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Case Report : Part 35 Questions
IN THE MANCHESTER COUNTY COURT No. 5MA12802 BETWEEN: RUSSELL SHAUN HORSEFIELD CLAIMANT and SALFORD ROYAL NHS FOUNDATION TRUST Interlocutory Judgment District Judge Griffiths CASE REPORT : PART 35 QUESTIONS The Claimant brings an action against the hospital because he alleges that there was a delay in the diagnosis of his condition of chronic mesenteric ischaemia when he was a patient at Hope Hospital in 2002. Breach of duty is denied. The claim progressed to the exchange of expert witness reports. There were 7 expert witnesses on each side and some very lengthy reports were served. The Claimant served draft Agendas for the expert meeting which had been prepared by Counsel in order to obtain the Defendant’s approval or for them to add any questions where appropriate. The Defendant’s solicitors however sent detailed questionnaires to 5 of the Claimant’s medical experts purportedly pursuant to Part 35 which allows questions to experts for the purpose of “clarification”. The Defendant’s solicitor said he was unable to agree the Agendas until the questions had been answered. The Claimant therefore took out an application for an Order that the Defendant’s questions should be disallowed and asking for guidance on the purposes of the Agendas. Part 35.6 directs that questions to experts may only be put once, that they must be put within 28 days of the service of the report and must be for the purpose only of clarification of the report. No application was made by the Defendant to relax the restrictions and the Claimant certainly did not agree to do so. The numbers of questions to the experts ranged between 7 and 23 and in all the cases the questions were sub-divided into other questions. Objections to the questions were in part taken because some of the experts had complained to the Claimant’s solicitor that they were excessive and would require considerable time and therefore costs to answer. Such costs would have to be met by the Claimant. The Claimant’s solicitor raised objections on the grounds that the questions were not seeking clarification; that some were intended to get the experts to change their minds and that some were more a means of cross-examination. Questions of this type are expressly excluded without the Court’s leave, according to paragraph 35.6.1 of the White Book. Following two requests from the Claimant’s solicitors for the Defendants to reconsider the position, the Defendant’s solicitors wrote to the Claimant’s solicitors on a “without prejudice” basis agreeing to reduce the number of questions to between 3 and 7 for the various experts. District Judge Griffiths stated in his Judgment that the solution to this matter lies in agreeing the Agendas. He criticised the Defendants for their failure to co-operate in the drawing up of the Agenda as is required by paragraph 18.5 of the Protocol for the Instruction of Experts. This created delay where there had been none of significance. He regarded few of the questions as in fact seeking clarification and indicated that he would disallow the majority as they did not amount to clarification, were of there nature of cross-examination or were covered in the Claimant’s proposed Agenda. He went on however to disallow all the questions to the doctors because he said they could be included in the Agendas which needed to be urgently agreed. He found that it would be a disproportionate use of available time to require the answering of the questions, particularly in view of the pending trial. He found himself to be persuaded by the Claimant’s argument that it was disproportionate to ask such questions and stated that the proper approach is to add them to the Agenda. He stated that “clarification” is not defined in the rules because “it does not need to be as it is a word in everyday use. It means making clear. If therefore there is something in a report which is not clear, the party may ask questions to resolve the obscurity.” He had applied this definition when disallowing the majority of the remaining questions. The Defendants were ordered to pay the costs arising out of the application in any event. Case Comments It was estimated that if the Claimant’s experts had replied to the Defendants lengthy “Part 35” questions, the Claimant may have been faced with disbursements from the expert witnesses in the region of £6,000.00 to £7,000.00. The questions clearly amounted to “cross-examination” and went far beyond the meaning of the word “clarification”. This approach was clearly a tactic of the Defendants and is known to have been used on other occasions. Experts do of course have a right to seek clarification from the Court when such questions are raised with them but the co-ordination of this process by all 5 experts would undoubtedly have added yet more time to the case. An application was used to co-ordinate the experts’ concerns. An Order for wasted costs against the Defendant was requested (but refused) on the grounds that their approach was so unreasonable that it amounted to a breach of the Defendant’s solicitors duties to the Court, but it is contended that if the Defendants were to raise similarly extensive Part 35 questions in the same manner in the future in full knowledge of the Court’s criticisms of their approach in this case, then the possibility of obtaining such a costs Order would be greatly enhanced. Sadly, not only did Defendants incurr a great deal of costs which will have to be paid for by their client hospital Trust, but they also caused immense delay in the timetable which will of course put pressure on everyone as the matter proceeds to trial. Hopefully this Judgment will discourage Defendants from using this tactic to intimidate Claimant’s expert witnesses or to increase the disbursements that are required to be paid out by the Claimant. The Civil Justice Council are currently considering Part 35 questions and the preparation of Agendas. Solicitors for the Claimant : Solicitors for the Defendant :
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