Abstract
There is a world of difference between an agricultural land tribunal (ALT) held in the bar of a country hotel and an Old Bailey murder trial.
The ALT panel comprises a solicitor or barrister as chair, a ‘landlord’s representative’, nominated by the Country Landowners’ Association, and a ‘tenant’s representative’, nominated by the National Farmers’ Union. The chair is addressed as ‘Sir’ or ‘Madam’. Oral evidence may require the oath or an affirmation. Rules of evidence are relaxed; the ALT may admit evidence even if inadmissible in a court of law.
Expert witnesses are a crucial resource. Without them we [the judges] could not do our job.
There is a world of difference between an agricultural land tribunal (ALT) held in the bar of a country hotel and an Old Bailey murder trial (Rix 1997).
The ALT panel comprises a solicitor or barrister as chair, a ‘landlord’s representative’, nominated by the Country Landowners’ Association, and a ‘tenant’s representative’, nominated by the National Farmers’ Union. The chair is addressed as ‘Sir’ or ‘Madam’. Oral evidence may require the oath or an affirmation. Rules of evidence are relaxed; the ALT may admit evidence even if inadmissible in a court of law. The parties are the applicant and the respondent. The applicant bears the burden of proving their case, such as suitability to succeed to a farm tenancy, on the balance of probabilities (the ‘civil standard’ of proof, which means ‘more probable than not’). The panel decides the case unanimously or by a majority. Where appropriate, the ALT seeks to avoid formality and inflexibility.
An Old Bailey murder trial takes place before a judge and jury. The judge is addressed as ‘My Lord’ or ‘My Lady’. Oral evidence requires an oath or affirmation. Rules of evidence are strict. Proceedings are far from informal. The parties are the Queen, whose case is put by the prosecution, and the defendant. The prosecution bears the burden of proving its case beyond reasonable doubt (the ‘criminal standard’). The defendant has to prove nothing unless raising a particular defence. The judge directs as to the law. The jury decides guilt by a unanimous verdict or, if permitted, by a majority verdict.
These proceedings have in common the delivery of justice. This may require medical expertise. In order to assist, medical experts need to understand the law and the procedural rules that govern the use of expert evidence. We now introduce the legal systems of the British Isles. AWLP states: ‘You must understand and follow the law and codes of practice that affect your role as an expert witness.’
The Legal Systems of the British Isles
There are nine legal jurisdictions in the British Isles. We treat England and Wales as a combined jurisdiction. The others are Alderney, Guernsey, Ireland, the Isle of Man, Jersey, Northern Ireland, Sark and Scotland. They can be divided into common law jurisdictions and code or civil law jurisdictions, but this is a blurred distinction.
The common law means the law that was common throughout England in the Middle Ages. In common law jurisdictions precedential weight is given to the decisions of judges, courts and other tribunals and, although they have equal weight with the statutes passed by the legislature and regulations of the executive, judges interpret the statutes and decide, by reference to previous cases where possible, those cases that cannot be decided unambiguously by reference to statute or regulations. The decision in a single case is binding on the parties, unless successfully appealed, but not binding, however, on parties in other cases.
Civil or code law jurisdictions base their laws on the Napoleonic Code, which originates in the Roman Corpus Juris Civilis. Relying on codes or statutes which are meant to cover all matters that may be brought before a court of law, decisions in previous cases are only advisory and not binding unless a long series of cases has been decided similarly. Courts have no jurisdiction in matters not covered by code or statute. Judicial precedent has less weight. Judges have more freedom to act independently in interpreting statutes and codes and may interpret them less predictably. They rely more on scholarly literature, such as legal treatises and academic literature, which is no more than informative in common law jurisdictions, than on decisions in previous cases. Principle carries more weight than precedent.
England and Wales, Ireland, Northern Ireland and Scotland are all common law jurisdictions.
Irish law has its origins in British common law, which replaced the Gaelic Brehon law. It comprises statutes of the pre-Union Irish Parliament, Statutes of England and of Great Britain applied to Ireland, post-Union Statutes of the Parliament of Great Britain and Ireland, all pre-dating Irish independence, post-Independence Statutes up to 1937 and legislation that has been passed since 1937 when Ireland’s last Constitution was adopted.
Manx law also has its origins in Brehon law, along with Norse Udal law, but is now heavily influenced by English common law, which operates alongside the Acts of Tynwald, the Manx parliament, and Acts of the Imperial Parliament at Westminster that apply to, or are adopted by, the Isle of Man.
Although Scotland is regarded as a common law jurisdiction, it has a unique legal system that mixes elements of common and civil law. Its common law originates in the ‘customary law’ of generally accepted usage and practice of the tribes that inhabited Scotland in the first millennium. Before the Union, Scotland adopted the continental civil law approach of favouring principle over precedent and applied Roman law or the ‘Code of Justinian’ where there was no native Scots law rule. There is still a greater attachment to principle than in Anglo-Saxon common law. One important principle in Scotland is corroboration. In a criminal trial, an accused may only exceptionally be convicted on the testimony of a single witness. That ceased to be the norm in civil cases, as the Civil Evidence (Scotland) Act 1988, s 1 provides that the court may find a crucial fact proved even if relevant evidence derives from a single source. In certain actions, such as divorce, the source must be someone other than a party to the case. Although lack of corroboration would not be fatal, the court’s satisfaction as to proof would be a matter of weight, rather than sufficiency, of evidence.
Scotland’s and Ireland’s civil and criminal procedure rules are not codified as much as in England and Wales and their courts do not exercise the same control over the admission of expert evidence; the parties decide if it is needed and what type of evidence is required. It is, however, for the court to be satisfied that a witness has appropriate competency and expertise (Hainey v Her Majesty’s Advocate [2013] HCJAC 47).
The Channel Isles comprise the Crown dependencies of the Bailiwick of Jersey and the Bailiwick of Guernsey. Alderney and Sark are independent Crown dependencies within the Bailiwick of Guernsey.
The laws of Jersey and Guernsey are rooted in Norman customary law, which has its origins in Roman law. Principles derived from English common law are applied and there are statutes passed by the legislatures, The States of Guernsey and The States of Jersey. However, in the Bailiwick of Guernsey, in the areas of legal practice where expert psychiatric evidence may be admitted, the law bears no resemblance to any old customary law and is derived from statute or common law principles. Furthermore, there is so little customary Norman law now used that there is no significant distinction between the Bailiwick and England and Wales as to the overall system of law. Jersey also relies on modern French civil law.
Proceedings in the Bailiwick of Guernsey are adversarial. Apart from the composition of the Royal Court of Guernsey trying a criminal matter on indictment, there is very little difference procedurally from the Crown Court in England and Wales and the courts use Blackstone’s Criminal Practice or Archbold with no need to refer to any aspect of French law. Similarly, in a civil trial for damages, again apart from the court’s constitution, procedure largely reflects what happens in England and Wales and in tort cases Guernsey law looks to the common law of England and Wales. Accordingly, the law of negligence develops along similar lines to England and Wales. Breach of statutory duty necessarily requires there to be some legislation creating the duty in the first place and health and safety legislation is not as full as that in England and Wales, but any gaps are likely to be resolved through having regard to how a particular provision would be viewed elsewhere. In children cases, legislation has drawn on the Scottish system; there are a Children’s Convenor and a Child Youth and Community Tribunal (CYCT), which keeps some matters outside the court system.
Sark has its own laws based on Norman customary law, but Guernsey legislature, having developed out of the Royal Court of Guernsey, is applied in matters of criminal justice for the entirety of the Bailiwick without such laws having to be approved by the States of Alderney or the Chief Pleas of Sark. By contrast, in civil matters, each legislature has to approve a law before it can be sent for Royal Assent. That is why, for example, Guernsey and Alderney have the same Children Law, whereas Sark has a later, and edited, version appropriate to that jurisdiction, but its laws are no more and no less based on Norman customary law; it is just that certain elements of customary law have not been abrogated by primary legislation.
The relationship between Alderney and Guernsey is different because of its legislative framework, on the basis of which The States of Guernsey provides its major services. So, policing, healthcare, social security and childcare are transferred services. However, the court system in Alderney (and in Sark) is separate from the first instance courts in Guernsey and, although the Royal Court has concurrent jurisdiction in civil matters, someone could choose to commence proceedings in the Royal Court of Guernsey rather than in either Alderney or Sark. But, consequently, they then miss out on one stage of appeal because appeals from the Court of Alderney and the Court of the Seneschal of Sark lie to the Royal Court of Guernsey.
Proceedings in common law jurisdictions are adversarial and in code law jurisdictions they are inquisitorial.
In adversarial proceedings, opposing parties seek to defeat each other’s case before a neutral fact-finder, a judge or jury, relying on rules, procedures and legitimate forensic and other techniques to present their own case in the best possible light and undermine their opponent’s. Judges rely on the parties’ counsel to elicit the evidence from witnesses upon which they base their decision and in theory rarely ask questions, but in practice some seem congenitally incapable of keeping quiet (perhaps itching because they are no longer in the pit?). This is the system in criminal cases described in R v Criminal Cases Review Commission, ex p Pearson [1999] 3 All ER 498 as:
… so familiar as to require no description. But we draw attention to two characteristic features of jury trial … First, the procedure is adversarial. There is no duty on the trial judge, as in an inquisitorial proceeding, to investigate what defences might, if pursued, be open to a defendant, nor to interrogate or call witnesses. It is the function of the judge to direct the jury on the relevant law and to summarise … the evidence, and to define the issues raised … The judge need not, and should not, go further. Secondly, the decision on the defendant’s guilt is made following a trial, continuous from day to day, by a jury assembled only for that trial, with no responsibility for the proceedings before the trial begins or after it ends. Thus the decision-making tribunal must reach its decision on the argument and evidence deployed before it at a final, once-for-all, trial.
Or, as ‘The Secret Barrister’ (2018) describes it: ‘adversarialism being a loose term for the model pitting the state against the accused in a lawyer-driven skirmish for victory played out before an impartial body of assessors – comprising a courtroom, judge, jury, accused, lawyers, witnesses, questions and speeches in some sort of configuration. And plenty of wigs’.
In inquisitorial proceedings, the parties’ cases are investigated by a disinterested examining judge who can question witnesses, interrogate suspects and order investigations and who develops the legal arguments that the two sides can be expected to advance. Their dossier goes to a trial judge who can also examine witnesses, asking what are meant to be all relevant questions, thus leaving little questioning for the parties’ advocates. However, some adversarial argument may take place.
Inquests and fatal accident inquiries are inquisitorial (see Chapter 15).
The Criminal Justice Process
When it is suspected that a crime has been committed, there may be a victim who may be the complainant who alleges that a crime has been committed, but not all complainants are victims. There may be witnesses who have seen or heard what happened. There may be a suspect who, if charged, becomes the detainee, then the accused (or defendant). Medical experts may be required to assess victims, complainants, witnesses, suspects/detainees and accused. They may also be instructed to give an opinion on findings made by other medical practitioners. The expert’s findings and opinions deduced from them may then form the basis of expert evidence. Medical experts may be instructed by the prosecution, the defence or occasionally by the court.
The Criminal Courts of the British Isles
Where the trial takes place (Box 2.1) depends on a number of considerations.
Box 2.1 Criminal Courts in the British Isles
| England and Wales, Northern Ireland | Ireland | Scotland | Isle of Man | Jersey | Guernsey | Alderney | Sark | |
|---|---|---|---|---|---|---|---|---|
| Summary courts |
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| Court of Alderney | Court of the Seneschal |
| Higher courts |
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| Court of General Gaol Delivery | Royal Court | Royal Court | Royal Court (Guernsey) | Royal Court (Guernsey) |
There are special courts for children. In several jurisdictions, there are special arrangements for children and young people outside the court system. In Scotland, they take the form of children’s hearings for children and young people. Where the grounds of referral to a children’s hearing are disputed, the sheriff conducts a proof hearing at which medical evidence may be admitted. As the sheriff is exercising civil powers, the standard of proof is the civil standard. In Guernsey and Alderney, children can be dealt with outside the court system by the CYCT.
In general, summary courts deal with minor offences and the higher courts with more serious offences.
In summary courts, there is no jury. The emphasis is on speed, straightforwardness and economy. In most summary courts, cases are heard by one or more, but usually three, lay magistrates (England and Wales) or justices of the peace (Scotland). Some summary cases are heard by legally qualified judges known in England and Wales as district judges, in Ireland, Jersey and Guernsey as judges, in Scotland as sheriffs or summary sheriffs and in the Isle of Man as bailiffs. In Ireland, the only court of summary jurisdiction is the District Court (apart from a summary court-martial) presided over by a single, legally qualified judge, sitting alone. In Northern Ireland, magistrates’ courts are presided over by a legally qualified district judge and the youth court by lay magistrates. In the Isle of Man, the terms magistrate and justice of the peace are both used. In the Court of Alderney, the Chairman sits with three to six jurats, who are lay people appointed by the Lieutenant-Governor of Guernsey, assisted by a legally qualified clerk, but there is a power to constitute the court by a single legally qualified person. In Sark, the court is constituted by a single person, usually the Seneschal or the Deputy Seneschal, neither of whom is legally qualified. The court can, however, be constituted by a Lieutenant-Seneschal, who must be legally qualified.
In most higher courts, judges sit with a lay jury or jurats. Jury sizes vary. In the Isle of Man, it is usually seven, but for offences of murder and treason it must be twelve and at the discretion of the judge, who is known as the Deemster, it can be twelve for other serious offences. In England and Wales and Northern Ireland, it is twelve and, in Scotland, it is fifteen. In Ireland, it is twelve to fifteen, but if there are more than twelve, immediately before the jury retires to consider its verdict, twelve are selected by ballot in open court and the non-selected jurors are discharged. In Ireland, there is a constitutional entitlement to a trial by jury in respect of all ‘non-minor offences’, but in the Irish Special Criminal Court, which hears terrorism and organised crime cases, three judges sit alone. In England and Wales and in Northern Ireland, the judge can sit alone where there has been or may be jury tampering. Also in Northern Ireland, the judge can sit alone to hear indictable cases where the criminal offence was committed either from a motive of ‘religious or political hostility’ or on behalf of a proscribed organisation connected with the ‘affairs of Northern Ireland’. In jury trials, the jury decides the verdict and the judge decides the sentence. The Royal Court of Guernsey, sitting with a criminal matter on indictment, is constituted by the Bailiff, the Deputy Bailiff, the Judge of the Royal Court or a Lieutenant-Bailiff, who is legally qualified, and a minimum of seven jurats who are elected by a special electoral college known as the States of Election. Guilt (or a special verdict) is found by a simple majority of the jurats. If an equal number of jurats constitute the court, and are evenly split, the presiding judge gets a vote. The court is similarly constituted on sentencing. In Jersey, the jurats decide the verdict and, with the judge, the sentence, but there is also a provision for empanelling a lay jury.
There are special provisions for armed forces personnel. In the UK, they are tried in the court-martial where the judge advocate sits with officers and warrant officers. The judge advocate rules on the law and the officers decide the facts. Sentence is decided by the full court. In Ireland, offences against military law are tried by court-martial: a summary court-martial (presided over by a legally qualified military judge, sitting alone), a limited court-martial (a military judge and three members) or a general court-martial (a military judge and five members).
To secure a conviction, the burden is on the prosecution (‘burden of proof’) to establish the accused’s guilt to the criminal standard of proof. The accused has to prove nothing. There are exceptions, such as when the issues are unfitness to plead and stand trial, insanity or diminished responsibility manslaughter (see Chapter 7). The burden of proof is then on the defendant to prove their case to the civil standard of proof.
The following account of criminal procedure is based mainly on the England and Wales CrPR because these are the most highly developed rules and directions that affect medical experts involved in criminal proceedings. They take the form of Part 19 Expert Evidence and its accompanying Practice Direction. They may be influential in other jurisdictions. Guernsey, for example, does not have much by way of rules, and no equivalent of CrPR, but in dealing with procedural matters, if it is considered helpful, the court looks at what happens in the Crown Court in England and Wales, but otherwise does what seems right. In the Isle of Man, there are no analogous rules, but experts are encouraged to follow best practice in England and Wales or other jurisdictions.
In England and Wales, experts have to declare that they have read and complied with Part 19; such declarations ‘are not matters of form but of substance’ because the rules not only ‘provide the structure for the admission of (expert) evidence but also ensure that expert opinion evidence is of the highest quality, that it is balanced and that it is well researched’ (R v Berberi [2014] EWCA Crim 2961).
In Ireland, experts are not appointed by criminal courts. The Criminal Procedure Act 2010, s 34 prohibits an accused from calling an expert witness (a person who appears to the court to possess the appropriate qualifications or experience about the matter to which the witness’s evidence relates) or adducing expert evidence (evidence of fact or opinion given by an expert witness) unless leave is granted. When leave is granted, the prosecution must be given a reasonable opportunity to consider the report or summary before the expert witness gives the evidence or the evidence is otherwise adduced.
Assistance with Case Management
The Criminal Procedure Rules 19.2(1)(b) obliges experts to assist with case management by complying with court directions and immediately informing the court of any significant failure to do so by the expert or another.
Disclosure Obligations
In England and Wales, in order to confirm compliance with the Criminal Procedure and Investigations Act 1996 (CPIA), as amended, experts instructed by the prosecution must include a declaration confirming that they have read and followed Guidance for Experts on Disclosure, Unused Material and Case Management (Crown Prosecution Service 2009) and recognise the continuing nature of their responsibilities of disclosure. This reflects CrPR 19.3(3)(d), which requires the expert to be prepared to make available for inspection by another party ‘a record of any examination, test or experiment on which the expert’s findings and opinion are based, or that were carried out in the course of reaching those findings and opinion, and … on which any such examination, measurement or test was carried out’.
In Scotland, similarly, the Crown Office and Procurator Fiscal Service Guidance booklet for expert witnesses – The role of the expert and disclosure states:
The Crown is obliged to disclose any information that forms part of the prosecution case that the Crown intends to use at trial, and any information obtained or generated during the investigation that is for the accused, i.e. that materially weakens the Crown case or materially strengthens the defence case. It is important to remember that it is the nature of any information which is significant and not the format in which it is held. The Crown’s disclosure duty may encompass a negative finding as such a finding may support the defence case or undermine the Crown case.
This means that the expert has to ‘ensure that all relevant material from your investigations or examinations is revealed to the Crown in your report or witness statement. This includes all results or findings, regardless of whether the result is a negative one or assists the defence rather than the Crown.’ As to what is ‘relevant’, the onus is on the expert because, having regard to the scientific and technical nature of some forensic evidence, the Crown ‘is not best placed to determine the materiality of that information’.
Disclosure obligations have been summarised as ‘the four R’s’ (Box 2.2).
Box 2.2 A Quick Guide to Disclosure Obligations When Instructed by Prosecution
Retain – you should retain everything, including physical, written and electronically captured material, until otherwise instructed.
Record – you should keep records of all of the work you have carried out and any findings you make in relation to the investigation. The requirement to record begins at the time you receive instructions and continues until the end of your involvement in the case.
Reveal – you must make the Crown aware of all relevant material you have in your statement or report, and your records should be made available to the defence if requested.
Review – you should review your conclusions if any new information comes to light, both before and after a trial or appeal.
In Ireland, there is a similar disclosure obligation on the prosecution.
The Isle of Man has recently enacted an analogous Criminal Procedure and Investigations Act 2016. As the Isle of Man has not yet issued any rules, there is no statutory obligation to make a declaration in the terms stated above. However, it is a recognised standard for analogous declarations to be provided.
Pre-Hearing Discussion of Expert Evidence
Where more than one party wants to introduce expert evidence, the parties may agree to (CrPR 19CPD1), or the court may direct (CrPR 19.6(2)(a)), a pre-hearing discussion of the issues by the experts. Following a discussion that has taken place without an order of the court, a joint statement has to be prepared dealing with (1) the extent of agreement, (2) the points of and short reasons for any disagreement, (3) action, if any, to resolve outstanding disagreement and (4) any further material issues not raised and the extent to which they are agreed. Providing ‘short reasons’ does not mean cutting and pasting vast sections from the reports. A statement prepared following a discussion ordered by the court may also have to include the reasons for agreement.
An expert’s failure to comply with a direction for a pre-hearing discussion requires the expert’s instructing party to seek the court’s permission to introduce expert evidence (CrPR 19.6(4)).
If the parties consider it necessary, they may provide an agenda that ‘helps the experts focus on the issues which need to be discussed’. It must not be in the form of leading questions or hostile in tone. There must be no requirement that the experts should avoid or defer reaching agreement on any matter within their competence. The discussion may be a meeting by telephone or live link and should be so where that will avoid unnecessary delay and expense. The content is confidential and must not be disclosed without the court’s permission (CrPR 19.6(3)). Legal representatives of the parties may attend, but should not normally intervene, except to answer questions put to them by the experts or to advise on the law. The experts may hold part of their discussion in their absence. Individual copies of the statements must be signed or otherwise authenticated, in manuscript or electronically, at the end of the discussion or otherwise within five business days and copies provided to the parties within ten business days of signing.
If an expert significantly alters an opinion, the joint statement must include an explanatory note or addendum by that expert.
Single Joint Experts
In England and Wales, there is a power under CrPR 19.7 for the court to direct that evidence is given by a single joint expert (SJE) where more than one defendant wants to introduce expert evidence on an issue. This is not a provision for the prosecution and the defence to appoint an SJE. In the Isle of Man, there are no such directions in this regard, but it is possible that an SJE could be appointed.
The Civil Justice Process for Personal Injury Actions
In the civil courts (Box 2.3), the assistance of medical experts is most often required where claims are made for damages for personal injuries, particularly injuries resulting from road or industrial accidents, by patients who allege that they have been harmed by medical negligence and about diseases that have occurred in the workplace, through occupation of premises or the use of products. Personal injuries include ‘any disease and any impairment of a person’s physical or mental condition’ (Limitation Act 1980, s 38). The use of ‘includes’ indicates that this is not meant to be an exhaustive definition. There is an identical definition in the Isle of Man’s Limitation Act 1984 and a near identical definition in Ireland’s Civil Liability Act 1961, s 2(1), Personal Injuries Assessment Board Act 2003 (PIABA) and Civil Liability and Courts Act 2004 (CLCA).
Box 2.3 Civil Courts in the British Isles Dealing with Personal Injury Actions
| England and Wales | Northern Ireland | Scotland | Ireland | Isle of Man | Jersey | Guernsey | Alderney | Sark | |
|---|---|---|---|---|---|---|---|---|---|
| Courts |
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| High Court | Royal Court | Royal Court | The Court of Alderney | The Court of the Seneschal |
| Parties |
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Medical evidence is necessary in order to quantify the injuries suffered and their consequences and to allow the parties to agree, or the court to decide, how much money (‘quantum’), if any, to award the claimant. The medical expert’s role usually involves identifying the nature of the injury and assisting with the investigation of any facts that require medical knowledge for their elucidation. Evidence is also needed to assist as to the validity of the claim. This means addressing ‘causation’: whether the injury sustained is an injury attributable to the accident or the allegedly negligent medical care. In an industrial disease claim, the medical expert may also have to give an opinion whether exposure to a substance made a ‘material contribution’ to the injury or condition, although in Ireland, ‘material contribution’ is not part of the law on causation – however compelling it might otherwise be (see below). The medical expert may also be asked to assist as to whether the injury was ‘reasonably foreseeable’, but this is ultimately a matter for the court. Evidence as to whether a disease is associated with a particular exposure or process, and it is, or ought to have been, known that it was, and was, in fact, likely caused by or attributable to it is, of course, a different matter.
Usually, the expert is instructed by solicitors (or advocates in the Isle of Man) acting for one of the parties and is therefore a party, or party-appointed, expert. In England and Wales and the Isle of Man, the parties are the claimant and the defendant. Different terminology is used in other jurisdictions (Box 2.3). We use the terms claimant, defendant and solicitor as generic terms unless the context requires otherwise.
An expert may be jointly selected but instructed by only a single party as an agreed expert; they are still a party expert and will usually be paid by the instructing party. Sometimes the expert may be jointly instructed by the solicitors acting for two or more defendants. An expert so instructed is also a party expert. The party expert’s duty is to provide his report to, and only communicate with, his instructing solicitors unless they agree, or the solicitors acting for the opposing party put questions to the expert under CPR 35.6 or the court orders it. Occasionally, the expert is instructed by the opposing parties on a joint basis as an SJE.
This section is based on the England and Wales CPR, taking into account the Guidance which the CPR expect experts to apply.
The CPR are mirrored by the Rules of the High Court 2009, as amended, of the Isle of Man and, in relation to expert evidence, the Evidence in Civil Proceedings (Guernsey and Alderney) Rules 2011. Northern Ireland relies on the Rules of the Court of Judicature (Northern Ireland) 1980 (RCJ), which are similar to the pre-CPR rules in England and Wales.
In Ireland, a paper-based system, the Personal Injuries Assessment Board (the Injuries Board) deals with many civil personal injury actions, including road traffic accident claims, but not clinical negligence claims, without court proceedings. There are no oral hearings. Awards are based on the consideration of medical reports, usually but not necessarily provided by the treating general practitioner, and its General Guidelines as to the amounts that may be awarded in Personal Injury cases: Book of Quantum (2016) (the Book of Quantum). If either party rejects the award, an authorisation can be issued permitting the bringing of proceedings. However, where the injury alleged is primarily or mainly psychological in nature, an authorisation issues as a matter of course. The same applies to claims in trespass (assault, battery, false imprisonment).
A personal injury case starts when someone believes that they have been wronged and they consider seeking a legal remedy. The wrong is called a ‘tort’ or, in Scotland, a ‘delict’. The purpose of civil proceedings is to use financial compensation to ‘put the party who has been injured, or who has suffered, in the same position as he would have been’ but for the wrong (Livingstone v Rawyards Coal Co. (1880) 5 App Cas 25). This is the principle of the law of damages. This is the law’s best response: a sum of money is given proportionate to the pain, suffering and loss of amenity caused by the injury. Loss of amenity is the effect on the claimant’s enjoyment of life and effects on their special senses.
The categories of damage and the usual amounts of compensation are set out in the Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases (2019) (‘Judicial College Guidelines’), for Northern Ireland in the Judicial Studies Board for Northern Ireland’s Guidelines for the Assessment of Damage in Personal Injury Cases in Northern Ireland (2019) and for Ireland in the Book of Quantum, but it does not deal with some injuries at all (e.g. any psychological injury), however described. The Judicial College Guidelines are also used in Guernsey and Alderney. Medical experts should familiarise themselves with the categories of injuries in their field and if appropriate the approach to the assessment of severity.
Damages for pain, suffering and loss of amenity are known as ‘general damages’. There may also be ‘special damages’ for future financial loss and expense such as ‘loss of earnings’ and ‘care’. The size of a settlement or award can depend very much on the special damages. Medical evidence will be needed to persuade the court, or for the parties to agree, that the injury has restricted the claimant’s ability to follow their employment or has resulted in a need for care.
The Pre-Action Stage
First, the potential claimant consults a solicitor. How the solicitor proceeds at this ‘pre-action stage’ may be governed by a pre-action protocol. They are intended to resolve as many disputes as possible without recourse to litigation through early but well-informed settlements. In England and Wales, there are protocols for personal injury, clinical disputes, disease and illness (including mesothelioma) and low value personal injury road traffic accident claims. There are similar pre-action protocols in Scotland and Northern Ireland. Although they do not exist in the Channel Isles, there is a similar emphasis on such alternative dispute resolution and practitioners look to England as a source of good practice. If litigation takes place, there may be penalties for non-compliance with the relevant pre-action protocol. The procedure in Injuries Board cases in Ireland is governed by the PIABA, the Personal Injuries Board Rules 2004 and the CLCA, which also makes provision for a pre-action protocol in clinical negligence cases, with objectives consistent with the equivalent in England and Wales, but yet to be commenced.
Clinical negligence cases are a more complex form of personal injury case, as expert evidence may be needed as to breach of duty. These are cases where the issue is of treatment having gone wrong by reasons of acts or as a result of omission or where the issue is of valid or informed consent not having been obtained. There are three elements in the tort of negligence: a duty of care must be owed by the defendant to the claimant; a breach of that duty; and damage resulting therefrom. The concept of a duty of care originates in the ‘neighbour principle’ expounded in ‘the snail in the ginger beer case’ (Donoghue v Stevenson [1932] AC 562): ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ Thus, in a clinical negligence case, the solicitor will usually need, at an early stage, an advisory report dealing at least with liability, that is breach of duty and usually also causation, as the potential claimant will need to prove that the alleged negligence has contributed to his present condition, that is, prove causation. In many personal injury cases, an opinion will also be needed on condition and prognosis in order to know whether any significant injuries or damage can be attributed to the allegedly negligent care or the accident.
In England and Wales, the Pre-Action Protocol for the Resolution of Clinical Disputes (Vos 2019, C3A-001), and a similar protocol in Northern Ireland, allow for separate expert opinions on breach of duty, causation, condition and prognosis and the value of the claim. In short, the role of the medical expert is to assist the solicitor to decide whether their client appears to have a case and whether it should be pursued. In Ireland, adequate supportive expert evidence is required in order to justify the institution and prosecution of proceedings claiming damages against a medical practitioner or hospital and to do so without such evidence is an abuse of the process of court and, for the practitioners involved, professional misconduct.
A report at the pre-action stage is not governed by the CPR because these only apply to cases that are subject to civil proceedings. So, at this stage, the expert has no duty to the court; the duty is to those instructing them. Thus, there is a distinction between an expert advisor who prepares a pre-action advisory report outside CPR and an expert witness who prepares an expert report following the issue of proceedings. It is different in Ireland, where the Rules of the Superior Courts (RSC) Ord. 39, r 46(1), as interpreted in Payne v Shovlin [2006] IESC 5, requires the production of all reports of an expert intended to be called as a witness which contain in whole or in part the substance of the evidence to be given, and not just a ‘will say’ report. So, in Ireland, the distinction between an advisory report and an expert report just does not arise. All reports (good, bad, discursive, advisory or otherwise and which contain the substance of the evidence to be adduced) are disclosable if the expert is to be called as a witness. An expert report produced in response to the expert report of the other party is also disclosable. So, in Ireland, the better view is that the expert’s duty to the court arises at every stage.
The Pre-Action Protocol for Disease and Illness Claims (Vos 2019) sets out similar processes for claims involving ‘any illness physical or psychological, and any disorder, ailment, affliction, complaint, malady or derangement other than a physical or psychological injury solely caused by an accident or other similar single event’ whether or not in the workplace. Under this protocol, the letter of claim may, but need not, be accompanied by a medical report. It allows for medical reports to be obtained dealing with one or more of the following: knowledge, fault, causation and apportionment; condition and prognosis; and valuation of the claim.
Related posts:
Chapter 4 – Business Matters
Chapter 5 – The Medicolegal Consultation
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 12 – Reports in Immigration and Asylum Cases
Chapter 17 – Going to Court
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