Factual and Procedural Background
This opinion concerns an appeal by the Plaintiff against a case management order made by Master Ungley on 12 February 2003 in a clinical negligence action. The order limited the evidence to a report from no more than one expert obstetrician per side. The Plaintiff sought to instruct two expert obstetricians, arguing that the Defendants would have three consultant obstetricians giving evidence, including two witnesses of fact who are also consultants. The clinical negligence claim arises from the Plaintiff's birth at The Hospital on 24 November 1994, resulting in cerebral palsy attributed to alleged negligent care during labour and delivery. The Plaintiff contends that the Defendants’ care fell below the required standard, particularly concerning the management of an abnormal fetal position, delayed transfer to the operating theatre, and persistence with instrumental delivery despite fetal distress. The Defendants accept some factual matters but dispute negligence, relying on evidence including that of two consultant obstetricians who were involved in the care. The appeal challenges the limitation on expert evidence to one expert per side in the field of obstetrics.
Legal Issues Presented
- Whether the court should permit the Plaintiff to instruct and call two expert obstetricians in a clinical negligence case, despite the general rule limiting expert evidence to one expert per party per speciality under CPR Part 35.
- How the court should balance the overriding objective of CPR 1.1, including considerations of proportionality, equality of arms, and the complexity and importance of the case, in deciding whether more than one expert is reasonably required.
- The extent to which evidence given by medical witnesses of fact who are also consultants should be treated as expert evidence for purposes of determining the appropriate number of experts.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff argued that a single expert obstetrician might not adequately represent the range of professional opinion on the complex clinical issues involved.
- There is a risk that the Plaintiff’s sole expert could be perceived as having an overly academic or isolated view compared to the Defendants’ three consultant obstetricians.
- Because two of the Defendants’ consultants will give evidence as witnesses of fact but inevitably provide expert opinion on their conduct, the Plaintiff should be allowed two experts to maintain equality of arms.
- The additional cost and trial time from a second expert would be proportionate given the case’s high value, complexity, and importance.
- The overriding objective in CPR 1.1 supports allowing two experts to ensure the court hears all relevant expert views necessary to do justice.
Respondent's Arguments
- The Defendants contended that only one expert is necessary and that the evidence of Dr Downes, a consultant, constitutes their expert evidence, with Mr Krishnamurthy as a factual witness.
- They argued that if the Plaintiff is allowed two experts, the Defendants should also be allowed two independent experts to maintain fairness.
- The Defendants maintained that the order limiting experts to one per party was appropriate to control costs and avoid multiplicity of expert evidence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Bolam Test |
Standard for professional negligence: whether defendant acted in accordance with a responsible body of medical opinion |
Central to determining whether the Defendant doctors’ clinical judgments fell below the required standard; the court considered the necessity of expert evidence to apply this test effectively. |
| CPR Part 35 (Expert Evidence Rules) |
Limits expert evidence to what is reasonably required; requires court permission to call experts; allows court to limit fees and number of experts |
The court applied these procedural rules to assess whether more than one expert obstetrician per party was justified in this case. |
| CPR 1.1 (Overriding Objective) |
Ensures cases are dealt with justly and proportionately, balancing equality of arms, cost, complexity, and importance |
The court used the overriding objective to guide its discretion, emphasizing equality of arms and proportionality given the case’s complexity and value. |
| Lord Woolf’s Final Report on Access to Justice (1996) |
Advocates limiting expert evidence to one expert per speciality unless more are necessary for a real purpose |
Quoted to support the general rule limiting experts, but also to highlight the need for flexibility in exceptional cases such as this. |
| Queen’s Bench Guide (Paragraph 7.9.5) |
Recognizes exceptions to the one expert rule in professional negligence cases where differing expert opinions assist the court |
Supported the court’s recognition that multiple experts may be justified to reflect a range of professional opinions in complex negligence litigation. |
Court's Reasoning and Analysis
The court began by emphasizing the governing rule under CPR Part 35 that expert evidence must be limited to what is reasonably required to resolve the issues. However, the court rejected a mechanistic application of the single-expert rule, recognizing that the question is fact-sensitive and must be informed by the overriding objective in CPR 1.1.
The court noted the complexity, importance, and high monetary value of the case, as well as the serious lifelong injury alleged. It acknowledged that the Defendants’ evidence included three consultant obstetricians: two giving factual evidence but inevitably providing expert opinion, and one independent expert. This created a significant imbalance if the Plaintiff were limited to one expert obstetrician.
The court found that the distinction between witnesses of fact who are also professionals and expert witnesses is important but cannot obscure the reality that the Defendants’ factual witnesses will give expert opinion by virtue of their experience and status. Consequently, the Plaintiff’s single expert might be unfairly disadvantaged, potentially undermining equality of arms.
Balancing proportionality, the court concluded that the additional cost and trial time from permitting a second expert for the Plaintiff were reasonable and justified by the need to achieve justice. The court stressed that this flexibility is exceptional and case-specific, not a general rule.
Therefore, the court exercised its discretion to vary the order, allowing the Plaintiff to call two expert obstetricians. It left open the question of whether the Defendants might later be permitted additional experts.
Holding and Implications
The court ALLOWED THE APPEAL and directed that the Plaintiff be permitted to call two expert obstetricians, varying the previous order restricting expert evidence.
The decision ensures procedural fairness and equality of arms by addressing the imbalance created by the Defendants’ multiple consultant witnesses who will give expert opinion evidence. The ruling acknowledges the importance of proportionality and case-specific discretion under the Civil Procedure Rules.
No new general precedent was established; rather, the judgment clarifies that while the general rule limits parties to one expert per speciality, courts must exercise discretion flexibly in exceptional cases to do justice.