Overuse of Experts: A chronic source of pain for insurers
One of the most frustrating issues facing insurers in the fight against ever increasing costs is the proliferation of expert’s reports. In practice claimant lawyers appear to assume they have free rein to commission expert evidence from a range of experts in anticipation that the Court will simply acquiesce with their approach.
The overuse of experts was the subject of judicial commentary in the recent case of Cooper v Campen (t/a Woodford Service Station) [2020 12 WLUK627].
This was an oral appeal from a case management decision heard by Mrs Justice Eady and her judgment is one that should be welcomed by insurers.
The case involved a 38 year old claimant who suffered a fracture dislocation of her right ankle when she slipped at the defendant’s garage. Liability was agreed on a 70/30 basis. The claimant’s case was that she subsequently developed a multi-site, debilitating chronic pain condition and would need lifelong care and the provision of aids/equipment. She sought damages in excess of £1m. In support of her claim she sought to rely on evidence from Ms Hardy, a care/occupational therapy (OT) expert.
The parties were given permission to adduce evidence from orthopaedic and psychiatric experts. The orthopaedic experts agreed in their joint statement that, “from an orthopaedic/structural/biomechanical aspect, we would not anticipate care/support needs”. They deferred to the psychiatric experts to define any care needs relating to their area of expertise.
By contrast the psychiatrists, Dr Davidson for the claimant and Dr Master for the defendant, could not reach agreement. Dr Master believed the claimant would return to work with a reasonable level of motivation and engagement with treatment, whereas Dr Davidson believed the long-term outcome was more uncertain.
When pain experts were engaged their views also diverged. Dr McGowan (for the claimant) thought it unlikely her symptoms would improve, whereas Dr Munglani believed the claimant would enjoy a significantly improved quality of life and have a “good capacity for care and assistance and work prognosis” once the case was over and she had received psychological treatment. Only Dr McGowan specifically recommended a report from a care/OT expert, “to ascertain how the current and past limitations are affecting the claimant and how future limitations can be ameliorated”.
The claimant sought permission for a care report at a CCMC in July 2019 but at that stage the issue was deemed premature as the medical evidence was incomplete. The claimant tried again in July 2020 before HHJ Baucher. By this time Ms Hardy had prepared two reports. HHJ Baucher refused permission noting “the eye watering claim for care, in excess of £500,000”. Permission to rely on the evidence of Ms Hardy was refused. The claimant appealed but was rejected on paper by Mr Justice Knowles before the case reached Mrs Eady J. She too rejected the appeal and in so doing refused permission for care evidence.
At the outset she reminded the parties that an appellant Court would be slow to overturn a case management decision citing British Airways Plc v Spencer  EWHC 2477.
In giving her judgment, she cited CPR35.1, which states “expert evidence shall be restricted to that which is reasonably required to resolve the proceedings”.
She agreed with HHJ Baucher that the claimant could give evidence about her care needs, supported by witnesses, notably family members, saying: “the commissioning of a care report was not something that would have been expected absent permission from the court”.
What is perhaps so important about this decision is that Eady J did not believe the claimant’s evidence could be limited solely to personal care she might require, saying, “if the Claimant’s evidence is… that she has reduced mobility such that she needs a mobility scooter, or needs a new car with adaptations…. that is something she will be able to tell the Court and she will have looked at the cost that she will face and, again, will be able to give evidence to the Court…. I do not accept that these are matters on which material is not available to the Claimant, and those advising her, without the need to seek recourse to expert evidence”.
This is a very helpful judgment from a defendant perspective in the continuing fight to limit costs. As people live longer, a greater understanding of care needs and the costs associated with those needs is developing among the wider population. This appears to be something that Mrs Justice Eady is contemplating when she referred to evidence the claimant would be able to provide, “from objective sources, such as local authority figures for care, or from the Claimant’s own research, if it is a matter of equipment she needs”.
A number of points are worthy of mention:
- Remind your opponent at the outset of CPR 35.1, and that permission will be needed from the court before they embark on obtaining care evidence.
- Instruct your experts to take a full history of the care the claimant says is needed, who provides care, the type of help needed and when.
- Ensure your experts address whether alleged care needs and any requirement for aids/equipment can reasonably be linked to the injuries sustained and any ongoing symptoms.
- At the first CCMC, invite the court to defer permitting care evidence pending commentary from the “core” experts.
- Deploy the argument sensibly. Pick the right case with the right claimant. Those with the most serious injuries and complex needs will rightly need expert input to help ensure their reasonable care needs are met.
Beyond any partisan view, the court’s powers to control expert evidence are not to be taken lightly and in this and many other cases the courts will apply a forensic eye to what is reasonably required. Any party who hopes to “bounce” the court, pre-empting the issue by unilaterally obtaining a report, risks hefty sanction, especially if they allow such evidence into the arena with other experts before permission has been obtained. See for example the case of Knapman v Carbines  EWHC 3586 (QB) where a defendant came to grief having done exactly this; the judiciary expect cards on the table and will penalise either side who steps over the tactical red line!