February 15, 2018
I recently represented a claimant at a trial of his claim for damages arising from alleged clinical negligence. Liability was vehemently denied by the defendant and, as you would expect, each party had their own medicolegal expert on the issue of breach. At the beginning of the trial I applied to the judge for an order that (a) the defendant disclose their letter of instruction to their expert and (b) I could cross-examine the expert about the content of that letter. I had never made an application like that before in my career.
I got disclosure and permission to cross-examine. The contents of the letter of instruction and the evidence I was able to elicit from the defendant’s expert in cross-examination changed the complexion of the trial completely.
Mine is probably an extreme example. Most letters of instruction will be perfectly bland and would cause no significant impact on the progression of a trial. I should think, however, that the majority of solicitors would prefer not to have their letter of instruction in the hands of the opposing party with their expert being asked questions about it.
As such, I thought it would be useful for me to highlight in this note the importance of sub-paragraphs (3) and (4) of CPR 35.10. The lessons to be learned are not so much about making an application for disclosure of a letter of instruction but rather managing your own expert’s evidence to make sure that you never find yourself on the receiving end of such an application.
Those sub-paragraphs I mentioned above say this (emphasis added):
(3) The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
(4) The instructions referred to in paragraph (3) shall not be privileged against disclosure but the court will not, in relation to those instructions –
(a) order disclosure of any specific document; or
(b) permit any questioning in court, other than by the party who instructed the expert,
unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under paragraph (3) to be inaccurate or incomplete.
So, the expert is under a duty to state the substance of all material written and oral instructions on the face of the report. Sub-paragraph (3) is mirrored in PD 35.3 sub-paragraph 3.2(3):
An expert’s report must…contain a statement setting out the substance of all facts and instructions which are material to the opinions expressed in the report or upon which those opinions are based
This seems like the simplest of things to do. We will all be familiar with paragraphs at the start of an expert’s report headed ‘instructions’. Perhaps we are so familiar that often those paragraphs are skim read.
We will also be familiar with reports (particularly addendum reports) that begin with something as brief as “Thank you for your letter…” That, it seems to me, would never be enough to satisfy CPR 35.10(3).
Lawyers and experts must make sure that the statement in the report complies with the requirement to recite the substance of all material facts and instructions. Failure to do so not only opens the door to an application like mine, it undermines the standing of the expert in the eyes of the court. However eminent and experienced a practitioner they may be, they are appearing in court as an expert witness and there should be no question of them failing to comply with every aspect of CPR 35. See, for example, Bacciotinni v. Gotelle  EWHC 3257 where things did not go well for the claimant’s expert in this regard. HHJ Barker QC observed (at para.8):
Mr Hancock, who is the claimant’s witness, was making his debut as an expert witness to the court. His evidence was not CPR 35 compliant, notwithstanding that his instruction pack had included a copy of CPR 35. When taken through certain provisions of CPR 35 in cross-examination, it became apparent that he was unfamiliar with CPR 35, and further, that he had really not addressed his mind to the approach to be taken by a court expert.
May I encourage you, therefore, to make sure that those all so familiar introductory paragraphs to your expert’s report are read carefully and checked for compliance with CPR 35.10(3). Something as apparently simple as listing the documents they have been sent and the issues they have been asked to consider may avoid a host of complications later on.