The absent expert: Can last-minute unavailability justify the loss of a trial date?  

In personal injury claims, expert evidence is often fundamental. This is especially true in historic claims where other evidence may have suffered from the passage of time. Should the issues prove contentious, written reports will likely need to be supported by the expert in person at trial. When it is discovered that an expert cannot attend a trial date that is fixed and imminent, defendants face the risk of trial loss, or last-minute settlement negotiation in which the claimant has the upper hand.

How do the Courts deal with this? Two recent cases offer some clues.

Mitchell v Precis 548 Ltd [2019] EWHC 3314 (QB)

Mitchell concerned a claim for mesothelioma brought on behalf of the estate of Mr Mitchell. There was material dispute between the medical experts. The defence of the first defendant rested solely on the evidence of their expert, G. The first defendant applied to vacate trial on the basis that G was unable to attend. The application was heard two days before the trial date. It was refused.

Duffy v Secretary of State for Health [2015] EWHC 867 (QB)

Duffy was concerned with alleged negligence leading to the severe disability of the claimant. Ms Duffy relied on the medical report of F, causation having been denied by the defendant. It was reported in the press that F had taken cocaine. He was suspended by the General Medical Council. F claimed the incident had an effect on his health to the extent that he was unable to appear in Court. The claimant applied to adjourn. The application was granted.

What distinguishes the decisions?

In Fitzroy Robinson Ltd v Mentmore Towers Ltd [2009] EWHC 3070 (TCC) it was held that the Courts should consider:

(a) The parties' conduct and the reason for the delay;

(b) The extent to which the consequences of the delay could be overcome before trial;

(c) The extent to which a fair trial might be jeopardised by the delay;

(d) Specific matters affecting the trial such as the illness of a critical witness;

(e) The consequences of an adjournment for the parties and the court

In Mitchell, G had informed the first defendant some five months prior of his unavailability for the fixed trial date. The application to vacate was made only weeks before trial, and was strongly opposed by the claimant. Freedman J acknowledged the prejudice caused to the first defendant in rejecting the application but was ultimately critical of the delay.

In Duffy, the defendant agreed to the claimant’s application. A witness statement by F describing his reasons for non-attendance was also served. This referred to a GP note excusing his attendance, but this was not included in the statement itself. In his judgment, Foskett J emphasised that the consent of the other party was not binding. He expressed concern with the absence of the GP note but considered it non-persuasive. He further noted there had been no reason given why F could not attend via video link.

In granting the application, Foskett J ultimately gave weight to:

1. The likely prejudice suffered by the claimant should the trial go ahead without F’s attendance.
2. The difficulty of establishing causation in the case.

The burden on the party applying is a heavy one, and more so when there is no solid reason for the application or significant delay. The decision in Duffy should be considered the exception not the rule. Defendants need to make sure that:

• The Court is advised of expert availability during a trial window;
• Expert attendance is locked down as soon as a trial date is fixed;
• If this cannot be done, an application is served promptly with evidence in support – as a minimum this should be the witness statement of whomever has caused the delay, with medical notes or further documents if necessary;
• The application be requested with a hearing, regardless of whether other parties agree to adjournment. The Court will want to know why the timetable is being disrupted.

Nothing can guarantee the success of an application to adjourn. Courts can be very concerned to try to preserve a trial date. The missing expert can always cause problems.

Author: Jennifer Blake - Trainee Solicitor