Expert reports must be critically analysed and fully justifiable, and not simply transposed into schedules.

SCARCLIFFE V BRAMPTON VALLEY (2023) EWHC 1565 ( KB)

“A care expert should be able to fully justify any aspect of care,
therapy or equipment which the court is being advised should be provided. The advice should be very carefully considered and automatically stress tested against the realities of life. Anything less is inadequate.” – Cotter J (§176).

The Claimant brought a claim for damages arising out of an accident which occurred whilst at work. Judgment was entered in favour of the Claimant, and the matter turned to the assessment of costs.

It was the Claimant’s case that the accident had caused the development of chronic post traumatic pain in the lumbar region, which was sufficiently disabling to be life changing. He claimed that he was unable to work, care for his children (save to a minimal event), assist with household duties and needs significant care on a daily basis. The schedule sought a total sum of £6,189,507.49. However, the amount awarded by the Judge was £275,063.03.

One of the reasons for the significant reduction, was that the evidence given by the claimant’s care expert gave the court some cause for concern.

• 167 Significant parts of her [the care expert’s] evidence were unsatisfactory and/or ill thought through. I find it very concerning indeed that such evidence underpinned a very large, and when properly tested, in part clearly unsupportable claim within the schedules.
•  168 The analysis of the complex issues in this case was not sufficiently thorough and matters which obviously required further investigation had not been followed up.

It became apparent the expert report made on behalf of the Claimant failed to address some of the key issues in the Claimant’s evidence, particularly with regard to apparent conflicts between the Claimant’s evidence and family assessment conducted.

• 176 In my experience the content of care reports is sometimes transposed directly into schedules and counter-schedules by lawyers with limited critical analysis or
  challenge. If care experts fail exercise the reasonable skill which can expected of
  those who hold themselves out as experts, and also do not fully abide by the well known requirements of an expert within litigation, this can lead to unrealistic
  valuations, which impede the just resolution of claims. 

Lawyers must first critically analyse an expert report, and give appropriate thought to whether the sums produced can be sustained when tested at trial, before using the (potentially) erroneous or inaccurate content from the reports in their schedules and counter schedules. The necessary critical analysis can apply to expert reports on both care and employment related damages.

A copy of the Judgment can be found here.

SANTIAGO V MOTOR INSURERS’ BUREAU [2023] EWCA Civ 838

In a fixed costs’ case (under CPR Part 45, Section IIIA) where the Claimant reasonably requires the assistance of an independent interpreter at trial, are the interpreter’s fees recoverable as a disbursement falling within CPR 45.29I(h)? Yes, contrary to the previous guidance of the Court of Appeal in Cham (A Child) v Aldred [2019] EWCA Civ 1780, they are now.

The Claimant, Mr Santiago, was a Brazilian national who speaks Portuguese and had a poor grasp of English. His witness statement was prepared in Portuguese and translated into English as required by CPR PD32 and in accordance with the court’s directions in any event. A suitably qualified, independent interpreter was properly instructed to provide translation services at trial. At the conclusion of the case, the Claimant sought to recover this disbursement as a “particular feature of the dispute” under CPR 45.29I(2)(h). At first instance, however, DDJ Sneddon felt constrained by the following comments of Coulson LJ in Cham (A Child) v Aldred [2019] EWCA Civ 1780 (emphasis added), “The fact that, in a particular case, a claimant is a child, or someone who cannot speak English, or who requires an intermediary, is nothing whatever to do with the dispute itself. Age, linguistic ability and mental wellbeing are all characteristics of the claimant regardless of the dispute. They are not generated by or linked in any way to the dispute itself and cannot therefore be said to be a particular feature of that dispute.”. The DDJ, therefore, did not allow the recovery of the interpreter’s fees but took the unusual step of granting the Claimant permission to appeal.

After Cham the question of interpreter’s fees had been considered by the Civil Procedure Rule Committee as long ago as March 2020 and they ultimately indicated that they intended to change the rules but three years later no further action had been taken and the new fixed costs regime from October 2023 onwards will not apply to any case involving a road traffic accident before then. Accordingly, HHJ Hellman also took the unusual step of expediting the case directly to the Court of Appeal using the ‘leapfrog’ provisions under CPR 52.23 and section 57 of the Access to Justice Act 1999.

The Court of Appeal handed down judgment on 13^th July 2023. In the leading judgment of Lord Justice Stuart-Smith, the Court distinguished the previous case of Cham (A Child) involving counsel’s fees for an infant approval, from the present situation involving the fees for an independent interpreter.

The Court of Appeal held that precluding the recovery of reasonably incurred interpreter’s fees would not be in accordance with the updated overriding objective because it would hinder access to justice by preventing vulnerable parties or witnesses from participating fully in proceedings and giving their best evidence, and would not ensure that parties are on an equal footing. The Claimant’s appeal, therefore, was allowed.

A copy of the Judgment can be found here.

Shannon Eastwood from Atlantic Chambers was junior counsel for the Claimant in this case, led by Ben Williams KC, and instructed by Bond Turner.