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PI Practitioner, December 2018

16/12/18. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

This month's issue focuses on applications for permission to bring in additional fields of medical evidence, and specifically the case of Sharron Denise Hall v Derby Teaching Hospitals NHS Foundation Trust [2018] EWHC 3276 (QB), which provides a stark illustration of 'how not to do it'.

It is suggested that the following practical points of importance emerge from the judgment:
(1) Exercise caution before presumptively instructing the relevant expert, before the application has been heard. Implicit in the judgment is a recognition of the fact that just because an expert report has been obtained, a grant of permission is not necessarily more likely to be obtained. Further, if the expert is presumptively instructed and permission is then refused, it will not only be very costly, but it may also be hard to unwind the consequences of the instruction (for example in this case, the other experts had all been asked to comment on the evidence of the new expert in their reports).
(2) Claimant practitioners should be mindful of the fact that, if the further evidence is sought because it is hoped that it will contain a specific conclusion that will bolster the claimant's case, there is an inherent risk that the conclusion may not be forthcoming. If so, the evidence is unlikely to add anything and is therefore bound to be refused, in which case the whole exercise will have been little more than an expensive fishing expedition.
(3) Where possible, parties should endeavour to agree a common approach, short of seeking formal Part 35 permission, to accommodate the potential need for further expert opinion on specific points. If that can be achieved, many of the risks and costs identified above could be...

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