July 26, 2016
by Simon Earlam
The claim nearly got into trouble because the Claimant’s solicitor was too conscientious! How can that be? Try this.
The claim required expert evidence from a recondite expert. There was a limited pool of such experts in the UK. A time limit had been imposed on service of the report in circumstances in which an extension of time had already been granted. The expert was fully aware of the need for strict compliance with the order and accepted his instructions on that specific basis. Nevertheless, over several months, the expert repeatedly broke his solemn promise to prepare his report, making all sorts of lame excuses. His instructing solicitors even offered their own secretarial services to no avail but persisted in their instructions in the hope the expert would finally produce his report in time as he had repeatedly promised because it would have been so difficult to find an alternative expert to report in time from such a limited pool.
In the end, the solicitors finally dis-instructed the expert within a week or so of when his report had to be served to comply with the order when it was already too late to instruct a substitute. In those circumstances, how could the solicitors comply with the order? They felt obliged to serve the Claimant’s treating consultants’ reports which, in my view but not theirs, did not comply with the order; they were not CPR Part 35 compliant and in fact offered no prognosis. The reason for the disagreement is interesting. Had the reports actually served been served with the Particulars of Claim, it would have been more arguable they were sufficient even though they lacked certification of compliance with Part 35, because CPR Part 16.4(1)(e) incorporated 16 PD 4.3 which stipulates that, where the Claimant is relying on the evidence of a medical practitioner, he must serve a report from a medical practitioner about the personal injuries he alleges in his claim. The Practice Direction does not stipulate the report must contain evidence of prognosis. On this basis, the solicitors felt the report served complied with the order and so an application for a relief from sanction was not required. I disagreed. Unfortunately, the solicitors failed to observe that the original directions required service of a medical report (which direction was consistent with the requirements of 16 PD 4.3) but that the direction subsequently made which required compliance specifically ordered that the medical report should state the condition and prognosis for the Claimant. On any view, the reports served did not do so. I therefore advised an application for relief from sanction was necessary, a view with which the District Judge Jenkinson agreed. Happily, this application was granted, but the solicitors almost fell afoul of the order because they had been so conscientious in pursuing the original expert for too long, who was stringing them along.
Is the lesson to be learned to expect more of the experts who accept instructions on the explicit basis that there was a strict time limit, and to dis-instruct them much earlier to afford a chance of instructing a substitute expert who can still report in time? However, this may be difficult, where, as here, the available substitute requisite expertise was so limited in the UK. Either that or an application to extend the time for reporting in advance of the date for reporting, which again may not be easy when the time limit has already been extended significantly already?