EWJ 60 April 2025 web - Journal - Page 49
sessing what happened. Mr Behar was described as an
honest witness who gave his evidence fluently. He acknowledged his shortcomings and where he had
made errors.
agreement is reached under the provisions of Part 36.
In Revill v Damiani [2017] EWHC (a case that revolved
around the 2017 change to the PIDR) the court found
that CPR 21.10 did not discriminate against protected
parties and was compatible with the Human Rights
Act.
In finding for the defendants, the judge found that
the process of revisiting distressing events led to the
claimant misremembering her exchanges with Mr
Behar resulting in a narrative that wrongly implicated
him in serious breaches of professional duty.
The judge was keen to emphasise that he reached his
finding having considered the entirety of the
evidence before the court and that this was not just a
“credibility contest” between Mr Behar and Ms
Deakin-Stephenson.
Permission given: A late change of experts did not
amount to expert shopping
Author: Jonathan Fuggle
In clinical negligence cases, it is not uncommon for
parties to lose confidence in their expert witnesses and
seek to replace them. In Alan Prescott-Brann v
Chelsea and Westminster Hospital NHS Foundation
Trust & Anor [2024], the court considered the circumstances under which the late ‘changing horses’
might be permitted.
This case showed how witnesses present and how their
accounts align with the contemporaneous records
(even if incomplete) is critical. While poor record
keeping can present problems, it is not necessarily
fatal. Acknowledging gaps and weaknesses in the
evidence improves witness credibility.
The facts
The claim concerned a delay in diagnosing a stroke
and whether earlier anticoagulation would have
changed the outcome.
The claimant attended West Middlesex Hospital
where a CT scan was reported as normal. He was discharged with a diagnosis of a migraine, but his condition deteriorated two days later. It was subsequently
found that he had suffered a thrombotic event.
Personal injury discount rate reduces the cost of
claims to insurers and the NHS
Author: Jonathan Fuggle
Following a review announced by the Ministry of
Justice in July 2024, on 2 December 2024 the Lord
Chancellor announced that the personal injury discount rate (PIDR) would increase from -0.25% to
+0.5%. The change took effect on 11 January 2025
and will reduce the cost of claims to insurers and the
NHS.
Both defendants admitted to breaching their duty.
The claimant’s causation argument was that, had aspirin been prescribed on the morning of 25 June
2014, he would have remained in the hospital, the anticoagulant effects of the aspirin would have prevented
a further thromboembolism, and a poor neurological
outcome could have been avoided. The defendants
denied causation, arguing there was no evidence of a
second embolic event that aspirin could have
prevented.
The decision ends the situation that has existed since
2017 where significantly different rates existed in the
various UK jurisdictions. The Northern Ireland and
Scotland rates were both raised to +0.5% in September 2024. The decision also marks the return of the
PIDR above 0% for the first time since 20 March 2017.
Replacing the causation expert
At a late stage in the proceedings, the claimant applied
for permission to replace his neurological expert, Dr
Wills, with a new expert. The matter came before
Master Eastman who refused permission to change
experts. Professor Wills had not changed his opinion
but had maintained his view throughout that prescribing anticoagulation therapy (aspirin) by 2:00 p.m.
on 25 June 2014 would not have changed the outcome. The master commented that the application
had the “aroma of a late attempt at expert shopping”.
After extensive consultation, the Lord Chancellor
rejected the option of having a dual/multiple discount
rate for England and Wales.
The rate seeks to ensure that an individual is not
under (or over) compensated and that in receiving a
lump sum award for anticipated future costs, the principle of 100% fair compensation is implemented. The
increase to the PIDR will reduce the value of claims
for future losses by decreasing multipliers for terms
certain.
Although the application was made late, the court, on
appeal found that the claimant had legitimate reasons
for changing experts. The claimant’s advisors persuaded the court that Professor Wills had failed to engage adequately with the evidence provided by the
claimant’s neuroradiology expert, Dr Birchall. This
alone was sufficient for the High Court judge hearing
to allow the appeal.
There has been a working assumption for some time
that there would be a return to a positive rate and for
some time settlements have been negotiated based on
an assumed PIDR that is less generous for claimants
(say +0.75% or +1%)
In most cases, it will not be possible to renegotiate settlements on assumptions that have with hindsight
proven to be wrong. The position on cases where a
settlement has been reached in principle but where
court approval has not yet been obtained is different.
CPR rule 21.10 provides that a compromise or settlement is not binding on the parties until it has been approved by order of the court. This is so even if the
EXPERT WITNESS JOURNAL
Commentary
The discretion to allow the substitution of an expert is
exercised on a case-by-case basis. Critical to the success here was that the claimant was able to persuade
the court that Professor Wills was not engaging with
the evidence of the claimant’s other expert.
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APRIL 2025
