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	Many liability issues in personal injury litigation claims need careful discussion with experts.
Posted By : Bill On 10/05/2016 10:30:00
I had an example recently in a clinical negligence claim; the detailed report examined all aspects, apparently, and concluded that there had been no breach. Because the solicitor was worried about the conclusion, we had a telephone discussion with the expert, and discovered that there are two very realistic areas of further investigation, neither mentioned in his report. They may come to nothing in the end, or they may be negatived by impossible causation, but at least we will have done our duty to the claimant and his family. Generally, face to face is better, but in this case we got what we needed on the phone, so that is a much cheaper solution at this stage. Once you know that you can't really rely on the expert, though, you may need to see him or her to assess whether they will continue to be unreliable.

	How to Manage Successful Non Court Resolution conference
Posted By : Bill On 19/04/2016 11:30:00
I had a great day in London this week; an all day conference with UKABIF entitled “How to Manage Successful Non Court Resolution”. It was based round my suggested scheme of neutral facilitation, but covered far wider topics. Our key speaker was Sir Alan Ward, formerly Lord Justice Ward, now the Chairman of the Civil Mediation Council. He was very entertaining and informative, the message being that the courts may not be the best way forward in dispute resolution. In my world of catastrophic brain and spine injury, lawyers on both sides have made that discovery, which is why we settle most of our claims. We were also delighted to have a wide range of other excellent speakers; Heather Batey, a rehabilitation expert, Jody Warner-Rogers a paediatric neuropsychologist, Professor Barnes a rehabilitation expert, and two defence practitioners, one a solicitor and the other who works for a major insurer.

	Easter holiday thoughts!
Posted By : Bill On 12/04/2016 11:15:00
I know it’s sad, but I spent some of my Easter holiday thinking and writing about clinical negligence, and up-dating my databases. The latter is really interesting, because, if you search carefully, you find all sorts of interesting things! For example, I came across the following recent comments about experts: I regret to say that in my judgment Mr A was being disingenuous. An expert’s obligation to the Court is clear: see the decision of Creswell J in The Ikarian Reefer [1993] 2 Ll. Rep 68, as summarised in note 35.3.3 of Volume 1 of the White Book. In my judgment, Mr A has failed to give objective and independent evidence to the Court on a number of important matters. I direct that the Defendant’s solicitors should send him copies of my judgment and the relevant extract from the Supreme Court Practice. In my judgment, the Claimant’s experts were neither impressive nor objective The Claimant’s midwife expert, Mrs B, seemed overly keen to find arguments to support the Claimant’s case. She sought (unfairly) to nit-pick at the care given…. She also sought to argue (disingenuously) that it was rare for babies to rotate from “OA” to “OP”…. The Claimant’s obstetrics expert, Mr C, was a most unsatisfactory expert witness. He appeared to forget his duty to the Court and seemed illegitimately to stray into creative advocacy for the Claimant’s cause. He tailored his evidence to argue the case…. He came up with the (tortuous) suggestion that…. Perhaps most breathtakingly of all, Mr C suggested that…. This suggestion flew in the face of common sense, as well as the views of the Claimant’s original expert…. The Claimant’s paediatrics expert, Dr D, appeared all too willing to step outside his area of expertise in a manner which suggested that he, too, had forgotten his duty to the Court. He saw fit to align himself uncritically with the Claimant’s obstetrics expert on all matters. He sided with Mr C’s (incorrect) assertion that…. He agreed with Mr C’s (ill-judged) assertion that…. I gave my first lecture about the selection of experts over 20 years ago, emphasising the importance of knowing their true abilities, and nothing has changed. I believe (hope?) that barristers are good at this, because we are so focussed, even now, on the adversarial nature of evidence. This remains true, I think, even though so few major personal injury, including clinical negligence, claims go to trial.

	Clinical negligence claims and legal aid
Posted By : Bill On 21/03/2016 15:30:00
There was a clinical negligence case reported earlier this year in which the claimant had switched from legal aid to a CFA (“lite”) with ATE. The Master decided that the decision to change was not reasonable, and that therefore the success fee (67% for the solicitors and 25% for counsel) and the ATE premium were not recoverable from the defendant. It’s really not surprising when you look into the facts. Liability was not admitted, and a major reason for change was to allow the claimant team to gather quantum evidence, even though they assessed the prospects of success on liability at only 60%. In addition, they did not have evidence that there was an urgent need for an interim payment (the reason given for early quantum evidence).

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