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Legal Mind Case and Commentary No 17: The Joint Statement: Concise, Impartial and Key - Professor Hugh Koch, Dr Eleanor Sorrell, Dr Luisa Fernandez-Ford

26/04/18. Case: 23.02.18 - David John Saunders v. Central Manchester University Hospitals NHS Foundation Trust (2018) EWHC343 (QB).

In the judgment of Mrs. Justice Yip, the issue of the agenda for joint reports was raised, and how it can or should be neutral, impartial and non-confrontational. In this clinical negligence action, arising from surgery to reverse an ileostomy, the judge was critical of the joint report/albeit arising from ‘high standard’ individual reports. The criticisms were as follows:

  • Excessive length (60 pages) which did not narrow or agree issues.
  • Two separate agendas with repetitive questions, and lack of agreement for a single agenda.
  • Lack of common sense, collaborative approach.

Commentary

As Exall (2018) clearly summarised, the Civil Justice Council (CJC) Guidance for the instruction of experts in civil claims gives clear direction as to the purpose of discussions between experts (Section 7) to identify, discuss and narrow the issues under debate, but not to seek to settle the proceedings i.e. not to resolve disagreement. In Practice Direction 35, guidance indicates the utility of an agreed agenda which helps experts to focus on the key issues. More detailed guidance from the CJC supporting discussions should be...

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