In this second instalment of our two-part article (part one is available here), International Injury partner Chris Deacon, with input from care expert and case manager Kay Taylor, explores five additional top tips, from assessment through to resolution, to help legal teams collaborate effectively with care experts and secure the best possible outcome for those living with life-changing injuries.  

1. Prepare your client, your expert and yourself for the expert assessment appointment

The pros, cons and suitability of remote versus in-person assessment need to be carefully considered.

As the instructing solicitor, you will probably not be attending, but this does not mean a passive role for the lawyer as the assessment date approaches:

• Prepare your client and anyone attending with them.
• Make sure anyone else the expert needs to speak to is available so that they can inform their evidence. This may include family members, but, importantly, also the rehabilitation case manager, who will no doubt be playing an integral role in the monitoring of the care package in place.
• Ensure the expert is provided with any updated material and has access to what you have sent:

1. 1. This will save time and costs, as the expert’s draft report will be based on the latest information and should have as sound a factual basis as possible when it is produced.
   2. It may also add considerably to the recoverable damages. In KTW v Meek & AXA [2024], the care expert had reported in April 2023 and then again, just five months later, in September 2023. During this short period, not only had there been a significant increase in care costs generally, but KTW had started to access the community more often, with a risk assessment revealing he needed double-up care when using his motorised wheelchair. By ensuring the care expert had taken these important changes into account, KTW received over £2.5m in additional damages.

As an expert:

• Prepare for the assessment and check the details as you go.
• Speak to the case manager if possible. In some cases, it is more appropriate to speak to the case manager or family without the client present. The expert should arrange follow-up calls as needed with these individuals.
• If there is a change, consider the impact on your opinion.

2. Leave plenty of time to refine and finalise the evidence

It is necessary to test your expert carefully before trial. This links back to planning; it can take many months to find time to get all the experts and legal team in a case together to discuss the evidence.

Be cautious when relying on untested opinions regarding heads of loss in any schedule of loss.

Ensure experts have considered, addressed and referred to relevant documents in their reports, including any updated information. Be sure to bring your opponent up to date with key disclosure if you know they are also obtaining expert evidence.

Beatty v Lewisham and Greenwich NHS Trust [2023] EWHC 3163 illustrates the risks of not checking on judicial criticism of the expert pre-instruction, but also how things can unravel at trial if the expert is not robustly tested on their evidence pre-trial. The case involved a claim arising from alleged negligent failure to investigate whether Ms Beatty had developed an embolism, resulting in a below-knee amputation. The claimant’s vascular surgeon expert, Mr John Scurr, was subject to extensive judicial criticism by Mr Justice Jay, who rejected his evidence, commenting that Mr Scurr:

1. was “combative in answering… perfectly fair and reasonable questions”
2. was “unacceptably terse”, with the judge observing: “An expert is required under the [Civil Procedure Rules] to set out the reasoning for his conclusions. This obligation exists even if the reasons seem blindingly obvious to the maker of the opinion”

• “betrayed at several points in his evidence a degree of partisanship which came close to advocacy”

1. failed to identify the key issue in the case and provide reasoning
2. reached an opinion in his written evidence without considering the defendant’s statement
3. had been the subject of prior judicial criticism in Kennett v East Kent Hospitals NHS Foundation Trust, in Canterbury County Court on 31 July 2018.

As an expert:

• Do your research, look at the context and consider the impact of:
  • Culture
  • Location
  • Supports available in the location where the claimant lives.

Remember, the expert’s duty is to the court to remain compliant. Mr Justice Cotter stated relatively recently in Muyepa v Ministry of Defence [2022] EWHC 2648 (KB):”Experts should constantly remind themselves through the litigation process that they are not part of the claimant’s or the defendant’s ‘team’ with their role being the securing and maximising, or avoiding and minimising, a claim for damages. Although experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any professional code, as [Civil Procedure Rule] 35.3 expressly states, they have at all times an overriding duty to help the court on matters within their expertise. That they have a particular expertise and the court and the parties do not … means that significant reliance may be placed on their analysis which must be objective and non-partisan if a just outcome is to be achieved in the litigation.”

Case conferences are valuable in understanding evidence and refining opinions.

Make sure your expert considers and explains any change of opinion where the evidence supports this, for example, moving from nursing care to healthcare assistant (HCA) support if there has been a positive change in the claimant’s care needs.

3. Scrutinise, ie compare your own expert evidence (again and again) and do the same when you receive the other side’s evidence

Has the other side’s expert read and considered everything of relevance?

1. How has the care expert dealt with issues such as statutory provision?

In Benjamin Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565, the judge was highly critical of the claimant’s care expert evidence relating to the claimant’s ability to provide care to his children and a review of statutory assessments as to the claimant’s care needs. The claimant’s expert still failed to address deficiencies in her evidence when given the opportunity by the judge during the trial. The case further underlines the importance of the expert being provided, in a timely fashion, with all relevant case documents.

Prepare a table with a side-by-side analysis of each side’s care expert evidence and recommendations, as well as the difference this makes to the overall damages claim.

1. You may be surprised at how much scope there is for agreement.

• It will help to narrow the issues and provide an understanding of what is genuinely disputed.

Get to work on bolstering the additional evidence needed to plug any gaps in your client’s case on their care needs. Ideally, this should be done before joint statements and certainly well in advance of the trial.

In Wilson v Ministry of Justice [2024] EWHC 2389 (KB), the claimant brought a claim for damages against the Ministry of Justice for the life-changing injuries he sustained when stabbed multiple times by another prisoner in the prison kitchen at HM Prison Chelmsford. Mr Wilson had an incomplete spinal lesion at T5 to T7, among other injuries, and so evidence was given by several experts.

• The judge heavily criticised the defendant’s expert spinal rehabilitation expert for being “a partisan witness who, unusually, agreed quite early on in his cross-examination … with the contention that he had lost all independence and objectivity in this case”. The expert subsequently conceded he was wrong.
• The defendant’s neuro-physiotherapy expert was also criticised. Despite having adopted a fair and independent approach in her initial report and joint statement, following service of surveillance evidence, she had veered into a partisan approach.
• The defendant’s accommodation expert had based his evidence on an inadmissible report from the spinal expert. Again, an earlier independent and fair assessment had been “corrupted” by influence from the defendant’s lawyers.

Having a deep understanding of the issues the other side faces with its experts could be a significant factor when assessing any offers to settle and the risks of taking a case to trial.

As an expert:

• Carefully consider what the other experts, the claimant and the defendant have proposed.
• Be aware as to why your opinion differs, considering in particular:

• Context
• Culture
• Intensity of needs and provision

4. Give clear instructions before any joint expert discussions and make sure the experts have plenty of time to complete their joint statement

The joint discussions of experts and their subsequent joint statement aim to assist the parties and the court with narrowing the issues in dispute. The experts should set out the areas on which they agree and those where they disagree, giving reasons for any disagreement. The discussions are privileged; the statement the experts produce is not. Importantly, the experts must engage in an actual discussion, not just a written back-and-forth.

Should you prepare an agenda for a joint discussion of the experts? There may be limited time to agree an agenda with the other party or parties. Experienced experts will know how to approach discussions, but an agenda (even if not agreed) may help focus the discussion on key issues when you are instructing your expert to prepare the joint statement.

In E&W, lawyers should not have any input in the preparation of the joint statement. In Glover and another v Fluid Structural Engineers & Technical Designers Ltd and others [2024] EWHC 1257 (TCC), a case involving a property dispute, the claimant’s expert sent drafts of the joint statement to the claimant’s solicitors who made comments and proposed amendments to the drafts. The claimants had to apply for permission to obtain and rely on a new structural engineering report, which proved to be a costly mistake.

The court said: “Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement.”

In CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2023] EWHC 1770, issues arose with an error in the care expert joint statement relating to waking night care. It is best to be candid and open if such issues arise.

As an expert:

• Prepare and know your and the other experts’ reports.
• Know why you differ.
• Know the issues.
• Consider any new evidence or reports. Does this change any of your opinions?
• Consider the range of opinions.

5. Present a robust, evidence-based pleading and understand the areas for concessions in negotiations

Most cases settle and do not go to trial. Therefore, be realistic. Critically analyse and challenge the expert’s assumptions, recommendations and costings before pleading the claim.

In Benjamin Scarcliffe v Brampton Valley Group Ltd [2023] EWHC 1565, Mr Justice Cotter noted: “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.”

To avoid such pitfalls, iron out any issues with your expert pre-negotiations (and certainly pre-trial). This should be done as you prepare the schedule of loss, when you receive the counter-schedule of loss from the other side, and as you prepare for the settlement meeting and advise your client on the reasonable range of outcomes (this applies to both sides).

A pre-settlement meeting conference call with your care expert can be invaluable. Use it to test their evidence and the areas you can push, as well as those you can potentially concede, in negotiations.

In particularly entrenched cases with issues such as double-up carer provision, think innovatively about how you might resolve the issues. For example, can your care experts be invited to have a without prejudice discussion and mini joint statement process focused on areas of contention to assist the parties in settlement negotiations?

It may sound obvious, but don’t forget to involve the client, their family and their case manager to get a realistic feel for what they might do in the future, as this will be highly relevant to determining the right outcome in negotiations.

This article was adapted from a presentation given by Chris Deacon and Kay Taylor at the PEOPIL RTA conference, Krakow, April 2025.

If you require assistance from our team, please contact us.