RICHARD THURBER CARLSON v KAREN TOWNSEND [2001] EWCA Civ 511

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WORCESTER COUNTY COURT

(H.H. Judge Geddes)

(District Judge Dickinson)

[2001] EWCA Civ 511

Case No Case No: B2/2000/3255

Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Tuesday 10th April 2001

Between

RICHARD THURBER CARLSONClaimant/ Respondent

KAREN TOWNSENDDefendant/ Appellant

Before

Lord Justice Simon Brown

Lord Justice Brooke

Lord Justice Mance

Mr D. O'Brien QC & Mr C. Taylor (instructed by Metcalfes) for the Appellant

Mr J. Corbett QC & Mr A. Rai (instructed by Broadhursts ) for the Respondent

Date 10 April 2001

LORD JUSTICE SIMON BROWN:

This

[1]is a second tier appeal raising an important point of practice about the disclosure of medical reports under the Pre-Action Protocol for Personal Injury Claims. That Protocol, under the heading Experts, provides:

"3.14 Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. ... 3.16 Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert."

[2]Pursuant to those provisions the claimant gave the defendant a list of three names of consultant orthopaedic surgeons. The defendant objected to one of the three whereupon the claimant instructed one of the remaining two, Mr Trevett. Having obtained Mr Trevett's report, however, the claimant then declined to disclose it and instead instructed another expert, Dr Smith, not one of those originally named.

[3]On 14 July 2000 District Judge Dickinson in the Worcester County Court ordered the claimant to disclose Mr Trevett's report. On 21 September 2000 Judge Geddes allowed the claimant's appeal against that order. The defendant now appeals to this Court with the permission of May LJ.

[4]As it seems to me, two central questions arise for decision on the appeal. First, does the claimant's refusal to disclose Mr Trevett's report constitute a failure to comply with the Protocol? Second, even assuming that it does, can the Court properly then order the report's disclosure? These questions are ones of general application and in no way dependent upon the detaileld facts of this particular case. The following brief summary will therefore suffice.

[5]The dispute arises in the context of a personal injury claim brought by the claimant in respect of a back injury which he suffered as a care assistant whilst employed by the defendant to look after her disabled adult son, in particular through repeatedly having to lift and move him. After the letter before action but before the issue of proceedings the claimant's solicitors on 6 May 1999 wrote to the defendant's insurers stating:

"We will wish to shortly instruct a consultant orthopaedic surgeon to prepare a report and in this regard it is our intention to instruct a consultant from one of the following, namely Mr K. O'Dwyer or Mr M. Trevett based at Worcester Royal Infirmary or Mr I.S.R. Reynolds based at Hereford. Please let us know if you have an objection to any of these consultants. If so, please let us know who you object to when we will instruct one of the others."

[6]On 11 May 1999 the defendant's insurers replied:

"... we object to Mr K. O'Dwyer but have no objection to any of the others on your list. Thus we assume you will be appointing either Mr Trevett or Mr Reynolds."

[7]In the event Mr Trevett was instructed and, having examined the claimant, he reported to the claimant's solicitors on 17 November. Meantime, on 16 November, the defendant's insurers had written:

"... we assume you went ahead with the medical instructions which were to be on a joint instruction basis. Thus, we would expect the report to be delivered to us at the same time as yourselves."

[8]The claimant's solicitors immediately challenged the insurers' contention that the medical instructions had been on a "joint instruction basis". Later, on 8 June 2000, they stated that Mr Trevett's report would not be disclosed and enclosed instead a copy of a medical report by Dr Brendan Smith (a consultant anaesthetist and specialist in spinal pain relief) dated 23 March 2000. The defendant's application to the District Judge for Mr Trevett's report to be disclosed followed shortly afterwards.

[9]District Judge Dickinson ruled that on a proper construction of the Protocol there is no distinction between the "joint selection" of a medical expert and the "joint instruction" of a medical expert and that Mr Trevett was to be regarded as jointly instructed by both parties. On that approach, of course, both parties would have an equal right to see his report.

[10]On appeal, however, Judge Geddes took the contrary view. He concluded that the claimant alone had instructed Mr Trevett and that there had been no waiver of the privilege which ordinarily attaches to a medical report prepared for the purposes of litigation. He furthermore found that the appropriate Protocol imposed no requirement for the expert to be jointly instructed and that nothing in it required disclosure of a report merely because it was provided by "a mutually acceptable expert".

[11]Let me at this point repeat for convenience paragraphs 3.14 and 3.16 of the Protocol and set them in the context of the other paragraphs under the heading Experts, two of which influenced

the Judge below:

"3.14 Before any party instructs an expert he should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he considers are suitable to instruct. 3.15 Where a medical expert is to be instructed the claimant's solicitor will organise access to relevant medical records - see specimen letter of instruction at Annex C. 3.16 Within 14 days the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert. 3.17 If the second party objects to all the listed experts, the parties may then instruct experts of their own choice. It would be for the court to decide subsequently if proceedings are issued, whether either party had acted unreasonably. 3.18 If the second party does not object to an expert nominated, he shall not be entitled to rely on his own expert evidence within that particular speciality unless: (a) the first party agrees, (b) the court so directs, or (c) the first party's expert report has been amended and the first party is not prepared to disclose the original report. 3.19 Either party may send to an agreed expert written questions on the report, relevant to the issues, via the first party's solicitors. The expert should send answers to the questions separately and directly to each party. 3.20 The cost of a report from an agreed expert will usually be paid by the instructing first party: the costs of the expert replying to questions will usually be borne by the party which asks the questions. 3.21 Where the defendant admits liability in whole or in part, before proceedings are issued, any medical report obtained by agreement under this protocol should be disclosed to the other party. The claimant should delay issuing proceedings for 21 days from disclosure of the report, to enable the parties to consider whether the claim is capable of settlement. The Civil Procedure Rules, Part 36 permit claimants and defendants to make offers to settle pre-proceedings."

[12]Judge Geddes found support for his conclusions in paragraphs 3.18(c) and 3.21. Paragraph 3.18(c) in terms postulates that "the first party is not prepared to disclose the original report" i.e. is prepared to disclose only an amended report. If the nature and extent of an amendment need not be disclosed, why then cannot the whole report simply be withheld and another one obtained and disclosed instead?

[13]Paragraph 3.21 provides expressly for disclosure of "a medical report obtained by agreement" - which I take to be the same as a medical report from "a mutually acceptable expert" (paragraph 3.16) which in turn is the same as a report from "an agreed expert" (paragraphs 3.19 and 3.20) - where liability is admitted. But what need would there be for this provision if disclosure of such a report is required in any event and why, indeed, is the provision confined to cases where liability is admitted? The implication can only be that in other cases disclosure is not required.

[14]Mr O'Brien QC for the appellant submits that reasoning of this sort is inappropriate in the case of a non-statutory Protocol. The Court should, he contends, determine its meaning more pragmatically and in the light of its clear objectives; the usual canons of construction do not apply.

[15]He places particular reliance upon the Introduction and Notes of Guidance to the Protocol. Amongst its aims set out in paragraph 1.2 of the Introduction are:

"More pre-action contact between the parties, better and earlier exchange of information, better pre-action investigation by both sides, to put the parties in a position where they may be able to settle cases fairly and early without litigation ... "

[16]Paragraph 2.4 of the Notes of Guidance refers to "the 'cards on the table' approach advocated by the Protocol" and paragraph 2.11 reads:

"The protocol encourages joint selection of, and access to, experts. ... The protocol promotes the practice of the claimant obtaining a medical report, disclosing it to the defendant who then asks questions and/or agrees it and does not obtain his own report ..."

[17]There in terms the Protocol is promoting disclosure of the claimant's report. And indeed, Mr O'Brien points out, without such disclosure there cannot be "joint ... access to experts", which the Protocol encourages, nor questioning of the report by the defendant, which again paragraph 2.11 envisages and which paragraph 3.19 of the Protocol expressly provides for.

[18]That the Protocol contemplates the voluntary disclosure of the claimant's expert's report (certainly where it has been obtained from "an agreed expert") in the vast majority of cases I have not the least doubt. Such a course plainly reflects the modern and highly desirable "cards on the table" approach and best facilitates settlement of claims ideally before, but failing that after, the issue of proceedings. But that is not to say that the Protocol specifically requires disclosure in every case and still less that its effect is to override the substantive law with regard to privilege.

[19]It seems to me one thing to provide, as the Protocol undoubtedly does, for a practice whereby experts objectionable to one party are eliminated at the outset and with them an obvious barrier to the prospect of ultimately agreeing the expert evidence; quite another to hold that by giving the other side the opportunity to object to a proposed expert, a party is thereby waiving in advance the privilege which would otherwise attach to the report being obtained. In the Rules themselves, of course, there is express provision for the court to direct that evidence be given by a single joint expert - rule 35.7. In this event, "each instructing party may give instructions to the expert" - rule 35.8. There is plainly in these circumstances joint instruction of the expert with the result that both parties have (unless the court directs otherwise) an equal liability for his fees and an equal right to see his report. That, however, is not what happens when the Protocol is followed. On the contrary, paragraph 3.16 requires in terms that "the first party should then instruct a mutually acceptable expert", and the specimen letter provided for by paragraph 3.15 begins "We are acting for the above named in connection with injuries received in an accident ... ", and repeatedly thereafter refers to him as "our client". Jointly selected the expert in a real sense has been; jointly instructed, however, he is not.

[20]The Access to Justice, Final Report, July 1996, states with regard to this part of the Protocol: "Provided at least two names are acceptable to both parties, the claimant may reject a report by the expert of his first choice without letting the defendant know that he has done so." (Paragraph 9 of Chapter 10 at page 109).

[21]Mr O'Brien was forced to concede that, had the claimant here gone to Mr Reynolds after Mr Trevett, he would not have had to disclose Mr Trevett's report (although, had the case reached the stage of discovery, its existence as a privileged document would doubtless have had to be acknowledged). I for my part cannot see why it makes any difference to the disclosability of the report that the claimant went secondly to Mr Smith, a non-nominated and therefore unagreed expert, rather than to Mr Reynolds, another "mutually acceptable expert".

[22]I can state my overall conclusions on the appeal really very shortly: 1. Although the Protocol plainly encourages and promotes the voluntary disclosure of medical reports, it does not specifically require this. 2. Withholding Mr Trevett's report did not constitute non-compliance with the Protocol although the instruction of Dr Smith without first giving the defendant an opportunity to object plainly did. 3. Paragraphs 2.1 and 2.3 of the Practice Direction on Protocols provide the court with ample and various sanctions - in particular with regard to directions, costs and interest - for non-compliance with a Protocol. In the present case, of course, the claimant has still to obtain the necessary permission from the court to call Dr Smith. The defendant for her part would almost certainly, if she wished, be permitted to call an expert of her choice. The court would, after all, know that one expert at least, Mr Trevett, had reported less favourably to the claimant's cause than Dr Smith. 4. One sanction not available to the court, however, would be to override the claimant's privilege in Mr Trevett's report. 5. This appeal in truth could only succeed if Mr O'Brien established his central contention that, on a true understanding of the Protocol, the defendant's non-objection to a nominated expert of itself transforms that expert, once instructed, into a single joint expert whose report is accordingly available to both parties. This is not an argument I can accept either in principle or upon the scheme or language of the Protocol.

[23]I would accordingly dismiss this appeal, and add only that I cannot recognise in the result the apocalyptic future which Mr O'Brien has sought to conjure up. In the vast majority of cases the initial selection of an unobjectionable expert will continue to increase the prospects of his evidence being agreed. Success cannot be guaranteed. But the Protocol will still serve its purpose.

LORD JUSTICE BROOKE :

[24]The introduction of pre-action protocols, and of the procedures they suggest for the obtaining of expert evidence, represents a major step forward in the administration of civil justice. Any practitioner or judge with significant experience of personal injuries litigation will have been very familiar with the mischiefs they seek to remedy. Under the former regime, in many disputed cases of any substance nothing very effective seemed to happen until a writ was issued close to the expiry of the primary limitation period. So far as the use of experts were concerned, there were often complaints that they appeared to be playing too antagonistic a role on behalf of the client who was paying for their services, so that it was most unlikely that the other side would accept their report. This led to further delay and expense while the other side instructed their own expert, who might well adopt an equally antagonistic position.

[25]In 1988 the authors of the Report of the Review Body on Civil Justice showed that they were baffled by this problem. They wrote (paras 198-9):

"Delay before commencement of proceedings has proved to be an intractable matter. For personal injury cases Table 9 in Chapter 7 shows that proceedings had not been started within a year of the incident in 65% of cases. In 19% of cases proceedings were not started until 6 months or less before the close of the 3 year limitation period. It is a matter for the parties and their legal advisers whether or not to start proceedings at all and, if so, whether to seek to reach a settlement before formal proceedings begin. It does, nevertheless, appear that there is an element of casual or unthinking delay during the pre-writ period. In their evidence on personal injury litigation the Law Society said that some solicitors lacked expertise in this field, and this could affect their judgment as to the timescale appropriate to particular cases. Pre-commencement delay is not a matter which lends itself to rigid regulation, in whatever form. It is not easy to see, for example, how rules of court setting out a pre-commencement timetable so as to regulate handling of cases could be satisfactorily enforced."

[26]The scale of public dissatisfaction with the former slow, expensive procedures for resolving disputed personal injury claims was revealed in the research report commissioned by the Law Commission under the title " Personal Injury Compensation: How much is enough? " (1994) Law Com No 225. Section 4.12 of that report, entitled "Satisfaction with compensation at time of settlement", spoke eloquently of the distress caused to many victims of personal injury accidents by the twin scourges of cost and delay. The summary in paragraph 4.13 of the report begins as follows:

"The survey reveals that the majority of accident victims have to wait for very long periods before they receive their damages. The survey also shows that the length of time waited by respondents before their claims are settled increases with the size of the settlement. Even among the lowest settlements, one in four took more than four years to settle while among the largest claims, one-third took six years or longer to settle. Qualitative interviews provide evidence of the strain of delay, and the financial difficulties experienced during the settlement period."

[27]In his Interim Report on Access to Justice (June 1995) Lord Woolf did not mince his words. I quote only three paragraphs of this report as illustrative of a more general theme:

"Many of the difficulties which we face arise because attitudes are entrenched before proceedings are begun. Before the writ is issued, it is the adversarial approach which colours behaviour and permeates negotiations. Traditionally, the courts have been reluctant to become involved with the behaviour of potential litigants. But if the court were in a position to control behaviour, then this might avoid the need for some proceedings altogether or, if proceedings did result, could make the court's task substantially less onerous." (Chapter 19, para3). "

The subject of expert witnesses has figured prominently throughout the consultative process. Apart from discovery it was the subject which caused the most concern. The comments were not confined to specific classes of litigation. While the criticisms differed in detail depending on the type of proceedings which were being considered, the general thrust was the same. The need to engage experts was a source of excessive expense, delay and, in some cases, increased complexity through the excessive or inappropriate use of experts. Concern was also expressed as to their failure to maintain their independence from the party by whom they had been instructed." (Chapter 23, para 1). "This unhappy situation [entailing a delay of six to nine months before a single expert report is obtained] has become institutionalised. In seeking to serve their clients' best interests, lawyers have repeatedly instructed a limited class of consultants for reports. A major cause of delay is a shortage of experts, especially in the medical field, who are considered suitable to provide forensic services. The reason why solicitors have become so selective is partly because they wish to ensure that their expert will carry as much clout as possible, and a well-known name is thought to ensure this. There is also a tendency for solicitors to rely on the experts who are familiar to them. In addition, certain doctors are known to be sympathetic to particular causes, and so instructing those doctors should result in a favourable report. If a wider range of doctors were used, delays would not be so great." (Chapter 23, para 13).

[28]The resolution of these difficulties required ingenuity and imagination. Nobody could be compelled to incur the cost of commencing legal proceedings until the very end of the primary limitation period. Until legal proceedings were started, in the absence of any express statutory power (as, for instance in matters relating to pre-action disclosure of documents), the court had no direct power to control what a party might or might not do. And the common law has always recognised a privilege in communications, such as medical reports in personal injury cases, which come into existence when litigation is contemplated, if they have been made with a view to such litigation. In Causton v Mann Egerton (Johnsons) Ltd

[1974] 1 All ER 453

Roskill LJ said at p 460:

"I am clearly of the view that this court has no power to order production of privileged documents. Medical reports are in no different category from other experts' reports and it would be quite wrong to engraft a qualification on the doctrine of privilege according to the nature of the report or the class of professional qualification attaching to its maker ... [So] long as we have an adversary system, a party is entitled not to produce documents which are properly protected by privilege if it is not to his advantage to produce them, and even though their production might assist his adversary if his adversary or his solicitor were aware of their contents or might lead the court to a different conclusion from that to which the court might come in ignorance of their existence."

[29]Chapter 10 of Lord Woolf's Final Report on Access to Justice contains the beginnings of the solution to this problem. After explaining how his proposed arrangements for pre-action protocols would set out codes of sensible practice which parties would be expected to follow, he said:

"Protocols will also be an important means of promoting economy in the use of expert evidence, in particularly encouraging the parties to use a single expert wherever possible. Unless this happens before the commencement of proceedings it will frequently be too late because the parties will already have established an entrenched relationship with their own expert."

(p 108, para 6).

[30]Then, after the passage cited by Simon Brown LJ in paragraph 20 of his judgment, Lord Woolf commented, in relation to the arrangements now reflected in paragraphs 3.14 and 3.16 of the published Protocol:

"The advantage for defendants is that they can identify at an early stage if the claimant is intending to use an expert whom they regard as partisan and whose report they are unlikely to accept."

[31]These protocols are not agreements made for valuable consideration, on which one or other party can bring an action to compel compliance. Nor are they documents drafted with the precision of the products of a parliamentary draftsman. They are guides to good litigation and pre-litigation practice, drafted and agreed by those who know all about the difference between good and bad practice.

[32]The Claimant's claim in the present action was quite tricky to evaluate. He was employed by the defendants for about three years in the task of undertaking the full time nursing care of their 28-year old son who had suffered from cerebral palsy from birth. The claimant began to feel pain in his thoracic spine at about the end of August 1996. This turned into an intense aching pain about 7 months later. For the rest of the time he did this job he claims that he was aware of this pain almost from the time his daily shift began. He found work increasingly difficult, and he eventually stopped work altogether when the pain became intolerable.

[33]Dr Brendan Smith's medical report discussed a number of possible causes of the thoracic facet joint and costovertebral joint arthropathy from which the claimant was suffering at the T8/9 and T9/10 level. Radiotherapy in this area as an infant, a bicycle accident in about 1989 and the excision in 1996 of a basal cell carcinoma from an area just below the left shoulder blade were all canvassed as possible causes. Dr Smith, however, said that he felt that it was inescapable that the most likely cause of the claimant's problems was founded in the repeated lifting episodes throughout 1996 and the early part of 1997.

[34]We do not know the terms in which Mr Trevett reported in November 1999. We do not know why Mr Carlson's solicitors did not then instruct Mr Reynolds , the other identified expert acceptable to the defendants. We do not know why they then unilaterally instructed Dr Brendan Smith outside the umbrella of the protocol. In a letter dated 8th June 2000 they said that "of course the protocol is designed for fast track cases" as if this excused their conduct. This attitude is inconsistent with the Notes of Guidance to the Protocol. While acknowledging that the protocol was primarily designed for fast track cases, the Notes continue (at para 2.4):

"However, the 'cards on the table' approach advocated by the protocol is equally appropriate to some higher value claims. The spirit, if not the letter of the protocol, should still be followed for multi-track type claims. In accordance with the sense of the civil justice reforms, the court will expect to see the spirit of reasonable pre-action behaviour applied in all cases, regardless of the existence of a specific protocol."

[35]It is not difficult to understand why this should be so. In a fast track case, the employment of a medical expert on each side, with all the ensuing disadvantages in time and cost that this entails, must be avoided wherever possible for the reasons clearly set out in paragraph 3 of these Notes. But even in "multi-track type claims" the overriding aim is still to achieve a settlement, wherever possible, in an economic and cost-effective manner. This is more likely to be attainable if a claimant's solicitor instructs an expert known to be acceptable to the other side. If he does not, the settlement of his client's claim may be unnecessarily delayed - in Walsh v Misseldine (CAT 29 February 2000) 18 months were taken up while each side instructed its own expert in turn - and in addition to having to wait that much longer for settlement, the solicitor's client may lose his entitlement to interest for a significant part of this period. There may also be adverse costs consequences which will reduce the net value of any sum the claimant recovers in the action.

[36]I have set out these matters at some length because it appeared to me that the submissions we received from Mr O'Brien QC revealed a number of misunderstandings about the purpose and effect of the protocol in a case like this. It was not its aim to deprive a claimant of the opportunity to obtain confidential pre-action advice about the viability of his claim, which he would be at liberty to discard undisclosed if he did not agree with it. There is no hint in the protocol that its authors intended the parties' solicitors to instruct the acceptable expert on a joint basis. Indeed, paragraph 3.16 makes it clear that the first party will instruct the expert, and paragraph 3.20 provides that he will usually pay the expert's fees: no doubt, the parties could make some different agreement about the fees. If the expert advises his client that he has no claim, and the client accepts this advice, not even Mr O'Brien suggested that the advice should be disclosed to the other side, as would inevitably follow if the expert was jointly instructed.

[37]In these circumstances I agree completely with the judgments of Simon Brown LJ, and of Judge Geddes in the court below, about the proper interpretation of what happened in the present case.

[38]I, too, would dismiss this appeal.

LORD JUSTICE MANCE:

[39]I agree with both judgments.

ORDER

Appeal dismissed with costs, on a public funding assessment of the respondent's costs. (Order does not form part of approved Judgment)