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Articles | Fri 6th Jan, 2023
In cross-border multi-track cases, CCMCs are likely to require some more careful thought and preparation than in comparison with a CCMC in a standard personal injury or clinical negligence claim. Cross-border claims are often governed by local standards in a different jurisdiction, or the applicable law of the claim may not be English law (and indeed, the claim may be governed by an international convention). That, coupled with witnesses being located outside of England and Wales, may present an additional layer of complexity for practitioners. For example, it is not unusual for requests to be made by a defendant for a date for disclosure to take place some months after the CCMC, as disclosure requests often require the cooperation of organisations abroad. The COVID-19 pandemic has undoubtedly hindered the speed at which disclosure can take place in these claims, which is more commonly leading to judges building in extra time into proposed directions.
It is likely that multiple expert reports will be requested by both parties at the CCMC to resolve certain issues in the proceedings, be it the local standards to be applied, liability and quantum under the laws of a different jurisdiction, and the claimant’s condition and prognosis in respect of their injuries. It is important to bear in mind however that some judges may not be as familiar with claims of this nature, such that some assistance may be required to explain why foreign law or local standards reports are reasonably required to resolve the proceedings (if the need for such a report is contested).
Where matters may become somewhat more complex is in relation to the request by a party for permission for their foreign expert to instruct a medico-legal expert to assist them in the completion of their report. Taking the example of a claim where French law applies, a French lawyer instructed by the claimant to comment on liability and quantum may not wish to express what the consolidation date may be in respect of the claimant’s injuries, such as to give a figure for quantum under French law. This is because the French legal system operates in a way that ordinarily leaves such matters to a French medical expert, rather than to a French lawyer. The French lawyer may therefore express to those instructing them that they require the assistance of a French medico-legal expert to complete their report, as they may not feel able to comment on the English medical evidence. This situation is arguably difficult, particularly in the light of Wall v Mutuelle de Poitiers Assurances  EWHC 53 (QB). One issue that arises is that any assistance from a medico-legal expert to plug gaps in another’s report would defy the requirements of CPR Part 35. The report would plainly not be independent; thus, a judge may be unlikely to grant permission in this respect. Of some concern is that the expert would be including within their report matters which are outside of their expertise, which could lead to difficulties in cross-examination of that expert at trial. Further, as was made plain in Wall, a court does not need to reach an identical conclusion in respect of the damages that would be awarded by a foreign court. If practitioners face this situation, some reassurance may need to be given to the expert that commenting on English medical evidence, so as to inform the court of an appropriate award for quantum under French law, falls within their role as a CPR Part 35 expert. Alternatively, recourse could be made to the English medical experts to attempt to obtain the answers the lawyer seeks via Part 35 questions.
It is also important to consider in advance of the CCMC whether the experts or lay witnesses are going to need to attend trial, and whether any such attendance will take place via remote means. Despite the technological advancements that have been made by HMCTS, it still should not be assumed that certain court centres will have the facilities available to conduct a hybrid trial. This may result in the trial being transferred at the CCMC to an alternative court centre that will have the facilities to accommodate the trial. It is worth bearing this in mind, as the nearest suitable court centre may be some distance away. Further, if witnesses are to give evidence remotely, it is crucial for practitioners to be aware of the requirements laid out by Practice Direction 32 in advance of the CCMC, so that the proposed directions adequately reflect this.
In my talk at APIL’s accidents abroad conference in November 2022, I will be speaking further about cross-border CCMCs and will share some insight into how to get the best for your client, preparation for the CCMC itself, and costs budgeting.
I look forward to meeting you at the conference!
This article was first published in PI Focus, November 2022.