The Dekagram 23rd January 2023

Articles, News | Mon 23rd Jan, 2023

It’s been another busy week at the coalface. The High Court, in Arthern v Ryanair [2023] EWHC 46 (KB), gave further guidance on the interpretation of ‘accident’ within the meaning of the Montreal Convention, together with an exposition on how the domestic courts are likely to approach the recent decisions of the Court of Justice of the European Union on the subject. The government kicked off another consultation, this time into how a dual or multiple personal injury discount rate might work and what its effects on claimants and defendants might be (Personal Injury Discount Rate: Exploring the option of a dual/multiple rate – GOV.UK (www.gov.uk)). The Department for Transport announced that it intends to introduce legislation to address the dangerous misuse of watercraft such as jet skis, granting the Maritime and Coastguard Agency more powers to prosecute perpetrators of accidents, and ensuring that anyone riding a jet ski recklessly or causing harm to others could face up to two years in prison and an unlimited fine. The CJEU decided that rather than anonymising names of parties by allocating letters to them it will now give them randomly allocated names, prompting the team to ruminate on what unintended consequences may follow. And the REUL Bill (Retained EU Law (Revocation and Reform) Bill 2022-23 (HC Bill 204) | Westlaw UK) passed through the House of Commons with no amendments. The domestic courts and the CJEU have also been busy, as the articles this week demonstrate. As if all that were not enough, on 1^st February Dominique Smith and our friend and colleague Matt Gatenby of Travlaw will be co-presenting a webinar on health tourism, which promises to be of interest to all those undertaking work in this growing field. And who better to learn from than the doyenne of the discipline, whose book on the subject is about to be published? Sign up here: Dekinar: Health Tourism – Implications for Claimants and Defendants – Deka Chambers – Barristers’ Chambers

Experts and Factual Evidence: a Short Case Study

The issue

As practitioners doubtless will be aware, CPR32.2 provides that ‘the general rule is that any fact which needs to be proved by the evidence of a witness’ is to be proved by that witness giving oral evidence at trial or, at any other hearing, ‘by their evidence in writing.’  CPR32.4 goes on to provide that ‘a witness statement’ contains the evidence the witness would be allowed to give orally and that the court will order parties to serve witness statements in relation ‘to any issue of fact’ to be decided at the trial.  And, of course, all practitioners will be aware of CPR32.10 and its sanction for failure to serve witness evidence.

So, on its face, the CPR requires any disputed fact to be proven by a witness, in respect of whom a witness statement has been served.

But what about experts?  Experts’ reports almost always contain factual evidence.  Medical experts, for example, will recount what the Claimant told them during their consultations.  The CPR anticipates that experts will give factual evidence.  This is clear from the statement of truth that must be included in every report, which requires the expert to swear that she has made clear which facts in her report are within her own knowledge and that those facts are true.  Whilst it might be thought that the types of facts being referred to in the statement of truth are matters of fact specially cognisable by them, for example the meaning of technical terms or the conditions revealed by an autopsy or on an MRI scan, this is not the case.  As the authors of Phipson on Evidence note in para 33-103 of their book, experts may prove ordinary facts, not as experts, but as ordinary witnesses.  But how far can an expert go in their report, the primary purpose of which is to provide the Court with opinion evidence on matters on which expertise is required?

This question arose in a case I was instructed in recently, in which the scope and extent of the factual evidence an expert can give was in issue.

The facts of the case

First, some background.  The Claimant suffered a head injury in a road traffic accident.  As is often the case, the main dispute in the case centred around the extent and severity of any brain injury sustained, and whether his ongoing symptoms were organically or psychiatrically mediated.  It was the Claimant’s case both that his ongoing symptoms affected the amount of work he could undertake and also created a need for ongoing support.  He was a single man, and some of that support was provide by his work colleagues.  The Claimant lacked insight into his condition, and so could not give a good account of the support he received.  He had, though, served a witness statement from one of those work colleagues in accordance with the Court directions. 

Eighteen months passed, and it came time for the care experts to finalise their evidence.  The Claimant’s circumstances had changed somewhat, with him reducing his hours at work.  Wishing to appraise herself of the current situation, the Claimant’s care expert took it upon herself to contact the work colleague direct for an update.  The expert’s report contained an account of what the witness had told her.  Upon being served with the report, the Defendant invited the Claimant to serve a redacted version, in which the work colleague’s account and any conclusions based upon it reached by the expert were removed.  The Claimant declined the invitation, stating:

1. The account of what the work colleague had said was simply hearsay, and not inadmissible per se (Civil Evidence Act 1995).
2. Experts’ reports regularly contain hearsay accounts of what witnesses have said.
3. Most frequently, those accounts are of what the Claimant had said during consultations, but regularly include statements from family members or other witnesses.
4. There is no evidential distinction between a statement made by a Claimant and any other witness.
5. The cardinal principle of admissibility of evidence was relevance (Vernon v Bosley [1994] PIQR P337).  The statement of the colleague was relevant and so should be admitted.
6. It would be a matter for the trial judge as to what weight to place on the statement, and when doing so, they would have regard to the circumstances in which the evidence was obtained (Hoyle v Rogers & Anor [2014] EWCA Civ 257).

Not satisfied, the Defendant applied to Court to have references to the care expert’s interview with the colleague, along with any opinion informed by that interview, excised from her report.  It contended that:

1. The Claimant’s expert had conducted an impermissible fact-finding exercise.
2. The Claimant was trying to adduce further witness evidence, out of time, via the back door.
3. The evidence was insufficiently cogent to be admitted.
4. Inclusion of the evidence would put the Defendant at a disadvantage, because its experts had prepared their evidence on the basis of the served witness statements.
5. Permitting admission of the evidence would open the floodgates for experts to interview whomever they liked, whenever they liked, and lead to an unmanageable situation.
6. There was a distinction between a claimant and any other witness.

The submissions

There is a surprising lack of caselaw on this issue (or at least, my opponent and I could not find any).  The Defendant relied upon the obiter observations of Coulson J in Stagecoach v Hind [2014] EWHC 1891.  That case involved a claim brought by a train company for the cost of repairing damage caused to one of its trains by an ash tree that had fallen onto the railway from a property adjoining it. The claimant’s tree expert had attended the Defendant’s property and asked her some questions about the tree and her dealing with it during an informal conversation.  The expert’s recollection of that conversation appeared in his report.  The accuracy of this account was a significant issue at trial.  At the conclusion of the trial Coulson J held that the experts account was woefully inaccurate, before stating, ‘Save in exceptional circumstances, experts should not embark on this kind of fact-finding exercise, particularly when they perform it so unprofessionally.  Matters of fact are for witnesses of fact, not for experts.’ 

The Claimant relied on Moylett v Geldof & Anor [2018] EWHC 893.  In that case the issue for trial was whether a piece of music had been composed on piano or guitar.  Expert evidence was adduced on the issue.  The Claimant’s expert included in his report evidence of him having arranged for and then observed two professional guitarists demonstrating playing the piece of music in question.  He then went on to record both guitarist’s spontaneously given opinions as to whether the piece was likely composed on the piano or guitar.  The Defendant applied to excise those passages from the report.  In refusing the application, Carr J held that the expert was perfectly entitled to arrange for the two demonstrations from the guitarists and record that he had done so.  With regards the expert’s evidence about the comments made by the guitarists, Carr J held that this was ‘on the margins of admissibility’.  The reason for this was because the opinions of the guitarists probably was inadmissible, but in the case the Claimant was not seeking to rely upon their opinions and neither was the expert.  Carr J also held, though, that the fact the guitarists made those statements was admissible and was properly recorded by the expert in his report, in case he was cross-examined about what was said.

It is hard to reconcile Coulson J’s obiter comments with the fact that medical experts regularly undertake just the kind of fact-finding exercise he was so critical of and the fact that what was said to an expert regularly forms part of a witness’s cross-examination.  Perhaps the distinction might be that a medical expert, by necessity, has to ask the Claimant about their symptoms; whereas an arborist does not necessarily have to make enquiries of a homeowner to establish the state of a tree.  But that is not a distinction that I feel has cogency.

The outcome

The matter came before first Master Thornett and then Deputy Master Toogood.   Ultimately, the Court accepted the Defendant’s submission that it was improper for the work colleague’s further evidence to be adduced in this way.  However, on the issue of whether the care expert was entitled to speak to the work colleague, the two Masters took differing views.  During the first hearing the Court expressed the preliminary view that an expert was entitled to speak to a third party if they felt it relevant for the purposes of preparing their report.    However, that Court was concerned not to allow another party to be taken by surprise or put at a disadvantage, and adjourned the hearing so that the Claimant could make an application to adduce a further witness statement from the work colleague.  At the reconvened hearing, the Court took a slightly different view.  It expressed the obitaer view that experts should express their opinions only on the facts available to them and, if more information was required, they should seek it from their instructing solicitor.  This was necessary to ensure that experts on both sides gave evidence on the same basis.  Moreover, the Court was concerned to ensure fairness between the parties and felt it unfair to the Defendant that its experts would have prepared their reports without being privy to the work colleague’s further evidence.  Proper case management required that factual evidence as adduced in the proper form.  The Court felt that there was a distinction to be drawn between a care expert interviewing the Claimant and her family, and the expert taking it upon herself to interview someone neither the Claimant nor the Defendant expected her to.

As said, the Claimant made a cross-application to adduce a further witness statement from the work colleague, and for consequential directions for addendum reports from the experts whose opinions might be affected by the evidence.  This meant the Court did not have to decide whether the care expert had acted appropriately or not, or whether the potentially offending passages of her report should be excised.  Rather than strike out parts of the Claimant’s care expert’s report, the Court allowed that application.  In some ways, the Defendant scored an own goal.  Having wished to have the evidence excluded, it succeeded in allowing the Claimant to admit the work colleagues evidence in a far more cogent fashion.  However, the Claimant was ordered to pay the costs.

Comment

From a practical perspective, then, should practitioners find themselves in a similar situation as the Claimant, a simple solution would be to ask the expert to remove the offending passages from their reports before service, and put from their mind anything said by the witness.  However, the fact that their expert has acted in this way should inform practitioners that there is a gap in their client’s evidence.  If practitioners wished to plug that gap, I would suggest:

(a) immediately obtaining a witness statement from the factual witness interviewed by the expert;

(b) serving it with the expert’s report; and

(c) inviting the other party or parties to send it to their experts so that they can prepare a short addendum dealing with it.

It would be wise to ensure that any witness statement does not deviate from what the witness said to the expert.  Of course, if the other party refuses, an application for permission to rely upon further witness evidence should be made.  The application would not strictly be one for relief from sanctions, but I would suggest the evidence in support of the application addresses the factors mentioned by the Court of Appeal in Denton v TH White [2014] EWCA Civ 906.

Of course, practitioners may face difficulties identifying precisely when it is necessary to adopt this approach.  The work colleague’s evidence was relevant and, whilst contained as hearsay in the care expert’s report, it was not in character different to the hearsay account in the Defendant’s care expert’s report of what the Claimant said to her.  Where the distinction lies between what is admissible and what is not has not, to my knowledge, been defined. 

To my mind, though, the real mischief in the case was that the new evidence came unexpectedly, from an unconventional source, outside of the Court timetable and at a late stage in proceedings.  It left the Defendant with little opportunity to address or consider it, and probably would have placed its care expert at a disadvantage during joint statements.  It is hard to imagine any objection could have been sustained if the hearsay account had been contained within a report served with proceedings.  But, once proceedings are commenced, case management would become impossible if the parties and the Court cannot reasonably anticipate when the evidence will be served or if experts regularly took it upon themselves to conduct fact-finding exercises.

Practitioners should ensure, then, that their experts are provided with all pertinent evidence before completing their reports, and be prepared to obtain further witness evidence themselves if necessary to do so.  As said at the start of this article, the general rule is that facts are proved by witnesses, not experts.

Footnote

When preparing this article, I came across two further cases that were loosely on point

The proposition that there should be no restriction on what factual evidence can be contained in an expert’s report might find support in the judgment of Master Matthews in Darby Properties Ltd v Lloyds Bank Plc [2016] EWHC 2494.  In that case, at paragraph 41, the learned judge held, ‘So far as I can see there is nothing in Part 35 to restrict factual evidence, whether given by an expert or not.’ The judge continued, at paragraph 44, that an expert giving factual evidence as to something observed or experienced directly by them would be able to do so without reference to Part 35 of the CPR because it would not be expert opinion evidence at all.

In Brown v Mujibal (4^th April 2017 unreported) HHJ Gargan sitting as a High Court Judge held that the power of the Court contained in CPR 33.4 to call a witness for cross-examination on hearsay evidence (which derives from section 3 of the Civil Evidence Act 1995) extended to allowing a Defendant to cross examine a brain damaged claimant on the statements he made to medical experts.  It had been the Claimant’s intention to rely upon the hearsay contained in the reports as her evidence as to the effects of her symptoms, and she had not served a witness statement.  I mention the case simply because at no point did the question arise as to whether it was proper for the experts’ reports to contain such hearsay.

About the Author

Simon Brindle was called in 1998 and is listed for his personal injury work in Chambers & Partners and in the Legal 500. He undertakes work in personal injury and clinical negligence and accepts instructions from both Claimants and Defendants.

Editor’s Comment

This article will be of particular interest to cross border specialists who regularly instruct local standards experts. It is not unknown for such experts to undertake their own investigations into matters such as the date of hotel construction, and even, on occasion, accident circumstances; Simon reminds us that these investigations are not without their perils and that in all cases experts should be careful not to stray outside their expertise into giving evidence of fact rather than opinion.

Providing the Clarity we Didn’t Know was Needed about Package Holidays: as long as it’s not your fault, you are entitled to a price reduction for a lack of conformity

In confirming what most of us would thought was obvious, the CJEU has held that travellers whose package travel has been affected by measures put in place because of the Covid-19 pandemic may be entitled to a reduction in the travel price.

Factual background

The Claimants had booked a two-week package holiday to Gran Canaria from 13^th March 2020 to 27^th March 2020. On 15^th March 2020, the Spanish authority adopted measures across Spanish territories in response to the Covid-19 pandemic. These included the closure of beaches in Gran Canaria and the application of a lockdown on the island. This meant that the Claimants were only allowed to leave their hotel room to eat, access to the swimming pools and sun loungers was prohibited, and other entertainment activities were cancelled. On 18^th March 2020 the Claimants were told that they should be ready to leave the island at any time, and on 20^th March 2020 they were required to return to Germany.

The Claimants then sought a 70% refund in the price of their trip, which the operator refused on the basis that it considered it could not be held responsible for what constituted a “general life risk”.

Article 14 of Directive 2015/2302, entitled ‘Price reduction and compensation for damages’, provides:

1. Member States shall ensure that the traveller is entitled to an appropriate price reduction for any period during which there has been a lack of conformity, unless the organiser proves that the lack of conformity is attributable to the traveller.
2. The traveller will have the right to receive adequate compensation from the organiser for any damage or loss suffered as a result of any lack of conformity. The compensation will be paid without undue delay.
3. The traveller will not be entitled to compensation for damages if the organizer demonstrates that the lack of conformity:

a) is attributable to the traveller;

b) is attributable to a third party unrelated to the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable, or

c) is due to unavoidable and extraordinary circumstances.

At first instance, the German courts dismissed the claim on the basis that the measures in place were required of the hotel by the Spanish authorities, and therefore could not lead to a “lack of conformity”. The Claimants then appealed to the referring court. That court considered that a tour operator could be liable for the application of health protection measures. However, it considered that since those same measures had also been adopted in Germany, they could be considered “common circumstances” imposed throughout Europe, and not extraordinary circumstances specific to that place or destination.

It therefore asked the CJEU for a preliminary ruling on the following question:

“Do restrictions imposed because of an infectious disease prevailing at the place of destination constitute a lack of conformity within the meaning of Article 14(1) of Directive 2015/2302, even where, due to the global spread of the disease infection, these restrictions were imposed both in the place of residence of the traveler and in other countries?”

Decision

The CJEU confirmed that a traveller is entitled to a price reduction where the travel services provided do not comply with those contracted for, with the single exception in the case where the lack of conformity is attributable to the traveller. The only questions that need to be asked are:

1. Has there been a lack of conformity of the services provided?
2. If so, was the lack of conformity attributable to the traveller?

In reaching that conclusion, it provided a basic lesson on interpreting EU law in reaching an answer, confirming it is necessary to take into account not only the terms used, but the context, objectives pursued, and, where appropriate, its genesis.

The Court also went on to confirm:

(1) Literal interpretation

• The Court held that the wording of the provision was clear: where there has been a lack of conformity, the operator is liable unless it is attributable to the traveller.
• “Lack of conformity” is defined as the non-execution or incorrect execution of travel services included in a package trip. A finding of a lack of conformity therefore only requires a comparison between the services contracted for and those actually provided.
• Therefore, a traveller is entitled to a price reduction when the services received are different to those provided, provided that the traveller himself is not the cause of the non-conformity.

(2) Context

• The Court then went on to note that the Directive had the effective of imposing strict liability on package travel operators, regardless of whether the operator was responsible for carrying them out.
• Therefore, the Court found that the context of the provision supported the literal interpretation.

(3) Objective

• The Court held that the objective of the Directive was to ensure a high level of consumer protection, and that the teleological interpretation also supported the literal and contextual interpretations.

(4) Genesis

• Finally, the Court also highlighted that the genesis of the Directive supported the conclusions already reached. The initial proposal for the Directive had provided for the same exceptions for price reduction and compensation for damages. The latter had changed during the legislative procedure to include additional exceptions such as unavoidable and extraordinary circumstances.

The Court also went on to confirm:

1. It will be for the domestic courts to assess whether there has been a lack of conformity with reference to the contract;
2. The reduction in price must be adequate for the entire period of non-conformity.

The traveller is under an obligation to notify the organiser of a lack of conformity without undue delay, and failure to comply may be taken into account when determining the price reduction if notification would have limited the duration of the non-conformity.

About the Author

Kerry Nicholson takes instructions across all of chambers’ core areas. Prior to joining 1CL Kerry worked for the Government Legal Department working across a variety of departments in both litigation and advisory roles. She now enjoys working within the team on travel related and other claims.