MP v Mid Kent Healthcare NHS Trust

Posted on 05/11/2001 · Posted in Expert Witness

Use of a single joint expert, parties cannot separately hold meetings with the single joint expert

Events at the Claimant’s birth resulted in the Claimant suffering from cerebral palsy. During proceedings against Kent Healthcare NHS Trust the judge ordered for the simultaneous exchange of medical expert evidence and for single joint experts to produce reports on various non-medical matters. Dispute arose when the Claimant’s parents sought to have a conference with one of the single joint experts without a representative of the Defendant present.

The Court of Appeal first considered the merits of the Court’s power to direct for the instruction of a single joint expert. It stated that the Court’s power to so direct is unrestricted and that the Court has wide discretion to further the overriding objective. Single joint experts were considered appropriate in this case due to the greater control it allowed over costs, the desire to avoid adverse effect on the resources of the NHS, and the desire to reduce stress and anxiety.

The Court of Appeal then considered the possibility of one party having a conference with a single joint expert. It stated that a single joint expert should be allowed to interview both parties without the other present for the purpose of preparing a report but that it would not be correct for one party with lawyers present to have a conference with the single joint expert without the other side represented. This was not to say that the expert could not be tested by the parties, but that it should be done only with representatives of both parties present. The framework for using a single joint expert was designed to ensure an open process so that both parties would know all the information. The Court of Appeal cited to para. 19.9 of the Academy of Experts Protocol as admirably summarising the position: “a single joint expert should not attend any meeting or conference that is not a joint one, unless all the parties have first agreed in writing”.

Link: MP v Mid Kent Healthcare NHS Trust [2001] EWCA Civ 1703

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