In 2019, Christopher Sharp, of St. John’s Chambers, produced a useful guidance note on proper conduct when preparing a joint statement, pursuant to the Part 35 regime. As part of this document, he summarised a selection of cases, which emphasised ‘worrying aspects’ of how experts and their instructing solicitors were approaching the exercise.[i]
One such case was that of Saunders v Central Manchester University Hospitals NHS Foundation Trust  EWHC 343, in which Mr. Justice Yip criticised a 60-page joint statement that did nothing ‘to agree and narrow issues’, as prescribed by Practice Direction 35 para 9.2.
Mr. Sharp synopsised that both sides had ostensibly ‘lost sight’ of the purpose of producing a joint statement, adding that:
‘It seems there had been two separate agendas with repetitive questions, rather than one agreed agenda. The solicitors had failed to co-operate and had descended into a proxy war over the issues’.
Fast forward in time to the recent decision of Aderounmu v Colvin [2021 EWHC 2293 (QB), and it appears that lessons have still not been learned by practitioners and their instructed experts.
For context, the claimant in Aderounmu presented to multiple GPs with severe headache symptoms, but was not referred for urgent investigations. He went on to suffer a stroke, leaving him with serious neurological impairment. When clinical negligence proceedings were issued, 8-years after the date of the injury, there were questions over whether the limitation period had expired, but the claimant averred that he lacked capacity to conduct the litigation, within the meaning of the Mental Capacity Act 2005, thereby rendering him ‘disabled’, for the purposes of s. 38(2) of the Limitation Act 1980. In the alternative, the claimant argued that he had not acquired s.14 actual or constructive knowledge of the defendant’s alleged failure more than 3-years prior to the date of issue. Discretionary exclusion of the ordinary time limit in respect of personal injuries or death was also sought, via s.33 of the 1980 Act, as a last-ditch attempt to allow the action to continue.
In May, the trial of limitation as a preliminary issue was heard before Master Cook. Parties relied upon evidence from neuropsychologists and neuropsychiatrists, who had assessed the claimant’s ‘capacity’.
However, the joint psychiatric and joint neuropsychological reports fell short of what was expected, in that they were both ‘overlong overly lawyered documents’, which resembled a ‘cross-examination of the experts on their respective approaches or attempts to advance the arguments on behalf the parties' respective positions’. The former comprised of 34 questions (with sub-clauses), while the latter contained 41, only 2 of which assisted the Court in understanding ‘the issues on which the experts agreed, the issues on which they disagreed and the reasons for their disagreement’.
Observing that this was ‘not helpful to the court’, the clinical negligence Master urged all parties to ‘resist the approach … taken in this case’ in future:
‘… a joint statement by experts pursuant to CPR 35.12 is for the benefit of the court and should not be a proving ground for the parties' respective cases’.
Full text judgment can be accessed here.
For clarity and finality, a joint statement correctly written should offer ‘a succinct and clear summary of issues, and of the reasons for the remaining disagreement’. It is hoped that practitioners and experts alike will heed this advice moving forwards.
[i] Christopher Sharp, ‘Part 35 and the Experts’ Joint Statement’ (March 2019 St. John’s Chambers) <https://www.stjohnschambers.co.uk/wp-content/uploads/2019/03/Part-35-and-the-Experts%E2%80%99-Joint-Statement.pdf> accessed 20 August 2021.