Very Late Applications for Expert Reports: The Key is ‘Significance’

In Knapman v Carbines [2020] EWHC 3586 (QB), HHJ Cotter QC considered the balancing exercise to be conducted upon a very late application to rely on an expert report.

The Context

Mr Knapman suffered a severe traumatic brain injury in a road traffic accident in 2013. Liability was admitted and a trial on quantum was listed over 10 days to commence on 13 April 2021.

The value of the claim was highly contentious. The Claimant initially valued the claim in excess of £12.5 million whilst the Defendant advanced a counter-schedule of just £130,000. The Defendant relied upon the Claimant’s pre-existing learning difficulties to argue that he would have required a significant level of care in the future, irrespective of the accident.

The parties were granted permission to rely upon a raft of experts, including neuropsychologists on both sides. Following the exchange of reports, a roundtable meeting was held on 31 March 2020 but no agreement was reached.

Immediately following that meeting, the Defendant unilaterally instructed Dr Wright, a neuropsychologist specialising in the management of young adults with learning disabilities. His report was received by early August 2020 and was sent to the Defendant’s existing experts for comment. At no stage during this process did the Defendant disclose the existence of the report to the Claimant or the court.

An application for permission to rely upon Dr Wright’s report was eventually made on 1 October 2020. The Defendant accepted that, if the Claimant was permitted to instruct an equally experienced neuropsychologist, and the other experts were permitted to comment upon the new reports, the existing trial window would be lost.

The Legal Test for a Very Late Application

HHJ Cotter QC considered the recent decision of Stewart J in T v Imperial College NHS Trust [2020] EWHC 1147 (QB), where it was said that a distinction must be drawn between ‘a late application’ and ‘a very late application’ to rely upon new expert evidence – the latter being one which imperils the trial date. There is a legitimate expectation that trial dates will be kept, particularly when the trial is lengthy and requires the attendance of numerous experts.

The Judge (at [15]) identified the factors to be weighed in the balance of a very late application as:

1. whether there was good reason for the late application,
2. the significance of the new material,
3. the prejudice to each party, and
4. the need to do justice to all the parties having regard to the overriding objective.

Applying the Test

HHJ Cotter QC observed that this was, indeed, a very late application: the Defendant had received a fully pleaded schedule in January 2019 and had been able to consider which experts were required at that stage; further, another expert had advised in September 2019 that a report from a specialist in learning difficulties might be of assistance. Despite this, Dr Wright was not instructed until April 2020 and his report not disclosed until the application was made in October 2020. The Judge found no reasonable explanation for this delay, instead observing that the Defendant had kept the issue in abeyance until after the roundtable meeting and, only then, made the “calculated decision” to instruct Dr Wright without notice ([19]). The delay in disclosing the report and making the application was one which weighed heavily on the exercise of the court’s discretion ([14]).

As to the significance of Dr Wright’s report, the Judge was not persuaded that it merited permission. It was not enough that the report would be ‘advantageous’ or ‘of value’; the proper question was “how significant is the proposed evidence for the determination of this case and the furtherance of the requirement to resolve it justly?” ([20]). The Judge considered that the existing experts’ reports had addressed the effect of the Claimant’s learning difficulties in some depth and that Dr Wright was, essentially, of the same discipline as the two neuropsychologists already instructed. The court would not be without expert evidence on the issue ([25]).

The Judge further found that the Claimant would be prejudiced by any additional delay, referring in particular to the effect upon the witness evidence and the witnesses themselves. As to the overriding objective, the loss of the trial date would lead to significant delay and a waste of court resources ([27]-[29]).

The Judge concluded that the significance of Dr Wright’s report was not such as to outweigh the other factors. The issue of the Claimant’s pre-accident functioning and abilities was one which could be properly explored through witness evidence and cross-examination, the existing experts’ reports and documentary evidence. The application was refused [31].

Comment

Where a party makes a very late application to rely upon an expert report, the significance of that report must be substantial if the application is to succeed. There is no fixed hurdle for ‘significance’; rather, significance is judged in the context of the entire case and the evidence already available to the court.

It is also clear that the court may explore whether the applicant has adopted a pro-active, ‘cards on the table’ approach to obtaining the report. If there has been a delay in instructing an expert, disclosing their report and/or applying for permission to rely upon it, this will weigh significantly in the exercise of the court’s discretion.