APPEALS AGAINST DECISION TO ALLOW EXPERT EVIDENCE: DEFENDANTS TOLD TO GET ON THEIR BIKE

Appeals against orders granting permission for parties to call expert witnesses are rare. It is worthwhile, therefore, reading the judgment of Mr Justice Green in Allen -v- Cornwall Council [2015] EWCA Civ 1461 (QB) with some care.

THE CASE

The claimant was injured in a cycling accident and brought an action against the defendant in relation to the state of the road.  The District Judge had granted the claimant permission to rely upon a report of a cycling expert. The defendant appealed that decision that the claimant be allowed an expert.

KEY POINTS

  • This was not the usual road traffic case and the District Judge had exercised his discretion in a way that could not be properly overruled on appeal.
  • It is prudent for a party proposing an expert to give a precis of the evidence the expert will cover.
  • If a report is available it is most probably appropriate for the report to be disclosed rather than the parties argue issues in the abstract.
 THE JUDGMENT
  1. There is before the Court an application for permission to appeal (and if granted the substantive appeal) against an Order of District Judge Khan made on 28th January 2015 in which the Judge permitted the Claimant to adduce expert evidence from a Mr J Franklin in the discipline of “cycling skills and safety”.
  2. The situation which has arisen upon this appeal is somewhat unusual. The actual report of Mr Franklin has been prepared and served upon the Defendant in accordance with the Judge’s Order. However, it was served in a brown paper envelope upon condition that the Defendant did not review the report pending this application. Accordingly, the Defendant has been required to advance this application without having seen the expert report in question and, therefore, upon somewhat hypothetical points of principle only, which are to the effect that the Judge erred in granting permission to adduce the report upon the basis that he took account of irrelevant considerations but, equally, ignored relevant considerations.
  3. In particular, the Grounds of Appeal are couched in the following way:

“(1) The learned district judge was wrong to give the Claimant permission to call expert evidence on the issue of what would amount to the exercise of reasonable care by a cyclist on the road where the accident occurred because such evidence is not reasonably required to resolve the proceedings. In particular:

a. The standard of care to be expected of a road user, whether a car driver, a pedestrian or a cyclist, is a matter for the court, not expert evidence; and/or

b. Expert evidence on the issue would be inadmissible and/or unnecessary.

(2) Alternatively, the learned district judge was wrong to give permission for evidence of this nature without first requiring the Claimant to produce it so that he could be properly satisfied it was both admissible and reasonably required to resolve the proceedings;

(3) Alternatively, having granted the Claimant permission to call evidence of this nature, the learned district judge ought to have granted such permission to both parties. His failure to do was wrong because it failed to ensure that the parties were on equal footing in a claim which is of high value”.

B. Summary of relevant facts
  1. The facts may be summarised shortly. The Claimant was a cyclist who was injured whilst cycling on a downhill section of Mill Hill, Lelant Downs, Cornwall. The Defendant is, and was at all relevant times, the Highway Authority in relation to that road. At approximately 3.45pm on 27th August 2010 the Claimant was lawfully cycling on the downhill section of Mill Hill just prior to the Water Mill Inn Pub Restaurant (“the Restaurant”) when his bicycle came into contact with the verge which encroached into the carriageway causing the Claimant to lose control and for the bicycle to stop suddenly. The consequence was that the Claimant was thrown over the handlebars and he fell sustaining severe injuries.
  2. Mill Hill is an unclassified highway which descended, in the Claimant’s direction of travel, at a relatively steep gradient of between 8% and 14% towards a dip in the road by the Restaurant. There are photographs of the relevant stretch of road before the Court and I have reviewed these. The road is subject to the National Speed Limit for unlit single carriageways, namely 60mph. It is a designated and signed tourist route in and out of St Ives. It is a busy road not least because it is the preferred and signed route for HGVs and coaches going into and from St Ives. The verge to the Claimant’s nearside, situated just before the Restaurant and towards the bottom of the dip in the road, encroaches into the carriageway thereby reducing the width of the nearside lane road. The point at which the verge encroaches is also the site of an ancient Cornish hedge stonewall and drain (“the Cornish hedge”).
  3. Shortly before the location of the accident, the nearside of the carriageway narrows with the Cornish hedge encroaching into the carriageway thereby removing any intervening verge. The Claimants aver that at this point the “safe line of travel was difficult to anticipate and distinguish“. It is pleaded that this was exacerbated by the presence of debris and degraded tarmacadam coupled with vegetation and soft earth. It is also claimed that visibility for road users descending the hill was substantially reduced in the prevailing circumstances at the time of the accident by reason of strong sunlight and full foliage which caused a deep shadow over the location.
C. The claim
  1. The Claimant’s case is that he was lawfully riding down the slope of Mill Hill with a motor vehicle behind him and that there was traffic approaching in the opposite direction which thereby reduced the overall available road space. He claims that he was riding appropriately close to the nearside edge of the carriageway in order to give motor vehicle users the maximum available space to overtake if they so chose. He claims that having come into contact with the verge where it encroached into the width of the carriageway he lost control of the bicycle which stopped suddenly throwing him over the handlebars.
  2. He alleges that the Claimant’s accident was caused by the Defendant’s breach of statutory duty, nuisance or alternatively the negligence of the Defendant’s employees or agents. Particulars are provided in the Particulars of Claim but, in essence, allege a failure to maintain or repair Mill Hill and, in particular, at the point in the road where the verge encroaches into the width of the carriageway with the consequence that the condition of the road was dangerous contrary to section 41 of the Highways Act 1980 Further, the Defendant caused or permitted the road to be or become or to remain a danger or a trap to persons lawfully using the same and that they failed to take any or any adequate or timely measures to warn persons such as the Claimant of the danger caused by the sudden narrowing of the nearside lane by the encroaching verge. In addition the Defendant failed to place proper warnings or markings on the road and failed to institute or enforce adequate systems of inspection or maintenance. Generally it is alleged that the Defendant failed to take account of concerns about safety caused due to visibility in all weather conditions, but in particular summer months where bright sunlight and deep shadows could restrict visibility of the verge to cyclists.
  3. In its defence, the Council pleads, inter alia, contributory negligence and it is this which has given rise to the desire on the part of the Claimant to adduce expert evidence in relation to cycling safety. Paragraph 8(f)-(h) set out a number of particulars of alleged contributory negligence:

“(f) If he could not see because of bright sunlight or deep shadow, then failed to adjust his speed accordingly and/or dismount;

(g) Cycled too fast for the conditions, which on his own case involved poor visibility due to a combination of sunlight and shade;

(h) Cycled too close to the edge of the metalled carriageway”.

D. The Judgment below
  1. During the case management conference on 28th January 2015 the Judge heard argument upon the issue of the admissibility of experts. In particular, the Claimant contended that in view of the Defendant’s averment of contributory negligence based upon a failure to adjust the Claimant’s speed and cycling too close to the verge, the Claimant wished to call upon the services of an acknowledged expert, Mr Franklin, who had considerable expertise in cycling safety, and indeed was an advisor to the Government upon such issues. The Defendant, in opposition, contended that Mr Franklin’s skills did not amount to expert evidence as that term was properly understood in the law; but in any event, it was not relevant to the pleaded issues because the trial Judge would be able to form his or her own view as to the allegations of contributory negligence and would not be assisted by expert opinion.
  2. In response the Claimant submitted that a typical High Court Judge did not ordinarily have experience in cycling, or at least in non-urban cycling, so that what was or was not reasonable would not be a matter upon which the Court would have particular expertise and that the Court would hence benefit from such expert opinion.
  3. The gist of the reasoning of the Judge was that he was satisfied that the expert evidence met the test in CPR 35.1. This provides: “Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings“. The text in the White Book (2015) makes plain that the purpose of CPR 35.1 is to enable Courts to control the use of expert evidence to “bolster” cases. Authority makes clear that where the evidence in issue is “factual or obvious” then Courts are unlikely to be prepared to permit expert evidence to be adduced.
  4. The Judge in the present case, as is apparent from the transcript which records his very short reasons for acceding to the Claimant’s application, was sympathetic to the application. He said as follows:

“Can I tell you what goes through my mind, and that is this, that I will hear whatever else you have to say, Mr Willems makes out a powerful case for this expert, Mr Franklin, and I think you should be given permission. I think it would be disproportionate to give you permission and not further the overriding objective at this stage for a number of reasons. Firstly, I’d borrow some of the submissions that you make. So far, the Court does not need it, but it may be when you see Mr Franklin’s report, there is no hint here, you may want to abandon what you say at (f), (g) and (h) and maybe at (i), (j) and (k) and if you do then you do not need an expert, but if you do then you can come back and ask me for one”.

  1. There then followed a short interchange between the Judge and Counsel for the Defendant. The Judge then stated this:

“But expert evidence is evidence that is reasonably required and what is reasonably required is triggered by the issues in the statement of case and you may read Mr Franklin’s report and may think to yourselves, well, on the facts those allegations of contributory negligence really cannot be made out, when looked at against what Mr Franklin says and what the other witnesses say, so maybe we do not need an expert and maybe we will make some concessions”.

  1. Thereafter the Judge, assisted by Counsel, moved on to the issue of other experts, and in particular highways engineers.
  2. It is important not to read the Judge’s reasoning, given concisely and in an extemporary manner, in an overly technical way. The Judges conclusion, in essence, was that Mr Franklin was a legitimate expert, that the discipline upon which he was instructed to express an opinion was properly one which could be described as “expert”, and that his evidence might be of assistance to the Judge in the sense that it might be reasonably required to resolve the proceedings.
E. Discussion: The admissibility of the expert evidence
  1. The starting point for my consideration is to recognise two features of the decision taken by the Judge.
  2. First, it is important to acknowledge the provisional nature of the Judge’s conclusion. It is relevant that a decision to permit expert evidence is usually one taken considerably prior to trial. It will, moreover, usually be a decision in principle since the Judge will not have before the Court the actual evidence that is sought to be adduced. The decision is thus not one which can or will bind the trial judge, who having seen the expert evidence, might be wholly unimpressed with it and reject is as inappropriate as expert evidence and/or as not helpful. But that will be a judgment formed in the light of the evidence at trial and with the Judge having had the advantage of seeing the expert opinion itself. It must follow that when, in the present case, the Judge ruled in favour of the admission of the evidence he was not, upon any definitive basis, ruling that the evidence was necessarily relevant to the task which the trial Judge would confront. The Judge took into account the acceptance expressly made by Mr Willems QC for the Claimant, and recorded in the transcript of the hearing below, that the trial Judge might, having seen the report, conclude that it did not add anything or much to the trial in which case the Claimant would take the “costs risk”. The Judge was therefore addressing a threshold issue which was, for the purpose of case management, whether the evidence should be admitted but that this was without prejudice to any more mature and considered view which a trial Judge might subsequently take.
  3. Secondly, it is also relevant that the Judge adopted a staged approach to the question of expert evidence. The Judge was of the view that, even if he granted the Claimant permission to adduce the expert report, there was no benefit in granting the Defendant permission, at that stage, to adduce responsive evidence since the Defendant, having reviewed the report of Mr Franklin, might decide to abandon allegations of contributory negligence. In such a case there would be no need for the Defendant to instruct their own expert. However, if, having seen the Claimant’s expert opinion, they persisted in their averment of contributory negligence they were then entitled to return to Court and apply for permission to adduce a responsive expert.
  4. This application is for permission to appeal. I am not taking de novo the case management decision that has already been taken by the Judge. My task is limited to assessing the lawfulness of the Judge’s ruling. These two features or considerations are relevant context to the position that I must adopt towards the application.
  5. Mr Miller QC, who appeared for the Defendant, submitted that the Judge erred in concluding that this was a case requiring expert evidence. He submitted that the standards to be expected of road users, whether drivers, pedestrians or cyclists were matters for the Court. They do not require technical or scientific analysis beyond an application of the Highway Code. Courts routinely determine issues of liability and contributory negligence in cases involving road users, including cyclists upon a weekly if not daily basis and the type of evidence which the Claimant proposed to call from Mr Franklin was neither admissible nor necessary. He also drew my attention to the reasoning of the Judge to the effect that High Court Judges were not cycling experts, and in particular were inexpert in cycling matters away from urban areas. He submitted that this was (even assuming it to be true) an irrelevant consideration. It was submitted in the alternative that given the novelty of this type of evidence and the fact that the use of expert evidence in road traffic cases was exceptional, that the Judge erred and ought not to have reached the view that such evidence was reasonably necessary without first requiring the Claimant to produce the report so that its admissibility and relevance could be properly tested and demonstrated. Finally, he contended that the refusal to grant permission to the Defendant to adduce responsive evidence was unfair and a breach of the principle of equality of arms.
  6. Mr Miller QC cited, in support of his arguments, the well known judgment of the Court of Appeal in Liddel v Middleton [1996] PIQR P36. In that case the Court was concerned with a traditional road traffic accident in which a pedestrian was injured by a moving car. A question arose as to the admissibility of an expert. Lord Justice Stuart-Smith stated of the test of admissibility then laid down in the Civil Evidence Act 1972:

“But that section in no way extends the principles upon which expert evidence is admissible. An expert is only qualified to give expert evidence on a relevant matter, if his knowledge and expertise relate to a matter which is outside the knowledge and experience of a layman. In the reference to an “issue in the proceedings in question” relates to a factual issue and not to the conclusion of law based upon such fact”.

(ibid., P41)

  1. Later, Stuart-Smith LJ identified categories of case where expert evidence was both necessary and desirable in road traffic cases including: those where there are no witnesses capable of describing what happened, those where deductions may have to be made from circumstantial evidence or from the position of vehicles after the accident, marks on the road or damage to vehicles, the speed of a vehicle, or the relevant positions of the parties in the moments leading up to the impact. The Judge then proceeded to lay down the limits of expert evidence:

“In such cases the function of the expert is to furnish the Judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the Judge to interpret the factual evidence of the marks on the road, the damage or whatever it may be. What he is not entitled to do is to say in effect “I have considered the statements and special evidence of the eyewitnesses in this case and I conclude from their evidence that the defendant was going at a certain speed, or that he could have seen the plaintiff at a certain point”. These are facts for the trial Judge to find based on the evidence that he accepts and such inferences as he draws from the primary facts found. Still less is the expert entitled to say that in his opinion the defendant should have sounded his horn, seen the plaintiff before he did or taken avoiding action and that in taking some action or failing to take some other action, a party was guilty of negligence. These are matters for the Court, on which the expert’s opinion is wholly irrelevant and therefore inadmissible”.

(ibid P42, P43)

  1. In that same case the Court emphasised that trial in this jurisdiction was by Judge not expert and that there was a regrettable tendency in personal injury cases involving road traffic and industrial accidents for the parties to enlist the services of experts whether necessary or not. The Judge observed that this simply added to the already high cost of litigation and the length of trials.
  2. The observations of Lord Justice Stuart-Smith are as apposite in 2015 as they were in 1995. Indeed, Lord Justice Gibson specifically endorsed these observations as did Lord Justice Hutchinson. Both were emphatic in their condemnation of the growing use and non-medical cases of the instruction of experts “where no help was really needed” (ibid., P44 per Gibson LJ).
  3. In my view none of this is or should be controversial. Indeed, as already observed the basis of CPR 35.1 is to enable the Court at an early stage to adopt a hands-on and rigorous approach to the control of expert evidence.
  4. Mr Willems QC, for the Claimant, does not, in any material way, dispute the correctness of the above propositions. He submits simply and pithily that it is simply inappropriate for me to re-consider the merits of the Judge’s decision because his order, quintessentially, was a classic case management decision falling squarely within his discretion, based upon the above principles. He referred me to two illustrations of judgments of the Court of Appeal making the point that appellate Courts do not, save in narrow well defined circumstances, interfere: See Re U(children) [2015] EWCA per King LJ at paragraphs [32], [33]; and per Arden LJ in Wallbrook Trustee (Jersey) Limited v Fattal [2008] EWCA Civ 427. These emphasise that appellate Courts should not interfere with case management decisions by a Judge who had applied the correct principles and who had taken into account matters which should be taken into account and left out of account matters which were irrelevant unless the Court was satisfied that the decision was so plainly wrong that it had to be regarded as outside the “generous” ambit of the discretion entrusted to the Judge (cfper Arden LJ in Wallbrook at paragraph [33]).
  5. In my judgment the Judge, in the present case, in admitting the evidence of Mr Franklin was squarely within the confines of his legitimate discretion. This is for the following reasons.
  6. First, he has had carriage of the case management of this case throughout and had a far better all round view of the case than is available to this Court on this short appeal.
  7. Secondly, the Judge did no more than answer the threshold issue about admissibility. His decision will not bind a trial Judge. If that Judge concludes that the evidence was not truly that of an expert or not relevant, having heard a far greater volume of evidence than did the Judge below, then I would expect the trial Judge to say so and make the Claimant bear the costs of the exercise. I take into account the peculiar circumstance that has arisen in this case, namely that the Defendant has not seen the actual report of Mr Franklin, and nor has this Court. Accordingly, neither the Defendant nor this Court is able to assess the content of the report against any proper standard of expertise and relevance. In upholding the judgement of the Judge below I bear in mind the cautionary remarks of Lord Justice Stuart-Smith in Liddel (above) about the risk of a waste of time and expense and the need not to encourage the use of experts in road traffic cases as a matter of routine for issues that may fall within the province of the Court. Nonetheless, the facts of the case are somewhat unusual. They do not involve a typical road traffic accident involving a collision of a pedestrian or cyclist with another motor vehicle. In the course of the application before me, Mr Willems QC drew my attention to the submissions that he made in front of the Judge to the effect that the expert would be of assistance to the Judge in expressing an opinion as to whether the allegations of contributory negligence were realistic and fell within the confines of what might be expected in the context of the Highway Code. It was pointed out that nothing in that Code indicated upon which part of the road a cyclist ought to cycle or whether he should dismount in the circumstances which prevailed. The issue before me is not whether I would have adopted the same decision as the Judge; but only whether he acted outside of his case management discretion, which he did not.
  8. Thirdly, the Defendant’s second argument is that the Judge ought not to have allowed the application without the report first being prepared and produced. It is said that there are substantial costs consequence in adopting the approach that he did. I can see the practical force in this complaint. I can also see that an applicant for permission under CPR 35.1 might be well advised to have available to the Court a summary or provisional précis of the areas that the proposed expert is to be instructed to cover, and also the experts proposed instructions. This would at least enable a judge to gain some more specific idea of what the proposed evidence would entail. But this was not done in the present case and the Judge, doing the best that he could, formed a view as to possible relevance without that assistance and ruled accordingly. However, the Defendant’s complaint is no more than an invitation to me to re-exercise a discretion which the Judge exercised against him. Another Judge might well have adopted Mr Miller’s sensible suggestion and adjourned so that further information about the proposed expert could be placed before the Court. But I cannot conclude that the Judge erred in principle in not adopting this approach; his decision not to do so does not mean that he erred in adopting a different course. He plainly had well in mind the costs implications having, implicitly, accepted the submission of the Claimant that if it turned out at trial that the evidence was of no or no real value then the trial Judge could impose a costs sanction upon the Claimant.
  9. Fourthly, with regard to the submission alleging inequality of arms, this is not, in my view, sustainable. The Judge made plain that his Order did not preclude the Defendant from making his own application later having had, first, sight of Mr Franklin’s report. He adopted no more than a staged approach thereby creating a possibility that the scope of the issues might be reduced and costs saved. This was entirely sensible and was in any event a matter falling squarely within his discretion and the Defendant was not, in any realistic sense, prejudiced by this.
  10. I would add one final point which does not bear upon the reasons for refusing the application. Although I understand the reasons why the Claimant declined to permit the Defendant to open the envelope and see the experts report prior to this hearing, it would in my view have been far better if the report had been before the Court and available to the Defendant. Part of the logic of the Judges reasoning below was that the Defendant should have sight of the report before deciding whether to seek its own expert report. Had the Defendant seen the report it is conceivable that this appeal might therefore never have occurred. Whilst making the report openly available might have affected the way in which argument developed it would in my view have been a more realistic and proportionate way for the matter to be addressed.
  11. At the conclusion of the application I gave the result with reasons to follow and took this point into account when making the order that the costs of the application were to be reserved to the trial judge rather than to be made in favour of the Claimant in any event.
F. Conclusion
  1. For these reasons, and despite the persuasive submissions of Mr Miller QC for the Defendant, I reject the application. It seems to me that the proper course to adopt is to refuse permission to appeal, notwithstanding that had I granted permission I would have dealt with this matter in exactly the same way as I have above.

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