REVISITING WHITEHOUSE -v- JORDAN 2: ON THE LAWYERS DRAFTING THE EXPERTS’ REPORTS

The first post in this series on the judgments in Whitehouse -v- Jordan in the Court of Appeal and House of Lords  looked at the point that, at the appeal stage, the courts were only concerned with whether they could overturn findings of fact.  These were not appeals about the law of clinical negligence. These decisions also contain  some important observations in relation to the role of the expert witness and preparation of the report.

THE PLAINTIFF’S EXPERT EVIDENCE

In the Court of Appeal Lord Denning M.R. commented on the change of mind of the plaintiff’s experts, coupled with the unusual way in which a crucial medical report had been prepared with the involvement of counsel.

“In addition I may say that Professor Sir John Stallworthy (Oxford, now retired) at first made a report saying that Mr Jordan was not negligent. He said that he had dealt with the case ‘with courage and skill’. But afterwards Sir John Stallworthy joined with Sir John Peel (also Oxford, retired) in holding that Mr Jordan was negligent. Their joint report was the justification for the continuance of this action to trial. But their joint report has been subjected to severe criticism and has been shown to be mistaken on some very important points.

In the first place, their joint report suffers to my mind from the way it was prepared. It was the result of long conferences between the two professors and counsel in London and it was actually ‘settled’ by counsel. In short, it wears the colour of special pleading rather than an impartial report. Whenever counsel ‘settle’ a document, we know how it goes. ‘We had better put this in’, ‘We had better leave this out’, and so forth. A striking instance is the way in which Professor Tizard’s report was ‘doctored’. The lawyers blacked out a couple of lines in which he agreed with Professor Strang that there was no negligence.

There is also evidence of serious mistakes in the joint report itself. The two professors said that the baby’s head was ‘not engaged’, whereas the hospital notes made it clear that those on the spot had found that it was ‘engaged’. And the judge so found.

The two professors also said that the pulling was so hard that Mrs Whitehouse was ‘lifted from the bed’ which they explained as meaning that she was pulled down off the bed and lifted back on to it again. That was contrary to all the evidence in the case, including that of Mrs Whitehouse herself. The two professors did not have the benefit of the evidence of Dr Skinner. He said that nothing of the kind took place.

The two professors also criticised the hospital for not having made a pelvic assessment: without paying sufficient regard to the fact that Mrs Whitehouse was so tense that it could not be done: and she refused an X-ray.

The defects in the joint report of the two professors are so great that, to my mind, it cannot stand up against the reports of the other distinguished men in the case.”

 

COMMENTS IN THE HOUSE OF LORDS

Lord Wilberforce also expressed his concerns about the nature of the expert evidence.

“One final word. I have to say that I feel some concern as to the manner in which part of the expert evidence called for the plaintiff came to be organised. This matter was discussed in the Court of Appeal and commented on by Lord Denning MR. While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.”

AND THE RELEVANCE OF THIS TODAY IS?

It is doubtful whether, today, any lawyer would be so prescriptive and attempt to draft an expert’s report. However the problem of the interchange between the lawyer and the expert continues to be a difficult one. Earlier this year Mr Justice Garnham referred to this very passage from Lord Wilberforce in Cox -v- The Secretary of State for Health [2016] EWHC 924 (QB). An expert instructed by the claimant had a change of view.

  1. Mr Clements agreed in cross examination that there had been no reference to a failure to attempt vaginal breech extraction in an earlier report (an “advisory report”) he had produced for the Claimant’s solicitors. He agreed that the possibility of mounting such criticism had only occurred to him some time later when considering some different case. He said:
Discussing the case again, probably after a conference with Counsel, I revisited the question regarding breech extraction. The primary criticism was a lack of proper system dealing with it. Then, I realised, as a second twin, and a small baby it was not unreasonable to also allege that breech extraction was an option the doctor could have taken. I advised those instructing and they modified the Particulars of Claim accordingly.” (emphasis added)
  1. It was suggested to him that when he was first instructed he took the view that “vaginal breech extraction was not an option“. He said he had considered it, but:
was persuaded after some time that this was a secondary twin so breech extraction could be pleaded.
  1. Later he said:
When I say persuaded, I don’t mean someone pinned me against a wall, I mean that over a period of time I was persuaded, I persuaded myself, I came to the view that it was not unreasonable to consider vaginal breech extraction.” (emphasis added).
  1. I confess that I am somewhat troubled by that evidence, and in particular by the account of Mr Clements being “persuaded” or “persuading himself”, his making value judgments about what would be the better case to plead and his including in a report for the court an opinion which he thought it would “not be unreasonable” to advance. In my judgment the role of the expert witness is to provide expert evidence on the issues he is asked to address, rather than to concern himself with the conduct of the litigation.
  2. I accept that there is here no evidence of any impropriety on the part of either counsel or solicitors for the Claimant in their contact with Mr Clements. I accept that it is perfectly proper for legal representatives to discuss with expert witnesses the contents of their reports. It is proper for a legal team to invite an expert to consider the evidence that has arisen and to reflect on the effect of that on his opinion. There is nothing to suggest anything beyond that was done here.
  3. The evidence presented to the court should be the independent opinion of the expert, uninfluenced by the course of the litigation. As Lord Wilberforce said in Whitehouse v Jordan [1981] 1 WLR 246, at 256:
While some degree of consultation between experts and legal advisers is entirely proper, it is necessary that expert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to formal content by the exigencies of litigation. To the extent that it is not, the evidence is likely to be not only incorrect but self defeating.
  1. On balance, I am satisfied that Mr Clements’ evidence on this topic stayed the right side of the line of what is acceptable in this regard. However the extent to which he saw himself as concerned with the conduct of litigation has led me to consider his evidence on this topic with particular care (see, on this subject, paragraphs 146 and following, in particular).

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