Do you know your CPR Part 35 Responsibilities?

Related Sector: Expert Witness

Mr Justice Ritchie’s judgment in the High Court case of CCC v Sheffield Teaching Hospitals NHS Foundation Trust provides invaluable insight into the critical mistakes that can be made by experts during their instruction. Whilst it highlights the actions of experts in four core areas, the principles apply to all experts, regardless of their specialism.

Read our summary below for the salient points of this case.

Background

The claimant, a young girl aged 8 years and 4 months who was seriously injured at birth, sued the defendant for damages for negligence resulting in her suffering cerebral palsy. Liability was admitted and the trial took place in June 2023. The issues before the court related to the various substantial heads of loss within the quantification of the claimant’s claim. Mr Justice Ritchie heard evidence from several lay witnesses and several expert witnesses during the course of the 9-day trial,. These included paediatric neurologists, care experts, equipment and occupational therapy experts and physiotherapy experts.

Expert witness evidence

Paediatric neurologists

In his assessment of the evidence, Mr Justice Ritchie compared the evidence of the claimant’s paediatric neurologist expert with the evidence of that of the defendant’s paediatric neurologist expert.

He found the claimant’s expert to be “a helpful, balanced and persuasive witness” who was “consistent in his approach and thoughtful under cross-examination”.

In contrast, he could not say the same of the defendant’s expert, stating:

• He did not put a proper part 35 statement on his reports.
• He extracted one medical record adverse to the claimant’s case and elevated it out of all proportion in the joint report.
• He displayed no desire to understand the difference between the burden of proof on the balance of probabilities and the medical requirement in the publication of research for the conclusions to be to a scientific standard.

Overall, he found the approach of the defendant’s expert to be “unusual” – particularly in “failing to set out the range of opinions in his report and therefore ignoring the clear duties laid upon experts when reporting objectively for the court, not for one party”.

Care experts

In his assessment of the evidence, Mr Justice Ritchie compared the evidence of the claimant’s care expert with the evidence of the defendant’s care expert.

He found the claimant’s substantial experience in case management and in the construction, implementation and management of care packages for cerebral palsy children to be ‘’impressive’’. He also stated that ‘’her reports were clear and succinct, and her figures were based on real experience in the field’’.

Again, in contrast, he was extremely critical of the defendant’s expert, stating:

• That his evidence was ‘flimsy and unimpressive’.
• That he was ‘’not an expert in constructing, designing and managing care packages for children with cerebral palsy’’ and ‘’did not have case management qualifications or experience’’. Therefore, he was acting in breach of his ‘’CPR Part 35 responsibilities by holding himself out to be an expert on maximum severity care packages or the costing thereof’’.

Occupational therapy (OT) expert evidence

In his assessment of the evidence, Mr Justice Ritchie compared the evidence of the claimant’s OT expert with the evidence of the defendant’s OT expert. Please note that the defendant’s OT expert was also the defendant’s care expert referred to above.

He found the claimant’s expert to have ‘’considerable excellent qualifications and experience’’ as an OT and that she gave evidence ‘’in a measured, calm, and balanced manger, conceding points where necessary’’.

In contrast, the judge found her counterpart’s approach to be ‘’superficial’’, stating: 

• He tended to take Internet research as the appropriate way forward instead of on the ground, actual experience with cerebral palsy children.
• He was not able to match the claimant’s careful and analytical approach.
• He admitted in evidence that some items that he put forwards were simply “the cheapest option” instead of the reasonable range for the Court.

Physiotherapy experts

In his assessment of the evidence, Mr Justice Ritchie compared the evidence of the claimant’s physiotherapy expert with the evidence of the defendant’s physiotherapy expert. He found the claimant’s expert’s experience of cerebral palsy children to be ‘’long and impressive’’ and stated that she was ‘’far more up-to-date’’ than the defendant’s expert who had stopped NHS practice with cerebral palsy children 18 years prior.

He was impressed by the depth of research into hydrotherapy carried out by the claimant – travelling worldwide and entering into discussions with experts abroad. In contrast, he found the defendant’s expert to be out of date, not well informed and unbalanced – specifically as she was not prepared to accept that hydrotherapy had any benefits other than being enjoyable.

Summary

The outcome of the above is that where the claimant’s and defendant’s experts disagreed or clashed, the judge disregarded the evidence of the defendant’s experts in reaching his conclusion. This highlights just how crucial expert evidence can be to a case – and therefore how important it is that experts are aware of the full remit of their instruction, and what responsibilities and duties are expected of them under Part 35 of the CPR.

This article was first published on 25th July 2023. 

Author: Meera Shah