§ RULES OF COURT WITH RESPECT TO EXPERT REPORTS AND ORAL EXPERT EVIDENCE.
§ Question proposed, That the Clause stand part of the Bill.
§ Mr. McLaren
This Clause gives power to make rules of court with respect to expert reports and expert oral evidence. The rules may govern the procedure for putting in evidence experts' reports and may provide for the compulsory disclosure of such reports, and may go on to prohibit the calling of expert oral evidence where there has been a failure to disclose a report.
The Report of the Law Reform Committee recommended that compulsory pre-trial disclosure of expert reports should be limited to cases where the report was expected to be based on agreed facts and that, conversely, compulsory disclosure should not be called for where that was not the case. In particular, the Committee thought that medical reports should be subject to compulsory disclosure and that the onus of showing why there should not be disclosure should lie on the party seeking to avoid it.
Yet there would be certain exceptions. There would not be disclosure of medical reports in actions of medical negligence, nor where the plaintiff was accused of malingering. The rules would provide that a party should be able to require the attendance at the trial of the opposite party's expert so that he could be cross-examined. If that was desired, that witness could be secured. In non-medical cases, as opposed to medical ones, the onus should be on the party requiring disclosure of the report.
In all these matters there would be an overriding discretion to the trial judge to admit evidence notwithstanding any failure to comply with the rules. These rules would apply equally to arbitrations 1972 and references and to any tribunals in which the strict rules of evidence apply. The sanction for failure to disclose would be to prohibit the calling of the oral evidence at the trial.
To sum up, the effect of the rules of court which might be properly made under this Clause would be, first, that no expert evidence should be admitted except as provided in the order for directions; second, that the expert should not be allowed to depart orally at the trial from the compulsorily disclosed report; and, third, that the court should always retain an overriding discretion of what evidence to hear.
§ Mr. Stanbrook
The Clause is the most substantial, perhaps the most important, and, from my point of view, the most objectionable part of the Bill. It provides for the compulsory simultaneous disclosure of expert evidence. Significantly, the minority Report of the Law Reform Committee deals with this problem. It is, perhaps, immensely significant, notwithstanding what my hon. and learned Friend the Solicitor-General said about the composition of that Committee—I do not wish to sound irreverent about its members—that those who signed the minority Report—that is, those members of the Committee who did not agree with this substantial change in our practice—included two of the most distinguished barristers practising in the courts today.
As the Committee was dominated, perhaps not in numbers but in wealth of experience and knowledge, by judges, that fact is of great significance. The practical application of the solution to a problem like this is of much greater importance to practitioners than to judges.
I find the minority Report impressive, especially in its argument that what is being brought about in this Clause is a fundamental change. I wish to quote from the Report of the Law Reform Committee, paragraph 16, page 45:…the change is far from being merely procedural. At present a report obtained by a party is privileged from production. The proposal is that a party should be compelled to waive his privilege if he wants to call evidence. This goes a long way to the abolition, in so far as it relates to expert evidence, of a privilege which is fundamental to the adversary system and has stood unchallenged and substantially uncriticised for a very long time.1973Furthermore, the special position of the defendant must be considered. At present he is entitled to do his best to destroy the case against him, deciding only at the close of the plaintiff's case whether he will call any, and if so, what, evidence. Under the majority proposals"—the proposals contained in the report signed by a majority of members of the Committee—a defendant's position will be radically changed if an order is made In order to preserve his right to call evidence on a matter of expertise he will have to disclose his expert's report. The plaintiff's expert will then be forewarned to meet the cross-examination. Some may consider that this is desirable. Whether it is desirable or not, it is a fundamental change and should be recognised as such. To speak of holding the balance equally does not advance matters. Plaintiff and defendant are in different positions. At present the defendant has the right mentioned.In future, he will not.
Those distinguished authors of that minority Report point out not only the fundamental nature of the change which the Clause seeks to make but the impracticability of introducing such a novel and fundamentally changed procedure into our system. On page 46, paragraph 18 of the report they quote the questions which the master or the district registrar dealing with the summons for directions will have to ask himself. They quote those questions as:Is it expected to be based on agreed facts?Is it expected to be based on facts ascertainable by the expert himself with reasonable certainty by the exercise of his own powers of observation?Is it expected to be based on facts which are common knowledge by reason of having been published in professional books or journals?Is it expected to be based on facts observed in the past by the expert in the course of his professional studies or practice?Is it expected to be based on a version of facts in dispute supplied by the instructing part?They go on to say in paragraph 19:We are at a loss to understand how a master, or a registrar, can possibly reach a conclusion upon such matters. He will not have the report before him nor will he know by whom it is going to be made. For a master to say 'I expect that the report when made, and by whomsoever it is made, will or will not be based on agreed facts, or facts ascertainable with reasonable certainty by the expert himself by the exercise of his own powers of observation, or on facts which have been published in professional books or journals, 1974 or on facts observed in the past by the expert', can be no more than uninformed crystal gazing.They end their criticisms of what amounts to this Clause with these words:It is in our opinion an impossible task.That, I would have thought, was a sufficient condemnation of what is planned to be achieved by this Clause. I believe that it is advancing a rather dangerous tendency, a tendency to reduce the issue which a court has to decide to as narrow a compass as possible.
§ 1.45 p.m.
§ Many people will say that that is a very good and desirable thing, in that we must try as far as possible to relieve courts from unnecessary work and thereby help to reduce delay and costs. But I hope we shall never reach the stage—and unless we think about the problem now we may well reach that stage one day—when a trial can be conducted almost wholly on paper. That is the tendency, I believe, which is apparent from this Clause. We are on a slippery slope by admitting opinions and hearsay evidence as to facts. We are pushing ourselves further down that slope by agreeing to this sort of approach to evidence which ought to be produced at the trial without such compulsions on the parties.
§ I question whether the pre-trial publication of all prosecution evidence in criminal trials has been beneficial and in the public interest and has assisted in the administration of justice in this country. I accept that it is a practice of some long standing, but because of this apparent desire to give a defendant in a criminal trial as much advance warning as possible of the charge which he has to answer, we have reached the stage nowadays when the whole prosecution case is revealed to a defendant, in modern circumstances because of the conditions in the courts and long lists, well in advance of the trial.
§ Mr. Ernle Money (Ipswich)
Will my hon. Friend accept that, although it may be highly desirable, it is much more honoured in principle than in observance? Surely all that a prosecution has to do is to provide enough evidence to make a prima facie case on which to achieve the committal of the defendant and get the defendant in front of a higher court. 1975 In long cases notices of additional evidence flow throughout the entire course of a prosecution case.
§ Mr. Stanbrook
I am grateful to my hon. Friend for that intervention. That is just the point, that the evidence admitted at a preliminary hearing of a criminal case for the purpose of committing the defendant to trial is necessary only in order to establish a prima facie case against the defendant.
§ Mr. McLaren
As this is a civil evidence Bill, should we not confine ourselves to civil proceedings and leave on one side criminal proceedings?
§ Mr. Stanbrook
I will do my best. I just want to reply to this point because we are dealing with the publication of evidence before a trial. That applies equally to both criminal and civil cases. While the theory of the production of evidence for committal for trial is that sufficient should be produced for the purpose of establishing a prima facie case, in practice because of our devotion to this principle of fairness to the defendant—and I cannot very well argue against that—the prosecution tends to produce all its evidence for that purpose. I accept that in very long trials and big cases sometimes a considerable amount of work is done by way of notices of additional evidence, but great attention is given to the problem of assisting the other party to the dispute by presenting all the case and the evidence against him as early as possible. I question whether this has in practice been in the public interest. Therefore, by introducing a similar principle into civil evidence we are perhaps promoting something which will have highly undesirable consequences.
Is there not a clear distinction between the point which the hon. Gentleman makes—I am not in any sense saying that I agree with what he has just said—and the effect of these provisions, inasmuch as under these provisions relating to technical evidence both parties will have to disclose their technical case at the same time? That is quite the reverse of the situation which the hon. Gentleman has described.
§ Mr. Stanbrook
It is not entirely the reverse because, save in the case of an 1976 alibi warning, the defence in a criminal trial is under no obligation nowadays to reveal its hand. Under what is intended here—that is, a reciprocal exchange of expert evidence—the principle remains the same. Indeed, if one thinks not so much of advantage given to one side alone but of the undesirability of stating established positions before trial, injustice will be done to both sides in future in that they will be prevented from handling their evidence in the way which the progress of the case would perhaps justify.
It remains true, I believe, that the way in which this principle has been operated in criminal proceedings has enabled many criminals, by the use of dishonest evidence, to get away with their crimes.
I have referred to the question of an alibi, and again I take my analogy from criminal proceedings, with which I am more conversant than I am with civil proceedings. The requirement as to disclosure of an alibi by a defendant within seven days of committal has not always worked fairly, in that stupid or ignorant yet innocent persons may well have been penalised by it.
I do not consider that it is in the public interest for us to require parties to a dispute, whether civil or criminal, to establish their positions and to give their evidence beforehand. For that reason, in accord with the sentiments expressed in the Minority Report of the Law Reform Committee, I believe that the Clause is undesirable and should not be passed.
§ Mr. Money
I apologise to the Committee for having missed the opening of the debate. I was glad to be here, however, to listen to the closely reasoned speech of my hon. Friend the Member for Orpington (Mr. Stanbrook), although I disagreed with the views which he advanced.
One of the profound advantages introduced by the Bill, and in particular by Clauses 2 and 3, will be to tend to diminish the long-standing scandal—I use the word advisedly—of the way in which the expert witness is treated by our courts. I have had considerable correspondence both with my hon. and learned Friend the Solicitor-General and with the Lord Chancellor's Department on 1977 behalf of, to take one example, the British Medical Association in my constituency.
I am sure that every lawyer who has had to deal regularly with litigation in the civil courts have been worried by the way in which busy professional men—I am thinking especially of doctors, and their patients too—are put to considerable inconvenience, expense and often, in the day-to-day running of their practice arrangements for their patients, real hardship and disadvantage by the difficulties caused by the listing and hearing of cases in the Queen's Bench Division.
It is true that great steps have been taken in the listing of cases, and every effort has been made by those responsible for the administration of justice to try to bring matters into line as far as possible. But the great hold-up has come in our existing practice so far as it relates to a full oral hearing of expert testimony.
Most young barristers have had a good deal of experience of appearing before a master or a district registrar, trying to arrange, by the making of appointments, just how much expert evidence should be called. It always struck me when I attended that sort of hearing how much better it would be if one were able, in effect, to agree the whole of the evidence at that point. Steps have been taken to this end by the system of voluntary disclosure, which the profession has, I think, come round to, for the acceptance of expert testimony and the agreeing of bundles of medical documents, for example. This has saved a great deal of time, but the fact still remains that vast amounts of unnecessary evidence are led and time is unnecessarily taken up because one side has been unsure of what the other side would produce, and it has been a question of dotting i's and crossing t's long before the hearing of the case.
I hope that, on that aspect of the matter, the Bill will make it possible to save a great deal of the time of medical men and other professional men who act as expert witnesses, while at the same time avoiding the long and embarrassing cross-examination which sometimes takes place because a defendant's counsel does not really know why it has been necessary to have the expert on the other side and he puts lots of searching questions to him in the vague hope that somehow 1978 this will do his client some good. One is reminded of the lengths to which this sort of thing can go by the famous story of the distinguished expert giving oral evidence who became rather irritated with what was happening and went straight ahead on the lines of his proof. When stopped short by counsel, who reminded him that he had not answered the question, he replied that, in fact, he was trying to answer the next.
So often, the giving of expert evidence becomes almost a "ritual fire dance" in our civil courts, and I am sure that many judges must have——
§ Mr. Stanbrook
That practice will not be obviated by the Clause. Proofs will still be exchanged, evidence will be disclosed, but the list of supplementary questions and the answers thereto will remain with the professional advisers, with the result that it may well be necessary for evidence to come out in court in just the same way, with just the same fishing questions being asked. All we are doing is adding to the paper, without reducing the actual amount of court work.
§ Mr. Money
I take that point, but, with respect, that is exactly what High Court masters are there for. One of the advantages of the procedure envisaged in the Bill is that it will put into the hands of High Court masters the responsibility of seeing that just that kind of evidence is agreed, so that large amounts of exploratory cross-examination will become unnecessary.
The Clause will have considerable value for the simple or uninstructed plaintiff. We hear specifically, not necessarily in personal injury cases only but in issues like noise nuisance actions and other issues where a high degree of scientific expertise may be involved, of counsel suddenly finding themselves faced on the morning of the hearing with a vast amount of highly impressive sounding evidence which they have not been able to anticipate and which, in the absence of an expert witness of their own anticipating exactly what would be said, they are not really in a position to answer. We know only too well that, however sympathetic the courts may be, the chance of getting an adjournment in these cicumstances, or the chance of being able to call evidence at a later stage, 1979 even though the evidence which has come up cannot be anticipated on the pleadings, weighs the scales very much in favour of whoever can afford to keep the most expensive expert evidence hanging around for the longest time.
§ Mr. S. C. Silkin
Is it not even worse? I appreciate that the hon. Member's point comprehended the situation but is it not even worse where the evidence comes from the defending side after the plaintiff has called his case, having no idea that this kind of technical question will be raised?
§ Mr. Money
I accept what the hon. and learned Gentleman has said. In particular, the difficulty that arises here is that our forms of pleading tend to be overtly simplistic, though in fact highly sophisticated, as opposed to the normal form of pleading which exists in most Continental jurisdictions. After what the House has suffered within the last few weeks I do not want to go into the minuitiae of the differences between our law and that of some of our nearest Continental neighbours. But one great advantage that many Continental countries seem to have is that the pleading is a straightforward narrative setting out just what the plaintiff's case is, just what the dependant's case in and just what the facts are that support each.
Not only are the pleadings in our courts in nearly all cases, and certainly in High Court cases, a cabalistic ritual of considerable antiquity aimed on the basis of producing a system of the utmost complication by which fine semantic points can be scored. Although they deal with contentions of law of considerable complexity they fail to disclose freely the nature of the factual evidence to which the defendant would have to reply. Very often it is extremely difficult for counsel to anticipate within the rules of evidence, from such bald statements as they are able to get by a summons for directions or by further particulars of pleadings, just what facts or expert evidence are behind the pleadings.
I fully accept what the hon. and learned Gentleman has said about that. For these reasons I would support Clause 2 as it stands on the basis, as I have respectfully said before in some of our debates to which my hon. and learned 1980 Friend the Solicitor-General has shown a most sympathetic ear, that there is strong feeling in the country that there are two different levels in a case. There is the lawyers' understanding of the case and there is the parties' understanding. Anything that goes to make the law simpler and fairer for the parties and for anyone else is very much to be welcomed.
§ The Solicitor-General
It is right to acknowledge that Clause 2 contains the one recommendation about which there was a division of opinion in the Law Reform Committee, and it is, therefore, right that there should be some discussion about the two opposing views.
The Committee must, therefore, welcome the contrasting contributions by my hon. Friend the Member for Ipswich (Mr. Money) and my hon. Friend the Member for Orpington (Mr. Stanbrook), who stated the opposing sides of the argument. Before I turn to that point I will say one thing about the matter raised by my hon. Friend the Member for Ipswich; namely, what he described as the scandal of the way in which expert witnesses were treated in being required to attend courts at short notice, sometimes to linger there for long periods and to suffer much disruption of their practices. But it is worth remembering that expert witnesses are not the only people who have had to endure that kind of thing.
I was a member of the Committee appointed by Justice, under the chairmanship of Mr. Philip Kimber, which made recommendations on the trial of accident cases, and we drew attention to this point some years ago. The Report of the Committee on Personal Injuries Litigation—Cmnd. 3691—also made the same point, and the Beeching Royal Commission drew attention to it in no uncertain fashion. There can be no doubt that those responsible for administering the legal system are aware of its importance. It is worth making the point today that the volume of complaints about this kind of thing happening has already appeared to diminish sharply and substantially as a result of the early days of the operation of the Courts Act. If the practice continues I hope it will not for much longer, but I believe it is probably impossible, even now, to refer to this kind of thing as a scandal. There 1981 have been and are substantial improvements, but it is right that my hon. Friend should have drawn attention to it.
I come to a matter which is more germane to the Clause; namely, the compulsory disclosure of expert evidence in certain circumstances. We must remember that the proposals are confined to civil proceedings and to expert evidence. I would suggest that some of the points that my hon. Friend made, although in part relevant, did not bear closely on these provisions. The provisions are expressly designed to diminish the area of battle, to disclose the hands that are going to be played, and to give people reasonable notice of the case they are meant to meet so as to speed up the process of litigation.
If we must discuss this matter within the rather narrow confines of the law of evidence as it now exists and within the narrow confines of the proposals contained in the Bill, it would be difficult to take very far the proposition advanced by my hon. Friend the Member for Ipswich that the procedure in our courts is even overtly simplistic. At one point many decades ago some people set their hands to the task of producing an apparently simple set of rules for the courts, but they are not very simplistic overtly.
§ Mr. Money
I chose my words carefull. The word I used was "simplistic" and not "simple". I intended to convey that the use of a few words, overtly simplistic as such, could in fact cover many of the matters that were complained of by the hon. and learned Member not of disclosing the basis of what the real case was but of using the time-honoured ritual used in the courts for many years.
§ The Solicitor-General
I take the point and I am merely underlining my hon. Friend's approach, that we do not work in a practically simple, simplified or simplistic world in the courts and that, as this Measure will help to make it simpler, all hon. Members of this Committee will welcome it.
There was disagreement on the Law Reform Committe, which was comprised solely of distinguished practitioners in both parts of the legal profession. The majority decision deserves some respect. The majority numbered 12 and comprised 1982 all the academic members, all the judges—and judges were, after all, practitioners once, some of them not very long ago—one practising member of distinction of the Bar and one practising solicitor of distinction. The balance of argument, if one is to judge by counting heads and distinction, probably lies in favour of the majority, which is no doubt why my hon. Friend has introduced the Bill in this form.
It would not be right for the Committee to be left with the impression that the privileged nature of the reports in respect of which compulsory disclosure might be ordered has, as the minority said, been unchallenged or substantially uncriticicised. The proposals contained in the Clause and in this part of the report first saw the light of day in an official capacity in the Final Report of the Ever shed Committee, Command Paper 7788, at paragraphs 289–291. They were repeated in respect of medical evidence in the report of the Winn Committee at paragraphs 279–283. Like most proposals for law reform, they have already been the subject of deliberate consideration for decades rather than years, and it is right for the Committee to approach them with this in mind.
It may be of some use for those who have to consider this matter here and in another place if I remind them of the balance of the arguments put forward. The minority put forward a number of different arguments. It asserted, first, that no significant amount of time was wasted at the trial in giving evidence on non-controversial matters; secondly, that prior notice of the contents of another party's expert report would make it easier for an incompetent expert to conceal his incompetence by enabling him to pick up points that he might have overlooked; thirdly, that, under the present system anyway, medical reports are often agreed without the need for compulsory disclosure, so that the procedure suggested was unnecessary; fourthly, that the procedure for compulsory disclosure would tend to be more expensive because of the additional care given to the preparation of the reports that would be disclosed; and, fifthly, that no general conclusion should be drawn from the fact that disclosure takes place already in respect of motor engineers' reports, restrictive practice cases and patent cases.
1983 On the other side of the argument the majority asserted, more compactly, that compulsory disclosure would, first, reduce the matters of expertise at issue between the parties; secondly assist the achieving of a settlement or the agreement of reports; thirdly, enable each expert to prove more helpfully and thoroughly his evidence on the matters which, after the exchange, were clearly at issue; and, finally, that the practice already exists in some cases and no criticism of that has been made.
That is the balance of the argument. The Bill is before the Committee and represents the majority view. Speaking for the Government, I would say that it has been helpful to have the views of hon. Members on the way in which the arguments should be compared.
§ 2.15 p.m.
§ Mr. S. C. Silkin
This is the most controversial Clause in the Bill, and it is only right that I should say a word or two in view of the forceful minority report.
The Solicitor-General referred to the majority and spoke of one practising member of the Bar. I think I am right in saying that there were three practising members of the Bar, although some were also academics. We are not dealing with this as a question of numbers. The Solicitor-General clearly and succinctly put the points on each side. I have carefully read, not once but several times, the minority report, not only because of its distinguished parentage but also because the minority report points out that the Bar Council and the Law Society were on this occasion united in taking the same view as the minority.
In those circumstances it is right to search the arguments produced by the minority to see whether they really overbear the majority report. I have formed the view that the majority is right. Pleadings have always been said to have the purpose of narrowing down the issues so that when the case comes to court the court and the parties are fully aware of what is the real dispute. In these days when technical matters involving cases become more complicated it seems that the pleadings very often do not succeed in doing that. The minority recognised this to some extent when it said in paragraph 23: 1984In our opinion, if it is necessary to do anything to ensure that the issues are properly limited and defined before trial, the proper way to do this is to encourage the giving of full particulars of pleadings.That has been tried to its limit but still we get the situation which the hon. Member for Ipswich (Mr. Money) described whereby parties can be taken by surprise and a great deal of evidence can be given, unnecessarily as it turns out, because of the failure of the pleading system when we come to technicalities to ensure that the issues are narrowed down and clear to all parties by the time trial is reached.
When I used to do negligence cases I was essentially a plaintiff's counsel and that may have coloured my view. I can recall many cases when the plaintiff gave an account of what he believed, rightly or wrongly, to have happened. He was cross-examined not on technicalities but on facts, often briefly, and then the defendant produced an expert witness who sought to prove that the version given by the plaintiff could not have happened because of the technicalities of the matter. This was without any warning to the plaintiff.
Of course, it can happen the other way round. I have no doubt that by, as it were, extending the system into the realm of the technical, the expert, in the way suggested, by compelling, in appropriate circumstances—not always but subject to reservations published in the report—the parties to disclose their technical evidence in advance, the result will certainly be not only that a great deal of expert time will be saved but that the time of the courts will be saved and the time of all those to whom the Solicitor-General referred will be saved in their not having to hang around while expert witnesses are subjected to long cross-examinations. What is most important of all is that justice will be more open and the court and the parties will know more precisely what is in issue in the case.
§ Mr. Money
Would the hon. and learned Gentleman agree that one area in particular with regard to medical evidence where this aspect will be of great importance is in itself a sometimes rather obscure area—where judges have to determine whether a plaintiff who is suffering from an undoubted medical condition for which no immediate medical 1985 reasons can be found is a malingerer or is suffering from something which has become so real in his own mind that it is a genuine cause for damage?
§ Mr. Silkin
I agree that that kind of situation is familiar to practitioners and judges—since so many cases these days are personal injury cases—and that it is among the most difficult of all. It seems to me to be of every advantage that the cards should be on the table for all to see when the trial starts and not be revealed in the course of it.
§ Mr. Ian Percival (Southport)
I apologise for having arrived at such a late stage. I hope that I shall be acquitted of any apparent discourtesy, but the delay is because I have been applying the rules of evidence and the like elsewhere. My late arrival is a great disadvantage, which I recognise at once, in that I do not know what has been said thus far, so if I am making a point or points which have already been made frequently, I apologise to the Committee for the inconvenience.
I take up the point made by the hon. and learned Member for Dulwich (Mr. S. C. Silkin) about having the cards on the table. It is an attractive phrase, but it grossly over-simplifies legal procedure. It is correct to say that there is a tendency for the pleadings to fail in their objective. That may sometimes be because one side is endeavouring to use the rules to make sure that the pleadings do not succeed in achieving their objective. That may be a perfectly legitimate objective. But in so far as a party succeeds in that objective it is usually because the other party has not done what he should have done to get the position clear. In other words, although I appreciate that there is a problem, I do not think it arises out of the rules and that it necessarily calls for any change of the rules. Like so many other problems, it arises largely from the way people work the system rather than from the system itself.
In this sort of matter I am in favour of the procedures being such as to enable a party who is determined to see that these matters are clarified before the trial, to achieve that, and such as to enable the court to make such orders, as are necessary to oblige a party trying to confuse or hide the issues to disclose or clarify. But that is different from saying that the 1986 evidence should be laid on the table as well. It is possible that the doctrine which the hon. and learned Gentleman advances about putting the cards on the table, which superficially sounds so attractive, could be extended unduly if we made compulsory disclosure of evidence to this extent.
I am not at all enthusiastic about the Clause. I have chosen those words carefully because I am not going to oppose it or take the matter to a vote or anything of that kind. I take the view of those who made the dissenting note, but I am not suggesting, any more than they were, that because a minority of the Committee or maybe a minority in this Committee has a different view that is a good enough reason for rejecting the recommendation. That is how the minority put its point at the beginning of its dissenting note.
I rise to express my lack of enthusiasm for this reason: I hope that when the rule-making power is exercised—that is all it is because we do not yet know what the rules will be—those who have to make the rules will be cautious about the extent to which they make rules which might introduce big changes in practice. Contrary to the experience of the hon. and learned Gentleman, I cannot remember any case in which difficulty was experienced in connection with expert reports which was not resolved before the trial. There are other means of securing disclosure and agreement about expert evidence than getting orders of the court.
The hon. and learned Gentleman and everyone else who has practised in this branch knows as well as I do that there are many steps one can take other than making application to the court—for example, by putting one's opponent in the position of either telling one what it is all about or having orders for costs made against him. It is standard form from my exerience to ask the other side to disclose reports in any case where there is any suggestion that there might be reports. This applies not only in medical cases but in engineering, building, shipbuilding cases and the like. It is true that there are cases in which the plaintiff, perhaps because his case is not as strong as had been made out before, or perhaps simply because someone is not getting on with the case, declines to say exactly what are the injuries he has suffered and the like. Sometimes this is for 1987 the very good reason that he does not yet know. Sometimes in a personal injury case for a long period the doctors, with the best will in the world, are unable to say, although they can say what the visible injuries are, what the prognosis is and what is the likelihood of the development of this or that.
Sometimes it is the defendant who is delaying, perhaps by declining to supply reports of the doctors who have carried out such inspections as have been allowed; sometimes he uses other means. I am sure that the hon. and learned Gentleman will agree that it is the experience of practitioners that there are a good many weapons already to hand for dealing with that kind of delay, particularly the robust summons for directions by which Masters of the Supreme Court now have substantial power to require someone to do something or, on his failing to do it, to make it expensive for him in the matter of costs.
I have said what I have said so far in relation to medical reports because that is the example in which expert evidence most commonly arises. I bear in mind what even the minority said in the 17th report—that it would not object to there being some extension of the powers relating to disclosure of medical reports. I subscribe to that view despite what I have said, despite the means that already exist for finding out what the other side is saying, because there are cases when people are unduly awkward or delay unduly, and, like the minority, I am not in the least averse to there being further powers in that respect.
But I do not think much more is needed. What I am concerned about is the apparent acceptance that it is desirable that other kinds of expert report should come under some compulsory process, and not only that this is desirable but that it is workable. It is in this respect that I was most impressed by what those who signed the dissenting note had to say, because they are essentially practitioners. I hope that the Committee will always bear in mind that there is a world of difference between the theory of the law and the practice. This is true in other matters, and it is no less true in the law. I therefore hope that whoever has to exercise the power given by 1988 Clause 2 will, in so far as they propose to introduce new powers by rules for the compulsory disclosure of reports other than medical reports, tread warily.
There are two things of which we have to be careful. One is that we must not keep messing about with the law. We ought to make changes only where they will be of consequence and value. It is difficult enough keeping up with the changes in the law as they are being constantly propounded by Parliament, and it is also difficult to keep up with the changes in practice. But what I am concerned about more particularly is that whoever has to make these rules should pay, as I am confident they will, the closest regard to the dissenting note by the minority, because it is directed towards what I regard as the most important aspect of the matter—the workability of the rules.
I have often said that it is easy to have a good idea, but that the real question is whether one can put it into practice. Many good ideas cannot be put into practice. Much more important than having a good idea is ensuring that what Parliament does to produce laws is workable. While making it clear that I am not opposed in general to my hon. Friend's Bill, or seeking to delay it, or to stop it from getting on the Statute Book, I sound that note of warning, echoing what was said in the dissenting report, because workability is the all important factor in the law, as in everything else.
§ Question put and agreed to.
§ Clause 2 ordered to stand part of the Bill.