The preliminary or pre-action stage

A person who has been injured, for example in a road or industrial accident or through what may have been negligent medical treatment, can consult a solicitor with a view to making a claim against the person or persons whom he or she holds responsible for his or her injury. The former is called the ‘claimant’ (previously the ‘plaintiff’) and the person against whom the claim is made is the ‘defendant’. The solicitor is then responsible for gathering the evidence quickly and thoroughly (see Box 3).

If this investigation suggests that a claim is justified, the claimant's solicitors send a ‘letter of claim’ to the proposed defendant or insurance company. It must include sufficient information for the defendant's solicitors or insurers to carry out their own investigation and decide on the value of the claim. If the defendant does not respond within 21 days (‘acknowledgment’), the claimant is entitled to issue proceedings.

From the date of acknowledgment of the claim, the defendants have three months to investigate the claim. It is during this time that in a personal injury case the defendants are expected to agree to the appointment of the claimant's proposed medical expert. The pre-action protocol for personal injury claims:

However, the protocol states that before any party instructs an expert he or she should give the other party a list of the name(s) of one or more experts in the relevant speciality whom he or she considers to be suitable to instruct. Within 14 days, the other party may indicate an objection to one or more of the named experts. The first party should then instruct a mutually acceptable expert. Nevertheless, the protocol maintains the flexibility for each party to obtain their own expert report, if necessary after the proceedings have commenced, with the leave of the court. However, if the second party has objected to all of the listed experts, the court can decide subsequently whether either party has acted unreasonably. This might then be reflected in a financial penalty for the unreasonable party when costs are decided.

If the second party does not object to an expert nominated, he or she is not entitled to rely on his or her own expert evidence within that particular speciality unless: (a) the first party agrees; (b) the court so directs; or (c) the first party's expert report has been amended and the first party is not prepared to disclose the original report.

Certainly, in a complicated case and in many cases of alleged medical negligence, the defendants may need the assistance of an expert to advise them so that they can form an opinion as to their liability or the likely value of the case if liability and causation are admitted or proved. An expert adviser at this stage is not an expert within the meaning of the Rules. This means that the Rules do not apply to him or her at this stage, and although the expert advising the court under the Rules has immunity from suit, the expert advisor could be sued for negligence if it was subsequently thought that the advice was wrong and that this had led to the claim not being resolved as it ought to have been had the correct advice been given. It is therefore important for experts to be clear about the stage of the proceedings at which they are being instructed and the function that they are expected to fulfill.

Under the personal injury pre-action protocol, it is the responsibility of the claimant's solicitor to organise access to the relevant medical records. However, the suggested letter of instruction to medical experts includes as an alternative “and/or please request the GP and hospital records direct” – so medical experts, or more often their secretaries, may still find that they are having to chase general practitioners for records.

Either party can send to an agreed expert written questions on the report, relevant to the issues, via the first party's solicitors. The expert should send the answers to the questions separately and directly to each party.

If liability is admitted and agreement can be reached as to the settlement of the claim by negotiation, the case may conclude at this point and even without any medical expert opinion having to be sought. If liability is denied or agreement cannot be reached as to the settlement of the claim, the claimant ‘issues proceedings’.

The proceedings

Proceedings are issued by serving on the defendant the ‘Particulars of the Claim’ (previously the ‘Statement of Claim’) (see Box 4). The defendant has 14 days in which to reply. If liability is denied, the defendant has to answer each allegation with reasons and provide documents to support the denial. All the cards must be on the table. This means that both sides are in a position to assess the strengths and weaknesses of the case. A bare denial of liability is struck out.

After the reply, the court issues an allocation questionnaire to the claimant's solicitor. One of the first questions he or she has to answer is which ‘track’ he or she considers most suitable for the case.

Personal injury claims are allocated to one of three tracks: a ‘small claims track’ for claims of up to £5000 and where the financial value of any claim for damages is not more than £1000; a ‘fast track’ in the county court for claims for which the small claims track is not the normal track and which has a financial value of not more than £15 000; and a ‘multi-track’ in the county court or the High Court for claims of over £15 000. There are rumours that £15 000 may soon be increased to £20 000 or even £50 000. At the allocation stage, the court identifies a three-week ‘trial window’ during which the trial will take place. Experts are not appointed if they are not available for the trial window, and it appears that availability will be a consideration even in fast-track cases where the trial will eventually be fixed for 1 out of the 15 working days – although it is rare for the expert to have to give oral evidence in fast-track cases. It remains to be seen whether or not, in fast-track cases, the courts agree to the appointment of an expert who is already appointed for a case with an overlapping or coinciding trial window.

The problem of experts’, specifically doctors’, holiday commitments is a matter upon which Lord Woolf has himself recently expressed strong views in a case that probably would not have reached the difficult stage it did had it been conducted entirely under the new Rules ( Matthews v. Tarmac Bricks and Tiles Ltd, 1999). A county court judge had fixed a date for the trial of the action even though counsel had indicated that the defendant's two doctors were not available. It transpired that on the date fixed, one of the doctors would be giving evidence at another court and the other would be out of the country on holiday. At the appeal against the order, Lord Woolf said that it was apparently thought that all that was required was to tell the court the dates that the doctors had indicated would not be convenient and the court would thereupon find a date that would allow the case to be heard to meet the doctors’ convenience. He said that this was no longer an appropriate approach and it explained why a great many personal injury cases up and down the country had been delayed inordinately, inconsistent with the due administration of justice. If the conflict of commitments had been explained, he had no doubt that in the case of the first doctor the two county courts would have cooperated to ensure that the doctor could give evidence in both courts. So far as the other doctor was concerned, no request had been made to him to consider whether his holiday could be changed. Lord Woolf said that an effort should have been made at least to ask him to change that date.

Although the draft Code of Guidance states that “those instructing experts should accommodate, as far as possible, the convenience of experts” it also goes on to state that “experts must take all steps to ensure availability to attend court, if and when required”. Since experts’ holidays are a problem that probably will not go away under the new Rules, it is worth noting further the judgement of Lord Woolf in this case:

Ways had to be found to meet the obvious requirement that cases should be heard expeditiously. That required cooperation between the parties, members of the medical profession and the courts…

Doctors who held themselves out as practising in the medico-legal field had to be prepared to arrange their affairs to meet the commitments of the courts where that was practical.”

These views may be contrasted with those of Judge Robert Taylor (1999) who wrote to The Times on the subject of judges’ holidays:

Is it one rule for judges and another rule for doctors?

The allocation questionnaire also requires solicitors to say whether or not they have complied with any pre-action protocol, and if they have not, why not. If there has been a failure to comply with an appropriate protocol, and the judge subsequently decides that the case could have been settled sooner had there been compliance with the protocol, then he or she may take this into account in relation to the claimant's costs.

There is a section on the allocation questionnaire that deals with ‘experts’ evidence’: whether or not it is intended to use expert evidence at the hearing; whether or not experts’ report(s) have already been copied to the other parties; the names and fields of expertise of the proposed experts; whether or not the parties will use the same expert(s) and if not, why not; and whether or not it is proposed that the expert(s) will give oral evidence at the trial and if so, why this is deemed to be necessary. There is a presumption against experts giving evidence orally, especially in fast-track cases, and the court decides.

When the court allocates the case, it also gives directions as to the expert evidence. Within two weeks of the court's notice allocating the case, a listing questionnaire is sent to the parties. This requires the parties to say whether or not expert reports have been agreed with the other parties, whether or not the experts have met to discuss their reports and whether or not permission is sought to call expert evidence to be given orally at the trial.

Fast-track cases

In fast-track cases, the allocation questionnaire has to be completed within 14 days. The trial has to take place within about 30 weeks and a strict timetable will be enforced. This includes a deadline by which experts’ reports have to be disclosed. This is likely to be within 14 weeks of the case being allocated.

Upon allocation of the case, directions are given that include directions in relation to expert evidence. The court may rule that no party has permission to call or rely on expert evidence. In fast-track cases, a single expert jointly appointed by both or all parties (‘single joint expert’) is likely to be the norm. Psychiatrists who have been instructed in recent years in child care cases may already have had an experience similar to that of being a single joint expert in civil cases. As in child care cases, the expert will probably receive one set of jointly prepared instructions, but failing such agreement both parties can give instructions as long as they send a copy to the other party or parties. The single joint expert is in the same position as a party's expert in having to comply with the Rules, the practice directions and the draft Code of Guidance in relation to his or her duties and the form and content of reports. Questions may be put by either, both or all parties to the single joint expert.

The parties may be given a deadline by which to inform the court whether or not such an expert has been instructed in relation to a specified issue. If the parties cannot agree who the expert should be or about the payment of his or her fees, either party can apply for further directions. The court may decide to set a limit on the fees and expenses recoverable (but it cannot set a limit on the total fees and expenses charged) and it can specify the latest date by which the report of the expert is to be filed at the court. Where both or all parties to the proceedings are allowed to obtain expert evidence, the court can order exchange of reports and specify the latest date by which the exchange must take place. Different deadlines may be set for reports relating to causation and damage. Where there is more than one report, the court can set a deadline for the reports to be agreed on by the parties if possible and then order a discussion between the experts if agreement is not possible. It then specifies a date by which a statement of agreement and/or disagreement as to the issues has to be filed with the court. The court specifies the number of days after service of the expert's report during which a party can put questions to the expert and also the number of days the expert is allowed to file his or her reply to the questions.

In the meantime, either party can make an offer to settle. The tactics of the parties in trying to negotiate settlement at this stage may take into account expert opinion on particular points.

Ten weeks before the trial window, the date for the trial is fixed and listed. Until then, the expert must remain available for any date during the window.

Trials in fast-track cases usually take one five-hour day, which begins with 30 minutes for the judge to read the papers and ends with 30 minutes for his or her judgement and 20 minutes for his or her summary assessment of the costs. However, it is rare for experts to be called to give oral evidence at fast-track trials.

Multi-track cases

Cases on the multi-track are subject to case management conferences at which the judge issues directions as to whether there should be a single joint expert or separate experts, sets timetables for the exchange of expert reports and orders discussions or meetings between the experts. The Rules allow the judge to give directions for a single joint expert on any appropriate issue unless there is a good reason not to do so.

Single joint experts are likely to be instructed for lower-value multi-track cases and where fairly straightforward evidence as to condition and prognosis is required to determine the value (‘quantum’) of the claim. Both parties are likely to be allowed to have their own experts on matters such as liability and causation. Thus, single joint experts are unlikely to be appointed in medical negligence cases unless in relation to condition and prognosis.

Timetables for multi-track cases are flexible. However, the aim is to reach the trial date within about a year, and not several years as has been the case in the past.

It has been suggested that some judges may create a fast-track at the bottom of the multi-track for simpler cases, with a two-day trial relatively early and no oral expert evidence.

It remains to be seen whether or not the new Rules will achieve their intended objectives of reducing the cost and speeding the process of civil litigation. What is in no doubt is that the system has changed.