitor to such an agency should be treated
as a disbursement under the fixed costs regime in section II of Part 45 of the CPR 1998, and
therefore as recoverable in full from the losing party.
The PAP for personal injury claims states that where a claimant wishes to use a medical
agency, the defendant’s prior consent should be sought and, if the defendant so requests, the
medical agency should provide in advance the names of the doctors whom they are
considering instructing (para 2.15).

11.5 KEY QUALITIES TO LOOK FOR IN AN EXPERT

A number of key qualities must be looked for when selecting an expert:
(a) Is the individual appropriately qualified to deal with the matter and does he have the
relevant practical experience in the area? If not, the court is unlikely to consider him to
be an expert.
(b) Can the expert be regarded as impartial? In Liverpool Roman Catholic Archdiocesan Trust v
Goldberg [2001] Lloyd’s Rep PN 518, the evidence of an expert was disregarded due to his
close relationship with the defendant.
(c) Is the expert usually instructed on behalf of defendants when you are instructed by a
claimant, or vice versa? Although all experts have an overriding duty to the court and
should give the same evidence in a particular case no matter who is instructing them, it
is unwise to instruct an expert who has an impressive record of appearing against the
type of client you are representing.
(d) Does the expert have sufficient time to deal with the case properly? A good expert will
refuse instructions when he has insufficient time, but this will not always happen.
Whether the case is a personal injury or clinical negligence claim, the expert will have to
spend considerable time on the matter, either examining the papers or the claimant, or
inspecting a vehicle, a piece of machinery or the scene of the accident.
 Instructing Experts 169

(e) Can the expert provide a clear and comprehensive report?

(f ) Does the expert have experience in litigation of this type? Does he prepare reports and
attend at trial regularly to give evidence? Only a small percentage of cases proceed to
trial, and thus an expert may claim to have been involved in, say, 200 cases but may have
given evidence in only a few of them (especially as, in the fast track, expert evidence is
normally given in written form). It cannot be assumed that the case will settle and,
however good the written report might be, convincing oral testimony (where allowed by
the court) and the ability to withstand tough cross-examination are essential. The
expert’s general reputation should be checked with his colleagues who practise in the
same area.

11.6 PRELIMINARY ENQUIRIES OF THE EXPERT

Once a party has decided to instruct an expert in relation to any issue in a case and an
appropriate expert has been identified, the solicitor should approach the expert with a
number of preliminary enquiries, in order to establish whether he is willing and able to act in
relation to the matter. Some health practitioners may be reluctant to provide reports for
claimants in clinical negligence cases, and their views on this must be obtained. Even if the
expert has been used by the solicitor before, it is good practice to send a preliminary letter to
establish whether the proposed expert has any personal or professional connection with
others who may be involved in the case, such as one of the parties, a health professional who is
alleged to have been negligent or experts instructed by another party. Even though experts
have an overriding duty to the court, it is preferable to avoid any possibility of bias or
allegations of bias.
The preliminary letter to the expert might usefully cover the following matters:
(a) request confirmation that the expert deals with the appropriate speciality and has the
necessary qualifications and experience;
(b) request confirmation that he is willing to accept instructions to provide a report and,
where time is an important consideration, details of when the report will be available;
(c) request confirmation that the expert is prepared to carry out any necessary post-initial
report work, such as attending conference with counsel and attending experts’
meetings;
(d) request confirmation that he would be willing to provide oral evidence to support his
written report, if required;
(e) inform the expert of the identity of the potential defendant and, in a clinical negligence
claim, the name of any health professional who is alleged to have been negligent;
(f ) obtain details of the expert’s charging rate and/or to explain that the client has the
benefit of public funding; and
(g) confirm on whose behalf the solicitor is acting (but without giving any view on liability).
(h) where the expert is a medical expert and relevant medical records have been obtained,
confirm that this is the case (however, they must not be forwarded to the expert at this
stage);
If the expert is prepared to act in response to an initial letter of enquiry then a full letter of
instruction should be sent.

11.7 LETTER OF INSTRUCTION

The nature of the letter of instruction to a medical expert will, of course, be determined by
what it is the expert is required to do.
170 Personal Injury and Clinical Negligence Litigation

11.7.1 Instructing medical experts in relation to quantum

Generally, in an RTA claim or an EL claim not involving illness or disease, the only medical
expert instructed will be required to examine the claimant in order to provide a condition and
prognosis report for quantum purposes. Medical experts will also be required for quantum
purposes in clinical negligence and disease and illness claims. The specimen letter of
instruction to a medical expert which is set out at Annex C to the PAP for personal injury
claims (see Appendix 2) is suitable for this purpose.
It may be necessary to provide the expert with copies of the claimant’s medical records where
they relate to the injuries sustained and/or the treatment received by the claimant as a result of
the defendant’s negligence, or where there is a pre-existing condition which may have an
impact on the assessment of damages.
The heading of the letter should contain: the client’s full name, address, date of birth, date of
the accident, his telephone number and, if considered appropriate, details of the hospital
where the client was treated. It is important that the letter of instruction makes it clear on
whose behalf the solicitor is acting and whether the notice of appointment should be sent
directly to the claimant or via his solicitor.
Where a defendant is given permission to instruct an expert to examine the claimant and
provide a report on condition and prognosis, specific questions included in the letter of
instruction may require the expert to comment, for example, on the reasonableness of the
special damages claim, ie did the client reasonably need assistance with gardening and, if so,
for how long?

11.7.2 Instructing medical experts in relation to liability and causation

In clinical negligence and disease and illness claims, it will be necessary to instruct a medical
expert of an appropriate speciality to advise in relation to liability and/or causation. These
experts may not need to examine the claimant and their expert opinion will be primarily based
on the claimant’s medical records, copies of which should be enclosed. The letter of
instruction may include the following matters:
(a) a chronology of the events/factual resumé to which the expert can refer. A concise
overview of the events should be available for the expert to consider;
(b) a brief explanation of the relevant standard of care, with reference to the Bolam test as
modified by Bolitho (see 5.3). In the case of Sharpe v Southend Health Authority [1997] 8
Med LR 299, the Court of Appeal stated that an expert in a clinical negligence case
should make it clear in his report whether the approach adopted by the defendant was in
accordance with a responsible body of medical practitioners, even if he himself would
have adopted a different approach. If it is not known that the expert is aware of this
point, then this must also be mentioned in the letter of instruction;
(c) a reminder that it will be necessary to establish a causational link between the identified
negligence and injury;
(d) an offer for the expert to meet the claimant if he so wishes. This may not be necessary
but the facility should be made available;
(e) the date by which the report is needed;
(f ) who is responsible for the fee;
(g) a request that the expert consider whether all relevant notes have been disclosed and, if
not, what further notes should be obtained;
(h) a request that the expert advise as to whether any other type of expert evidence is
required in addition to his own;
(i) a request that the expert make reference to medical publications to support his case.
The expert should be asked to refer to texts and authoritative works that were
available at the time of the incident (see Breeze v Ahmed [2005] EWCA Civ 223);
 Instructing Experts 171

(j) specific questions that the expert is required to answer;

(k) a reminder that the expert may be required to attend a conference with counsel at the
appropriate time;
(l) a reminder as to how the doctor should structure the report.
The medical notes must not be sent to the expert without first being checked by the solicitor
to ensure that they are complete and in order. Identical ring binders should be prepared, with
copies of paginated medical notes included, in date order, indexed and divided into relevant
sections. A ring binder of notes should be prepared for each expert, counsel and the solicitor.

11.8 THE EXPERT’S REPORT

Practice Direction 35, para 3.2 states that an expert’s report must:
(1) give details of the expert’s qualifications;
(2) give details of any literature or other material which the expert has relied on in making the
report;
(3) contain a statement setting out the substance of all facts and instructions given to the expert which
are material to the opinions expressed in the report or upon which those opinions are based;
(4) make clear which of the facts stated in the report are within the expert’s own knowledge;
(5) say who carried out any examination, measurement, test or experiment which the expert has
used for the report, give the qualifications of that person, and say whether or not the test or
experiment has been carried out under the expert’s supervision;
(6) where there is a range of opinion on the matters dealt with in the report –
(a) summarise the range of opinion, and
(b) give reasons for his own opinion;
(7) contain a summary of the conclusions reached;
(8) if the expert is not able to give his opinion without qualification, state the qualification; and
(9) contain a statement that the expert –
(a) understands his duty to the court, and has complied with that duty; and
(b) is aware of the requirements of Part 35, this practice direction and the Protocol for
Instruction of Experts to give Evidence in Civil Claims.

In relation to the requirement for a statement of the substance of the instructions given to the
expert, it should be noted that r 35.10(4) specifically states that the instructions are not
privileged. However, the court will not normally allow cross-examination of the expert on the
instructions, unless it believes the statement is inaccurate (see also Lucas v Barking, Havering
and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102, [2003] All ER (D) 379 (Jul)).
Once an expert’s report has been received, it should be read (and understood) by the solicitor
and sent to the client for his approval. It should then be disclosed to the other party in
accordance with the order for directions.
A specimen medical report can be found at Appendix 1(7).

11.9 CONFERENCE WITH EXPERT AND COUNSEL WHERE EXPERT

INSTRUCTED BY ONE PARTY
11.9.1 The initial conference prior to proceedings being issued
11.9.1.1 Personal injury
An initial conference prior to proceedings being issued is not normally necessary in personal
injury cases, but consideration should be given to this approach if the claimant is resistant to
the solicitor’s advice that the claim is likely to fail, or if the matter is unusually complicated.
172 Personal Injury and Clinical Negligence Litigation

11.9.1.2 Clinical negligence and illness and disease claims

In clinical negligence and illness and disease cases, because the issues involved are likely to be
complex, it may be appropriate to arrange a conference with the expert, counsel and the client
after the initial medical report on liability and/or causation has been provided. This will
provide an opportunity to examine all the issues in full, to test the expert’s evidence and
ensure that he is the appropriate person to be instructed, and to determine whether
proceedings should be issued. An initial conference at this stage is also appropriate when the
medical report is unfavourable and it appears that the claim should not proceed.
The conference also provides a valuable opportunity to satisfy the client that every possibility
has been investigated, that he is not being sidelined by the legal process and that there is no
medical conspiracy against him.
Consideration should be given to instructing counsel to produce a written advice following
the conference, to ensure that all matters have been dealt with. During the conference, a
detailed note should be taken of matters covered. This note should be sent to all the experts
who attended the conference to confirm that it accurately records the views they expressed.
If the case is going to proceed, the next stage is the drafting of the letter of claim which is to be
sent to the potential defendant.

11.9.2 Conference with counsel after proceedings issued

11.9.2.1 Personal injury
In the vast majority of personal injury cases, proceedings will be issued without the need for a
conference with counsel, and many low-value cases proceed to trial without such a
conference. In more complex personal injury cases, the solicitor and counsel will want to be
sure that the expert has studied all the papers sent to him, has understood the facts of the
case, and that he has excellent communication skills. These and other matters can be assessed
at a conference.

11.9.2.2 Clinical negligence

In addition to the conference prior to the issue of proceedings in a clinical negligence case, it
is common to have a further conference after the exchange of lay witness statements to check
whether all the experts can still support the case. A further conference is normally arranged
prior to the trial to review matters.

11.10 CONCLUSION
The role that the expert has in a personal injury or clinical negligence case is a significant one.
The importance of the selection of the correct individual cannot be overestimated. The key
points are summarised below at 11.12.

11.11 FURTHER READING

Pre-action Protocol for Personal Injury Claims
Pre-action Protocol for the Resolution of Clinical Disputes
Protocol for the Instruction of Experts to Give Evidence in Civil Claims
 Instructing Experts 173

11.12 KEY POINTS

Will be restricted to that which is necessary,

and permission of the court is always
Expert evidence
required either to call an expert or to use an
expert’s report.

In-house directory.
How to find an expert Recommendation.
Organisations: APIL/AvMA.

Important to pick the correct expert –

Qualities of an expert
experience, time, cost and availability.

Note: CPR 1998, Part 35. Joint instruction/

selection – obligations under personal
Who instructs?
injury PAP. See example letter of
instruction.

More complex. Report on liability, report on

Clinical negligence causation/report on quantum. Need to be of
correct speciality and status.

Reports need to contain certain specified

CPR 1998 requirements
points. See Part 35 and relevant PDs.
174 Personal Injury and Clinical Negligence Litigation