New rules of court which came into effect on Monday, 1st September, will dramatically change the way in which High Court personal injury actions are run. If they work, the changes could lead to lower insurance premiums, and less inconvenience for witnesses. The rules apply to all types of personal injury cases, including medical negligence and product liability claims.
Up to now, persons in a court action had no way of knowing what witnesses were going to be called at trial by the other party. Also, they did not know what the other party's doctors, engineers and other experts were going to say in court. This made it difficult for defendants' lawyers and insurers to assess claims and what a case was worth. It also led to extra costs, and disruption to witnesses, as too many cases settled at the door of the court or, indeed, during trial, rather than months or years earlier.
The new rules direct that a plaintiff in a High Court personal injuries action must give copies of the expert reports of all the doctors and other experts whom he intends to call at trial to the defendant's lawyers within three months of serving notice of trial.
This means that the defendant's lawyers will see the plaintiff's experts' evidence many months before trial (and before the plaintiff's side sees the equivalent defence evidence). With this information the defence will be able to assess better whether a claim is justified. The only type of report which is expressly excluded from compulsory disclosure is private investigators' reports. The defence will have an obligation to forward copies of their experts' reports to the plaintiff's lawyers within three months of receiving the plaintiff's reports. Any reports received subsequent to this exchange of reports must also be exchanged.
The plaintiff's lawyers will also be obliged to give the defence lawyers months before trial the names and address of all witnesses they intend to call. They must also provide details (including vouchers) of medical bills and other expenses that the plaintiff is claiming, and a written statement showing all social welfare payments made to the plaintiff subsequent to the accident (or authorisation to the defendant to apply for such information).
Within two months of receiving this information the defendant's lawyers must supply details of the defence witnesses to the plaintiff's lawyers. A useful provision for cutting costs and avoiding inconvenience to witnesses is the rule that parties can be requested to admit expert reports and relevant evidence of financial loss in advance of trial.
Where such admissions are made, expert witnesses and other witnesses will not have to attend court to give the relevant evidence. The court may impose penalties where a party unreasonably forces his opponent to bring such witnesses to court.
Parties and their lawyers will ignore these rules at their peril. Where a party does not supply the reports or information required by the rules, the court may decide not to allow an expert to give evidence on behalf of that party. It may also strike out the defaulting party's claim and inflict cost penalties. An interesting provision could cost solicitors money. Where a solicitor unreasonably fails to comply or unduly delays in complying with the new rules, he may be ordered to pay personally the costs incurred as a result of the failure or delay.
Broadly equivalent rules in England have led to concerns by the judges there about "massaging" of expert reports, and this could be a problem here also. Under the new rules, each side will wish to exchange the most favourable written expert reports that they can obtain, so as to boost their chances of doing well in the litigation. As a result, doctors and other experts may find themselves under pressure from some lawyers to change aspects of their written reports (contrary to their judgement) to suit their client's case before these reports are exchanged. Yielding to such pressure could damage an expert's professional reputation if the weaknesses in a report were exposed on cross-examination in court. The expert could be accused of misleading the court. Therefore, doctors and other experts will have to continue to be careful to ensure that they can stand over every statement and opinion in their written reports.
Most lawyers and clients in personal injury actions will welcome the new rules. Although plaintiffs' lawyers will now have to show their hand in advance of a trial and will no longer be able to hint at favourable medical reports with a view to forcing defendants to increase settlement offers, by the same token plaintiffs with good cases will probably be able to obtain their compensation earlier. There should also be lower legal costs, and saving of court time.
The new rules apply only to personal injury actions in the High Court (that is cases with a value in excess of £30,000) but it is likely that the Circuit Court will introduce similar rules. These changes look like an important step to much earlier disclosure of evidence and streamlining of litigation. Hopefully, following the deliberations of the Courts Working Group under the chairmanship of Mrs Justice Denham, improvements in procedures will be introduced in all types of litigation cases in our courts as soon as possible.
