Jersey Unreported Judgments

Damages -claim for damages sought by the plaintiff relating to injuries sustained in an incident at Jersey Airport.

[2015]JRC256

Royal Court

(Samedi)

11 December 2015

Before     :		Advocate Matthew John Thompson, Master of the Royal Court
Between	Alexander Ure		Plaintiff
And	The Minister for Economic Development		Defendant

Advocate C. Le Quesne for the Plaintiff.

Advocate J. N. Heywood for the Defendant

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-4
3.	The Contentions	5-10
4.	Decision	11-20

judgment

the master

Introduction

1.        This judgment represents my detailed written reasons for ordering sequential exchange of experts' reports.

Background

2.        The present proceedings were commenced by order of justice signed on 5^th July, 2013, and relate to an incident at Jersey Airport.  As the facts of what occurred and liability are in dispute, for the purposes of this judgment I simply note that the plaintiff seeks damages for injuries said to be caused as a result of an incident at Jersey Airport in 2009. 

3.        On 30^th November, 2015, the matter came before me for directions, which directions were agreed save in respect of whether there should be simultaneous or sequential exchange of experts' reports in respect of causation, quantum, condition and prognosis.  Both parties wish to call experts in the fields of orthopaedic surgery, chronic pain and psychiatry. 

4.        Insofar as expert evidence is required on issues of liability it was agreed the exchange of such reports should take place simultaneously. 

The Rival Contentions

5.        Advocate Le Quesne contended for the plaintiff that simultaneous exchange created the best opportunity of experts producing an independent and objective analysis of the issue the particular expert was being required to consider.  By contrast sequential exchange changed the nature of the assistance an expert was providing to the court.  Inevitably a defendant's report in such circumstances would be a critique of a plaintiff's report rather than the expert's own independent opinion.  The cost savings by a defendant producing its own report rather than commenting on the plaintiff's report were also minimal.  Areas of agreement and disagreement were for an experts' meeting to resolve.  Having independent reports could help narrow issues in dispute.  Simultaneous exchange therefore produced a level playing field between the parties. 

6.        I was informed that in this case the plaintiff had provided reports on a without prejudice basis and that the amount at stake was a six figure sum. 

7.        Advocate Heywood contended that for medical evidence production of reports should always be on a sequential basis.  This was because it was only on production of a plaintiff's medical evidence that a defendant would have a clear analysis of a plaintiff's claim, even if a defendant knew in broad terms what injury or condition a plaintiff was alleging.  Even medical records did not go to the same level of detail as experts' reports.  Seeing an expert report from a plaintiff in advance of a defendant producing its expert medial evidence allowed a defendant to save costs because the defendant was then able to see what issues it agreed with and what issues a defendant through its relevant expert opposed.  The provision of medical reports by the plaintiff first therefore allowed a defendant to really focus on what was in issue and to decide whether it wished to dispute a plaintiff's claim, accept a plaintiff's claim or to seek to negotiate a settlement. 

8.        Advocate Heywood accepted fairly that there was some risk of delay in a sequential process but argued that the effect of delay was outweighed by the importance of allowing a defendant an opportunity to consider whether or not it accepted the case or part of a case a plaintiff was putting forward.  A plaintiff always has to obtain reports in order to set out the injuries claimed to have been suffered and to prove its case and so ordering sequential reports did not prejudice a plaintiff.  Such evidence was always necessary in most claims involving significant injuries for a plaintiff to discharge the burden of proof. 

9.        In respect of issues of liability or any arguments about how any lump sum should be calculated, Advocate Heywood accepted, rightly in my view, that simultaneous exchange was appropriate.  While a plaintiff still has to prove its case, where there are real issues between experts the Court is best assisted by each side producing its own report independent of the other. 

10.      In terms of authority, neither counsel had been able to find any Jersey authority.  I was referred by Advocate Heywood to the Civil Procedure Rules 2015 ("CPR") at paragraph 29.3.2 which allowed for sequential exchange of reports where appropriate. 

Decision

11.      In reaching my decision I start by reference to what approach I should take as a matter of principle.  Like counsel I am not aware of any Jersey authority on whether exchange of reports of medical experts should take place simultaneously or whether production should be sequential. 

12.      Paragraph 29.3.2 of the CPR, starts from a different perspective namely the English Court firstly considers whether it should give directions for a single joint expert, which cannot occur in Jersey; only if there is no joint expert will simultaneous exchange of experts reports be ordered.  Sequential exchange can be ordered where appropriate i.e. it is an option. 

13.      However, in England where claims are made for personal injuries, it also seems to be the practice that medical reports are produced on a sequential basis.  While current detailed guidance is found in the CPR, it appears that this practice had been adopted prior to the introduction of the CPR.  Order 18/12/1A of the White Book (1999 edition) required a plaintiff in an action for personal injuries to serve with a statement of claim medical reports relied upon as well as a statement of any special damages claimed.  Paragraph 18/12/53 also noted that the detailed particulars of personal injuries are in practice found in a medical report which appears to be the rationale as to why disclosure of such reports at the time of service of a statement of  claim is required. 

14.      However, the position in England past or present is not the law of Jersey at present but is only a possible guide; how far it assists depends on the degree of closeness between the relevant Royal Court Rule or practice and any rule or practice in England.  What is the present law of Jersey is that proceedings should be conducted in accordance with an agreed timetable at a reasonable level of cost and should progress to trial within a reasonably short time (see the well-known observations in Re Esteem Settlement 2000/150). 

15.      In light of this principle, I do not consider it appropriate either to rule that disclosure of reports must be simultaneous or production will always be sequential.  Rather I consider ultimately the issue is one of discretion.  However, as noted in the 1999 White Book, and based on the personal injury matters where I have given directions, it is often the case that a plaintiff will provide medical evidence either on an open basis or a without prejudice basis in order to provide details of the particular injuries a plaintiff has suffered and to encourage a defendant to explore settlement.  Merely because I have discretion to order reports to be exchanged simultaneously, should not be taken as encouraging parties to depart from this usual practice.  It is generally in a plaintiff's own interest to produce medical evidence of injuries suffered sooner rather than later to enable the parties to explore what the issues are between them and whether a settlement can be found.  Not to do so means that a plaintiff might be criticised for not running the case at a reasonable level of cost and preventing proceedings from progressing to trial in accordance with an orderly timetable. 

16.      Where a plaintiff produces its medical evidence early, this can lead to costs being saved.  The potential for such a saving does not just benefit the defendant or the defendant's insurers.  It may benefit the plaintiff too if the defendant is in a position to come to a view that a case ought to be settled rather than incur costs.  Requiring costs to be incurred unnecessarily may also hinder rather than help settlement.  Ordinarily therefore sensible practice requires a plaintiff to produce its medical evidence sooner rather than later and as soon as it is reasonably able to do so because that is likely to help identify what is at stake between a plaintiff and a defendant and whether or not a case is likely to settle. 

17.      I also consider that such an approach does not compromise the integrity of a defendant's expert.  Such an expert is still an expert and still owes the same duties to the Royal Court which are paramount.  The fact that a defendant's expert produces a critique of a plaintiff's expert report rather than producing his or her report does not affect the duties that expert owes to the court to provide an independent opinion.  These duties prevail over any obligations owed by an expert to a defendant.  The critique must therefore still be an independent opinion. 

18.      However, there may be circumstances where the issues are such that simultaneous exchange of reports is appropriate because there is a real and significant area of dispute between medical experts.  It is not appropriate to set out what those circumstances might be because they will apply on a case by case basis and go to an exercise of discretion.  However any application for simultaneous exchange of medical expert evidence would require justification to depart from the ordinary practice I have described above. 

19.      On the facts of this case, the plaintiff has already provided reports on a without prejudice basis.  Accordingly I directed the defendant as soon as reasonably practicable and no later than 31^st December, 2015, to indicate the extent to which, if at all, its medical experts accepted or rejected the findings and conclusions as presently expressed by the plaintiff's medical experts.  I then gave directions for the plaintiff to file the medical evidence upon which it wished to rely at trial by 11^th March, 2016.  This evidence in light of the direction to the defendant to require its experts to indicate which part of the plaintiff's evidence it did not dispute, would then allow the parties to focus on what was in issue.  Directions were also given for the defendant to file its expert evidence in response by mid-April 2016 and for experts' meetings to take place by the middle of May 2016. 

20.      Finally, I made it clear to both parties' legal advisers that the process of instructing experts to meet this timetable should take place as soon as possible in particular so that the defendant's medical experts could respond to the plaintiff's experts within the timeframe allowed.  This included making arrangements now for the plaintiff to see the defendant's experts, if that was required, in the period when the defendant was required to produce a response. 

Authorities

2015 Civil Procedure Rules Guide.

White Book 1999 Edition.

Rules of the Supreme Court (1999 edition).

Re Esteem Settlement 2000/150