Scope of an Expert’s duty
The main action involved a claim for alleged professional negligence on the part of solicitors and/or counsel in undersettling a personal injury action brought by the Claimant arising out of a serious brain injury sustained by him in 1993.
During the course of that action, the Claimant’s solicitor (“Penningtons”) commissioned a report from Gwen Watkins of Jacqueline Webb and Co. to provide an assessment of case management needs and past and future care requirements.
Gwen Watkins provided a report stating, amongst other things, “Mr Warner’s quality of life will have reduced without regular support and funds should be made available as a matter of priority to ensure that a new care regime can be established”.
Gwen Watkins had, in fact, also highlighted the importance of lay witness evidence and of obtaining various medical reports and evidence.
Proceedings were issued by Mr Warner against Penningtons who then sought to join Counsel and Jacqueline Webb to the proceedings.
As against Jacqueline Webb, Penningtons alleged that Gwen Watkins:
Failed to advise that a support worker and/or case manager should be employed prior to trial or settlement of the action;
Having met with the Claimant and having considered the medical reports, failed to advise the Defendants to obtain further lay witness statements
Failed to have proper regard to the level of care needed by the Claimant in the future
Failed to take sufficient care in the preparation and provision
of her advice Jacqueline Webb sought summary judgment against Penningtons on the grounds that there was no real prospect of the case against them succeeding and an order striking the claim out on the basis of expert witness immunity. The latter point was stayed pending consideration of the immunity of Expert witnesses by the Supreme Court during 2011.
At first instance, the learned Judge concluded that there were no real prospects of Penningtons succeeding against Jacqueline Webb and thus the application for summary judgment succeeded.
Penningtons appealed to the Court of Appeal.
Did Pennington’s have real prospects of succeeding against Jacqueline Webb?
Following a review of the chronology of the case, Lady Justice Smith observed, as the date of the hearing, no criticism was made as to the thoroughness of the preparation of the report or as to the general competence or care. It was clear from the correspondence that the solicitor at Penningtons was delighted about the report when he received it and indeed wrote to Gwen Watkins in glowing terms. Shortly before the trial Gwen Watkins had discussed the issue with her opposite number, Carole Fowler, and produced a joint schedule of figures for future care, some of which were agreed and some of which were not. They both noted that they had not seen Mr. Warner for some period of time prior to the joint meeting taking place.
Her Ladyship had regard to the witness statement that Gwen Watkins had prepared within the current professional negligence proceedings which stated that she would have assessed Mr. Warner’s care needs at a higher level had she seen a number of medical reports and witness statements which she had not seen at the time of preparing her original report. In that witness statement she also drew attention to a passage in her original report where she had said that a care regime should be established as “a matter of priority”. She stated that she had in mind that establishing a care regime immediately would reveal Mr Warner’s true requirements more accurately and satisfactorily than her theoretical assessment could achieve.
Jacqueline Webbs’ case was, effectively, that Gwen Watkins had done all that could reasonably have been expected of her in her capacity as a care expert to advise Penningtons of the need for a care regime to be set up prior to trial. They argued that she was entitled to assume that Penningtons would realise that they should obtain an interim payment to instigate the regime straightaway. They argued that it was not her job to ensure it had been done. Penningtons, on the other hand, argued that any reasonable solicitor would have understood the words to mean only that a care regime would have to be set up after trial or settlement. They sought to criticise Gwen Watkins for not having stated that her costings into the future were provisional and that by doing costings into the future she had given the impression that her report was final.
Her Ladyship held that the only matter to be decided was what the reasonable solicitor in the position of Mr. Mather from Penningtons would have understood from the words used in the report. Accordingly, Her Ladyship considered that it was not really a matter of how Mr. Mather understood it or indeed how the three barristers instructed in the case at the time understood it but what the meaning of the words were on an objectively determined basis. Overall, her Ladyship considered that the report was clear. Whilst it was true that there were costings into the future without any suggestion that a review was needed, Her Ladyship considered that she would have been expected to provide them and the expert would have expected to do so too. Firstly she would have done just that unless she had not had enough material to even make an attempt. Secondly, some idea of future costings would have been necessary in order to found an application for an interim payment. Overall, the words used by Gwen Watkins conveyed, with reasonable clarity, the advice that a care regime should be set up in advance of trial. Whilst she may have expressed herself with even greater clarity, that was different from saying the report would not have conveyed to a reasonable solicitor who read it carefully that he was to make funds available without delay to set up a regime as soon as practicable and in any event prior to trial. To that end Her Ladyship agreed with the judge at first instance and the appeal was dismissed.
It was reaffirmed that the Expert must use reasonable skill and care in forming their views and even in identifying areas where further evidence should be obtained. However, they are entitled to assume their recommendations will be taken on board and, if necessary, actioned by their instructing solicitors who are tasked with progressing the litigation.