EWJ June 2024 web - Journal - Page 26
Muyepa and Scarcliffe:
Lessons from the High Court
by Bruno Gil - Old Square Chambers, www.oldsquare.co.uk
leader, nor to think of themselves as part of the
Claimant’s or Defendant’s “team”. They are independent, objective Part 35 experts who owe an overriding
duty to the Court. If that is not heeded, criticism can
be expected. No expert would wish to read the phrase
“a rather unfortunate attempt to shore up an untenable opinion” as a description of their oral evidence, as occurred
in Muyepa.
Mr Justice Cotter has handed down judgment in the
case of Scarcliffe v Brampton Valley Group Ltd [2023]
EWHC 1565 (KB). The decision has themes in common with last year’s decision of Muyepa v Ministry of
Defence [2022] EWHC 2648 (KB). Both cases feature
excoriating criticisms of experts for both sides and
they see substantial sums of claimed losses not being
recovered by the Claimant. Read together, they give a
clear indication of the issues that are being picked up
in personal injury and clinical negligence litigation. It
seems that there are points to take away for lawyers
on both sides. Points which, if ignored, will be to the
detriment of our clients. The intention of this article
is to pick out these themes and consider their
implications.
This misunderstanding of the role potentially comes
from inexperience. By that I do not just mean a lack
of experience of trial, which is an unfortunate and unavoidable consequence of so few high-value personal
injuries fighting to trial. I mean also that they have
gone relatively unchallenged by their legal representatives for years. Both sides have developed their ‘stable’ of preferred experts, who have been sequestered
away, writing reports and joint statements for the same
solicitors time and again. Those who rely on litigation
work for their main income understandably want to
maintain their source of instructions. They are incentivised to provide reports that serve their side’s interests. With both sides’ eyes being on settlement rather
than trial, reports have been not robustly tested and
challenged, and inevitably have inflated over time beyond sustainable limits, as was exposed in both Muyepa
and Scarcliffe.
To introduce these claims briefly:
• Muyepa was a non-freezing cold injury claim. Those
familiar with the case will know that it ended in a finding of fundamental dishonesty against the Claimant –
a point that is largely irrelevant to the parts of the
judgment analysed below. This was a case which, at its
highest, was pleaded at £3,766,615. A substantial part
of that total came from two heads of loss, namely care
and loss of earnings. The quantification of those heads
was based upon the calculations set out in the
Claimant’s expert reports for care and employment.
Concessions were made on behalf of the Claimant as
the case progressed, and more was abandoned at trial,
although the case was never put below £1.6M. At trial,
it was held that the claim was, in fact, worth
£97,595.33, i.e. 2.6% of the original claim.
The loss of objectivity can be further compounded if
an expert neglects to consider or address the range of
opinions on a given issue. An objective analysis requires setting out and opining upon reasonable alternative views. It is a very important part (or ought to
be) of the expert’s evidence. It is provided for by Practice Direction 35 3.2(6), yet it is often not heeded (as
was the case in Muyepa with both the care and employment reports). That frequent omission is either
because the experts have forgotten the requirement,
or never knew it.
• Scarcliffe was an orthopaedic injury – fractures of
the transverse processes of L2 and L3 - leading to
chronic pain. Judgment had been entered in favour of
the Claimant. The case proceeded only in respect of
quantum. As with Muyepa, the care claim formed a
very substantial part of the total damages, which ran
to a total of £6,189,507.49. Even after some concessions at trial, the Claimant contended for over £5M.
The Claimant recovered £275,063.03, i.e. 4.4% of the
pleaded value.
It is incumbent upon us lawyers to ensure that the
experts instructed in our cases truly understand what
CPR 35.3 means. This extends to the principles set
out in “The Ikarian Reefer” [1993] 2 Lloyd’s Rep. 68
(Comm Ct)1, which can be found in a distilled form in
Practice Direction 35. We need to be satisfied that the
expert is not simply telling us what we want to hear.
This rigour will allow us to identify the true strengths
and weaknesses of the case, but is also for the expert’s
own benefit to avoid embarrassment and professional
damage at trial. It is also why there is a call within the
judgment of Muyepa for experts to provide a breakdown of their claimant:defendant split, so that parties
and the Court can be alive to the risk of a partisan view
(conscious or unconscious).
Lessons for Both Sides
1) The Role of the Expert
For anyone who reads both judgments, it will be clear
that parties are being encouraged to have a paradigm
reset when it comes to the role of experts.
In both cases, some (but not all) of the medical and
non-medical experts faced criticism, largely resulting
from a misconception as to their role. Mr Justice Cotter appears keen to disabuse parties and experts of
this misunderstanding. Their role is not to be cheerEXPERT WITNESS JOURNAL
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JUNE 2024