Case No: B3/2011/2008
Neutral Citation Number: [2012] EWCA Civ 392
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(HIS HONOUR JUDGE CORRIE)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 14 March 2012

Before:

LORD JUSTICE WARD
LORD JUSTICE ELIAS
and
LORD JUSTICE LEWISON

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Between:

	GUNTRIP
	
Appellant	
	- and -		
	
CHENEY COACHES LTD	

Respondents	
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Ms Claire Toogood (instructed by Berrymans Lace Mawer) appeared on behalf of the Appellant.
Mr Maitland-Jones (instructed by Mellor Hargreaves) appeared on behalf of the Respondent.
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Judgment

Lord Justice Lewison:   

1.	Mr Guntrip was employed as a coach driver by Cheney Coaches.  In 2005, when he was in his early 60s, he began to suffer with knee pain.  After being assessed by his GP, he underwent a left knee replacement.  He was off work from December 2005 and went back to work in June 2006.

2.	On his return to work, he was allocated a coach to drive for morning and evening school runs.  It was a coach with a manual gear transmission, so Mr Guntrip had to use the clutch in order to change gear.  He said that operating the clutch caused him to suffer significant pain, swelling and discomfort in his left knee, as a result of which he had to give up driving the coach.  He says that Cheney Coaches were negligent and in breach of statutory duty in allocating him a coach with a manual rather than an automatic transmission; and in failing to carry out a proper risk assessment or take any other advice about whether Mr Guntrip should have been asked to drive a manually operated coach.

3.	Mr Guntrip did not issue proceedings until 29 May 2009, a few days before the expiry of the limitation period.  He attached to his Particulars of Claim a letter from Mr Shafighian, the surgeon who conducted the knee operation, but reserved the right to obtain a report from an orthopaedic surgeon.  In November of that year, Mr Guntrip obtained an expert report from Mr William Jackson and by an order dated 26 January 2010 he was given permission to rely on it.  Mr Jackson was specifically named in the order.
4.	Cheney Coaches were given permission to obtain a similar report to be filed and served by 12 May.  Their expert was Professor Briggs.  The two experts were directed to prepare a statement of the issues on which they agreed and disagreed, to be filed by 24 June 2010.  The trial window was fixed for a date between October 2010 and January 2011.

5.	Unfortunately, there was some slippage in the timetable.  Cheney Coaches were given an extension of time for filing of their expert report.  It was now to be filed by 8 October 2010.  This had knock-on effects on the rest of the timetable.  The experts' joint statement was put back to 29 October 2010 and the trial date was re-set for March 2011.

6.	In his report in November 2009, Mr Jackson noted that something had happened to cause Mr Guntrip's knee to deteriorate suddenly.  He said that it raised the suspicion of possible loosening or another surgically treatable cause.  He added, however:

"It is difficult to correlate being back at work as being the cause of his knee problem, as this may have occurred anyway at this stage.  However his return to work did seem to precipitate the start of his ongoing symptoms."

In a further letter of 5 February 2010, Mr Jackson said:

"As I have said in the report itself it is difficult to directly correlate the return to work as the cause of Mr Guntrip's ongoing symptoms and as you say on the balance of probabilities the symptoms [of which] the claimant complains I don’t think arose directly from his return to work.  The return to work however has seemed to precipitate the symptoms and may have brought the symptoms on sooner than might otherwise have occurred."

7.	It is fair to say that Mr Jackson's support for the case that Mr Guntrip's knee problems were caused by his return to work was at best lukewarm.  He did say that the return to work might have accelerated the symptoms, but to say that the return to work might have accelerated the symptoms is not saying that it probably did.  In any event, a claim of accelerated symptoms was not the pleaded case.  On 1 March 2011, the trial window was refixed for between 1 June 2011 and 30 September 2011. 

8.	Professor Briggs reported on 20 May 2010.  He said that he did not think that Mr Guntrip's symptoms could be attributed to his driving a coach with a manual clutch.  He thought there was a problem with the prosthesis itself and did not think that his occupation or the fact that he was driving a coach could be held to blame.

9.	The two experts met in November 2010 and produced a joint statement dated 9 November.  They agreed that:

"4.1 This work is work that somebody could routinely expect to return to with a well functioning unicompartmental replacement.  The stresses involved even with a stiff manual clutch should not pose a problem with a satisfactory replacement.  
...
6. There is a temporal relationship between the start of his symptoms and his return to work.  It is likely that these would have occurred anyway and were not caused by his return to work."

10.	Mr Guntrip's legal team recognised that if this joint statement stood his claim could not succeed, so they instructed another expert orthopaedic surgeon, Mr Banks, who produced his first report dated 20 January 2011.  He said:

"The question here is what has actually gone wrong with his knee.  Professor Murray clearly thinks there is sufficient evidence here to offer an exploration and I will certainly go along with that.  In the absence of infection the early loosening problems would seem to be the main issue here.  However, it is certainly not gross.  It is not evident on the films although I accept they are somewhat out of date.  

It could be argued that if this implant was going to come loose it would have done at some stage or other, however, subjecting it to this sort of insult transforms that possibility to a probability.  Clearly his employers do not appear to have appreciated this problem."

11.	Armed with that report, on 16 February 2011, Mr Guntrip applied for permission to rely on the expert evidence of Mr Banks in place of that of Mr Jackson.  Because Mr Jackson had been specifically named in the order as Mr Guntrip's expert, there is no doubt that the permission of the court was needed for that change.  Following Mr Banks' first report, Professor Murray did carry out an exploratory operation.  No loosening was found.  Instead, what he found was summarised by Mr Banks in his second report of 5 April.  Mr Banks said in that report:

"Turning to the operative notes by Professor Murray dated 02 March 2011 [he] commented that the components of the implant were noted to be secure.  The collateral ligament was slack.  The medial compartment of the knee could be opened 3-4mm.  He noted there was some overhang on the bearing.  Evidence of impingement.  Osteophytes required removal and once this had been done, full extension could be achieved.  A5 bearing was required to get stability."

12.	Thus the thesis which Mr Banks had advanced in his first report had been falsified by the subsequent exploratory operation carried out by Professor Murray.  Mr Banks commented in his second report:

"Professor Murray makes no comment as to why this situation has arisen.  On the assumption that Mr Guntrip was well for 6 months it would suggest that there had been some sinkage of at least the femoral component which had then stabilised causing the continuing problem.  As it was well fixed some 5 years down the line that seems to be a reasonable assumption."

He concluded:
 
"I think on balance here it would suggest that Mr Guntrip's problems start with the bus driving business that we have already discussed in my main report."
 
13.	Mr Guntrip's application came before District Judge Payne on 18 May 2011.  He refused it.  The points he made were essentially as follows:
1.  The claim was an old claim and was shortly to enter its third year.
2.  If Mr Guntrip were to be given permission to adduce the evidence of Mr Banks, there would have to be a further meeting between experts which would cause a significant delay likely to be longer than three months.
3. Significant extra costs would be involved.  Those costs would run into thousands of pounds in the context of a significant although not enormous claim.  If those costs were to be incurred, the overall costs burden would be disproportionate.
4.  The grant of the application would have a deleterious impact on the possibility of a fair trial.  Part of the defence turned on disputed questions of fact and memories would fade over time.
5.  There had already been delay.  The proceedings were issued almost at the end of the limitation period and Particulars of Claim were served almost at the end of a period prescribed for that.  Two trial windows had already been vacated.  Although he did not say so, allowing the application would necessarily mean that the third trial date could also not be held.
6. Mr Jackson had expressed his views tentatively in his disclosed report so that the agreed statement did not represent a complete change of mind.
7. Although Mr Guntrip would undoubtedly feel aggrieved that the application were refused, Cheney Coaches would be equally aggrieved if it were granted.
8.  Having considered carefully the content of the evidence to be given by Mr Banks, the District Judge took the view the value of his evidence would be small.

14.	Judge Charles Harris QC granted permission to appeal.  The appeal came before His Honour Judge Corrie who allowed the appeal.  With the permission of Dame Janet Smith, Cheney's Coaches appeal again.

15.	Whether to grant a party permission to adduce expert evidence, particularly where the application involves a change of expert, is a case management decision.  It is a discretionary decision entrusted by the rules to the first instance judge.  The discretion must, of course, be exercised judicially having regard to the overriding objective.  But the fact that the discretion was a discretion entrusted to District Judge Payne means, in my judgment, that the issue on this appeal is not whether Judge Corrie exercised his discretion correctly, but whether he was entitled to interfere with District Judge Payne's exercise of his discretion.

16.	CPR Part 35.4(1) makes it clear no party may call an expert or put in evidence an expert's report without the court's permission.  An expert's overriding duty is to help the court on matters within his expertise.  This duty overrides any obligation to the person who instructs or pays him: see CPR Part 35.5.

17.	Under CPR Part 35.12, the court may and usually will direct a discussion between experts.  The purpose of the discussion is to identify and discuss the expert issues and where possible reach agreed opinions on those issues.  In Stallwood v David [2006] EWHC 2600 (QB); [2007] 1 All ER 206, Teare J correctly pointed out in paragraph 17 of his judgment:

"Thus, the express purpose of a discussion between experts is to reach if possible an agreed opinion on the expert issues: see CPR 35.12(1)(b).  It necessarily follows that the rule contemplates that as a result of the discussion an expert may modify or change the opinion he had previously expressed in his report.  In the context of trial management that is a most desirable purpose because it will tend to reduce the duration and expense of the trial and encourage a settlement of the case.  Thus, the mere fact that an expert has changed or modified his opinion following an experts' meeting cannot by itself be a reason for permitting a party who is disappointed with the change or modification of opinion to adduce evidence from another expert.  It would not be possible in such circumstances to suggest that further expert evidence is reasonably required to resolve the proceedings: see CPR Part 35.1.”

The expert’s overriding duty applies not only to the preparation of an initial report, but also to the preparation and agreement of a joint statement with an expert advising an opposing party as well as, of course, to evidence given orally in court.  If at any time the expert can no longer support the case of the person who instructed him, it is his duty to say so.  Indeed, if the expert forms that view it is far better that he says so sooner rather than later before the litigation costs escalate.  It is partly because an expert's overriding duty is to the court that the court discourages expert shopping, particularly where a party has had a free choice of expert and has put forward an expert report as part of his case.  He must adduce good reason for changing expert. The mere fact that his chosen expert has modified or even changed his views is not enough.  The expert may have had good reason for changing his views.  He may have been confronted with additional evidence as in Singh v CJ O’Shea & Co Limited [2009] EWHC 1251 (QB).  His opposite number may have pointed out flaws in his initial report, especially in cases where reports have been exchanged rather than served sequentially.  It is not possible to lay down hard and fast rules.  Even if permission to change expert is refused, it is always open to a party to put to the other side's expert in cross-examination, if he is called, points raised by his new expert.

18.	What can be said, however, is that a judge hearing an application to change experts must exercise his discretion in accordance with the overriding objective.  This means that a court must deal with cases justly.  Justice involves justice to the defendant as well as justice to the claimant.  It also involves saving expense, dealing with the case proportionately and ensuring that it is dealt with expeditiously.  Necessarily, this means that decisions are fact sensitive and case specific.

19.	District Judge Payne considered all these aspects of the overriding objective.  Under the heading of “dealing with the case justly”, he considered the effect on both the claimant and the defendant.  He noted that Mr Jackson had only ever expressed a tentative view and that Mr Banks' opinion differed more in its nuances rather than in substance.  He took into account that Cheney's Coaches would have greater difficulty in dealing with the disputed issues of fact.  Under the heading of “saving expense”, he took into account the probability that substantial extra costs would have to be incurred.  He compared that with the amount in issue.  In other words, he considered proportionality.  He noted the delay that had already occurred and, most importantly, that the trial date could no longer be met.  These considerations were highly relevant to dealing with the case expeditiously.

20.	What flaw in the discretion in the exercise of District Judge Payne's discretion did Judge Corrie discern?  It seems to me that he thought there were three:
1. He took the view that, because Mr Guntrip's case would fail unless he were permitted to change their experts, this took the case outside the ambit of previous authority.
2. He took the view that District Judge Payne was wrong to say that witnesses' recollection of events might be less reliable after the lapse of time.
3. He took the view that District Judge Payne overstepped the ambit of his discretion by considering the content and value of Mr Banks' evidence.

21.	 So far as the first of these points is concerned, it is clear the District Judge was well aware of the consequences of his decision.  In my judgment, in his anxiety to do justice to Mr Guntrip, Judge Corrie overlooked justice to Cheney's Coaches.  It is part of justice that unfounded claims should fail just as much as that meritorious claims should succeed.  He also overlooked the significance of the overriding duty of an expert.  As I have said, if an expert changes his mind about the merits of a claim, the sooner he says so the better.  It is clear that, since District Judge Payne took into account the effect of the refusal of permission on Mr Guntrip, he did not ignore this material consideration.  The weight to be given to a material consideration is essentially a matter for the first instance judge.

22.	So far as the second point is concerned, this was a simple disagreement between an appellate court and a first instance court.  District Judge Payne was entitled to reach the conclusion that he did and the fact that Judge Corrie disagreed was not a flaw in the exercise of District Judge Payne's discretion.

23.	So far as the third point is concerned, Judge Corrie thought that District Judge Payne ought not even to have considered the cogency of the evidence.  Mr Maitland-Jones supported that conclusion by submitting that the only two questions that the District Judge should have considered were, first, whether Mr Banks was appropriately qualified and, second, whether his conclusions went to something material in issue in the case. I cannot agree.  Part of the evaluation of the effect on Mr Guntrip on a refusal of permission must involve the comparison of the difference between the old case and the new case that a party wishes to advance.  It is true that a judge considering this kind of application should not conduct a mini-trial on the papers, still less where that mini-trial would turn on questions of expert evidence.  But, in my judgment, the District Judge was entitled to take into account, as he did, the fact that Mr Banks' first report had been falsified by subsequent events and that the different cause of Mr Guntrip's problems (identified in the second report) was itself tentatively expressed and sparsely reasoned.

24.	Mr Maitland-Jones said that further reasons might be explained in further evidence or answers to questions put to Mr Banks.  But at a late stage in the proceedings, when this application was made, it seems to me that a party who wants to change an expert should put forward all the expert material on which he wishes to rely and not leave it to be elicited by further questioning.

25.	 In addition, the court is and should be less ready to allow a very late amendment than it used to be in former times; and a heavy onus lies on a party seeking to make a late amendment to justify it as regards his own position, that of the other party to the litigation and that of other litigants in other cases before the court.  Although these principles have been applied to amendments to statements of case, they apply equally to a late change of expert. 

26.	In his report on civil litigation costs, Jackson LJ made two relevant and important points.  First, he said that courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing, they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system.  Second, he said: 

"I do regard it as vital that the Court of Appeal supports first instance judges who make robust but fair case management decisions."  

I agree with both these points. Although in the second point Jackson LJ referred to the role of the Court of Appeal, his observations apply just as much to circuit judges hearing appeals from case management decisions of district judges.

27.	In my judgment, there was no flaw in District Judge Payne's exercise of his discretion sufficient to entitle Judge Corrie to interfere with it or to substitute his own decision. I, therefore, would allow the appeal.

Lord Justice Elias:   
28.	I agree.

Lord Justice Ward:   
29.	I also agree.

Order: Appeal allowed