Jennifer Arden v. Anthony Malcolm [2007] EWHC 404 (QB)
Jennifer Arden v. Anthony Malcolm [2007] EWHC 404 (QB)
Jennifer Arden v. Anthony MalcolmClinicians or Statisticians – Who Should
Give Evidence on Life Expectancy?
Rule 35.1 of the Civil Procedure Rules 1998 provides:
“Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.
The recent decision of Tugendhat J in the case of Jennifer Arden v. Anthony Malcolm [2007] EWHC 404 (QB) is an illustration of this rule in practice. It also contains guidance on the use of statistical evidence in high value claims, as well as reiterating the correct approach to be adopted by an appellate court when dealing with an appeal from a case management decision.
Factual Background
On 1st April 2002 the Claimant was seriously injured when her motorcycle collided with a motor vehicle driven by the Defendant. She suffered severe diffuse brain injury and atrophy of the left optic nerve due to a fracture in the base of her skull. She was functionally blind immediately after the accident and although there had subsequently been modest improvement in her condition she was expected to always require 24 hour supervision in view of her poor sight and cognitive impairment.
Liability was agreed, on a 50/50 basis, in June 2004.
On 11th September 2006 the claim came before HHJ O’Brien for a Case Management Conference. Prior to that CMC, the medico-legal evidence consisted of three reports. The Claimant relied upon a report from a Dr Kirkler, a Consultant in Rehabilitation Medicine and a report from a Dr Hardie, a Consultant Neurologist. Dr Hardie’s report was dated 28th April 2005 and dealt with, inter alia, the fact that although the Claimant’s weight had increased by more than 50 per cent since her accident, he did not anticipate a significant reduction in her life expectancy.
The Defendant relied upon a report from a Professor Trimble. He was a Professor of Behavioural Neurology and a Consultant Physician of Psychological Medicine. His report was prepared following a consultation in May 2005. It did not deal with the Claimant’s life expectancy.
By the time of the CMC Dr Hardie and Professor Trimble had met and agreed a Joint Statement, wherein they said that they believed her life expectancy was normal.
In addition to medico-legal evidence, the Defendant had obtained a Rehabilitation Cost Report from Caroline Ferber, a Brain Injury Case Manager. Ms Ferber estimated the cost of future care at about £100,000 per annum.
Just prior to the commencement of the CMC, Junior Counsel for the Defendant informed his opponent that his solicitors had obtained a report from Professor Strauss, the well-known and highly respected statistician, who was Emeritus Professor of Statistics at the University of California. Professor Strauss’s report concluded that, as a result of the accident, the Claimant’s life expectancy was 8.7 years less than for a female of the same age in the general population. This represented a potential saving (for the Defendant) in the cost of care of about £165,000.
The Defendant then sought permission to rely upon the report. HHJ O’Brien refused that application. He based his refusal upon a number of factors, including: (i) the fact that the Defendant had obtained Professor Strauss’ report without any reference to the Claimant and without an invitation that his instruction be on a joint basis; (ii) the fact that there was already agreement about the jointly appointed experts on the issue; and (iii) the fact that it was made too late in the quantification process, i.e. at 2¼ years after it began. He said that if he had allowed the application it would have driven a coach and horses through the general intention of the CPR.
The Appeal
Permission to appeal was obtained on a paper application.
Before Tugendhat J the Defendant contended that the Claimant would not suffer prejudice by the introduction of this new evidence and that the only issues for consideration were delay and costs. The point was also made that there was nothing in the CPR which prevented a litigant from asking for expert evidence at their own expense without disclosing that fact to the other side. Moreover, neither practice nor principle required the Defendant to make a proposal to the Claimant for the joint instruction of a statistics expert. Reliance was also placed upon Cobbold v. London Borough of Greenwich (unreported 9th August 1999) and Cosgrave v. Pattison (unreported 27th November 2000) and the general need to ensure that a party to litigation feels that he has not been precluded from putting forward his best case. It was also said that although the learned judge had said it was too late in the process to obtain this evidence, there was sufficient time to enable the parties to deal with this evidence.
In reply the Claimant said that the proper approach on an appeal from a case management decision was as set out in Royal & Sun Alliance Insurance v. T&N Limited [2002] EWCA Civ 1964, wherein it was said that the Court should not interfere with case management decisions if the judge had applied correct principles and taken into account all relevant matters, unless the decision was so plainly wrong that it was to be regarded as outside the generous ambit of the discretion entrusted to the judge. The Claimant also submitted that clinicians should be the expert witnesses who gave primary evidence of life expectancy. Only if the clinicians were not agreed on a statistical matter was there any need for evidence from a statistician. The Claimant relied upon the case of Royal Victoria Hospital v. B (A Child) [2002] EWCA Civ 348 and the reference therein to the fact that it would be “wrong to decide the expectation of life purely by reference to Professor Strauss’s statistics …”.
Reliance was also placed on the passage in the Royal Victoria Hospital case, wherein it was said that “ … statistics are a useful tool in the hand of the clinician but where reliable medical evidence is before the court, they should not displace the expertise of the clinician. They provide, rather, a useful background to and cross check the work of the doctor”.
In giving judgment, Tugehdhat J said that he was of the view that the Defendant was correct in asserting that a party is not bound to propose the instruction of an expert. However, parties were not to be encouraged in a course of action whereby reports were produced without warning on the day of the hearing.
He considered that he must address the contentions of the parties afresh. This was not just because he accepted one of the Defendant’s criticisms of the judge, but also because he felt that as the evidence stood the trial judge might be left in some difficulty. He felt that the answer lay in giving the parties permission to ask questions of the clinicians.
He refused the Defendant’s appeal. He considered his approach was in the spirit of the Court of Appeal in the Royal Victoria Hospital case. He was of the view that the correct approach was for Professor Strauss’s statistical material to be raised in the form of questions to the existing experts. Only if there was then disagreement between the clinicians on a statistical matter ought the evidence of a statistician be required. He did not accept the Defendant’s submission that this was not a practical way of proceeding. He felt that permission for Professor Strauss’s evidence was not necessarily needed in order for justice to be done.
Comment
Two important principles are seen in operation in this decision. Firstly, Tugendhat J was at great pains to demonstrate that an appellate court will be very slow to interfere with a properly made case management decision. Secondly, it is clear that the court will be slow to permit the evidence of statisticians unless there is clear disagreement between the clinicians regarding the application of statistical evidence in relation to life expectancy.
It can also be said that the approach adopted by Tugendhat J is entirely consistent with decisions such as Cosgrave v. Pattison and Daniels v. Walker [2000] 1 WLR 1382, wherein litigants have been very actively encouraged to make full use of Part 35 Questions.
However, given the fact that Tugendhat J acknowledged that time might show that Leading Counsel for the Defendant was correct in his view that this was not a practical way of proceeding (because the evidence of Professor Strauss would be necessary if the clinicians were unable to agree) one cannot help but feel that this is a case in which the Overriding Objective’s goal of saving expense (CPR 1.1(2)(b)) was overlooked in favour of the need for the appellate court to reiterate its view that it will be slow to interfere with the case management powers of the lower courts.