White Dalton specialist motoring solicitor Andrew Prendergast answers your legal questions…
Question:
I have an ongoing claim after a young lady knocked me off my KTM 1290 Super Duke GT. A trial has been booked in for a couple of months’ time. Liability has been admitted by the lady/her insurer but the issue I have is with the medical evidence my solicitor has arranged from a supposed “orthopaedic medical expert.” The expert has reported for a second time that I could have gone back to work after 4 months. However, I haven’t gone back after 18 months and have lost a lot of money because I have a really injured foot (I am an accountant). I want to get a different orthopaedic expert report and not show the Defendants the second medical report. I am worried because if the Defendants see it, I suspect they will make me a really low offer. Can I make the orthopaedic doctor change his report? I’m paying his bill after all! Or can I just get a different report from a different orthopaedic doctor without showing the other side the first expert’s second report?
Answer:
In England and Wales there is something called the Civil Procedure Rules. Under these rules it means that the orthopaedic medical expert’s duty is to the Court, not to you, even if you pay his bill. Therefore, if that is the doctor’s expert opinion, that’s it I’m afraid. I would be extremely worried about an expert if he changed his opinion just because you weren’t happy with it. It would be screaming “gun for hire.” As an aside, would you change your opinion as a professional accountant just because someone told you to? Secondly, getting a different medical expert report at this stage may be problematic. Your solicitor can’t disclose the second report without your authority because it is covered by something called “privilege.” Without getting too technical, “privilege” can protect the communications between lawyers, Clients and third parties made for the purposes of litigation. However, whilst the second report is covered by “privilege”, if you want to get a different expert to report, I suspect the Court will order you first have to disclose the report you are not happy with. This basically stops potentially unscrupulous people “expert shopping” until they get the result they want. In summary, speak to your solicitor to work out a plan moving forward. The ultimate outcome may be disclosing the report you do not like and making an application for permission for a different expert. However, you will need good reasons to persuade the Court to order this, and it will likely cost you money to make the application. Lastly, as an observation, a Judge may well struggle to find you have not been able to return to work as an accountant because of an injured foot, unless you have some very good reasons as well as the evidence to support it.