§ 7.27 p.m.
§ LORD DIPLOCK
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Diplock.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD CHAMPION in the Chair.]
§ Clause 1 agreed to.
§ Clause 2 [Rules of court with respect to expert reports and oral expert evidence]:
LORD GARDINER moved Amendment No. 1:
Page 2, line 29, after the first ("matters") insert ("in personal injury cases").
§ The noble and learned Lord said: I beg to move the Amendment standing in my name. These three Amendments are all related to the same point and can all be discussed on the first Amendment. I do not suppose for a moment that the Amendments are properly drafted. What they are intended to do is to prefer the view of the minority of the Lew Reform Committee to that of the majority on the only point on which they differed. I have no doubt the wording can be improved and if the Committee were to accept the views I am putting forward no doubt the Government would do some redrafting at a later stage.
§ I do not consider the point which I have raised as being a point of great importance, but I have thought it right, for the reasons I indicated on the Second Reading of the Bill, to put down these Amendments really as a matter of courtesy to the Bar Council and the Law Society, both of whom have strongly dissented from the Majority Report on this point and believe that the proposals made would be unworkable and would increase the cost of litigation. As will be apparent, I have done nothing to drum up any support for my Amendment, and if it becomes clear to me that it does not appeal to the Committee I shall not ask the Committee to divide on it, but I thought that the view of the united profession should at least be heard.101
The noble and learned Lord the Lord Chancellor made a very good point on the Second Reading of the Bill when he said that, after all, all this does is to give power to the Rule Committee to make rules; and it is of course true that if they do that and it turns out that the profession are right and that it is unworkable and it increases the cost of litigation the Rule Committee can revoke the rules. Then the noble and learned Lord went on to make two other points which, if I may respectfully say so, I did not think were quite so good. First he said, "Of course, the practitioners of the Rule Committee might convert the others," and he said that both the Bar Council and the Law Society are heavily represented on it as are other types of lawyers. Then as to the judges he said
they know at least as much about preparing cases as do the eminent members of the Bar Council and the Law Society".—[OFFICIAL REPORT, 15/5/72, col. 1228.]
§ The reasons why I cannot agree with those views are, first, that I spent some years on the Rule Committee so I know how they work, and it always seemed to me to be a strangely composed committee because the people who really know about the everyday practice and procedure of the courts on interlocutory matters are the Masters, who spend their whole time giving decisions on interlocutory matters, and junior counsel and solicitors and also solicitors' clerks.
The view which I have just expressed is not an idiosyncratic view. Some years ago, as the noble and learned Lord the Lord Chancellor knows, there was a Committee on the Practice and Procedure of the Supreme Court. I shall not forget it because it sat for five years and I personally attended 330 meetings of that Committee. In paragraph 132 of their second interim report they said this:
Our main difficulty in regard to the existing Rule Committee is that Her Majesty's judges have not, generally speaking, a close knowledge of the Rules"—
this was a unanimous recommendation from the Committee, including a number of judges—
or their working, nor can they properly be expected to devote their time and attention to an examination of the working of the Rules and their relationship it seems to us that the existing Committee, although impressive in point of distinction is somewhat far removed from the work-a-day affairs and the administration of the Rules.
Then they said:
It seemed obvious to us that the persons who are by far the best acquainted with the working of the Rules are the Masters, or their equivalent, rather than the judges …
They unanimously recommended that the Rule Committee should be swept away and replaced by a rules and administration committee consisting of a Chancery Master, a King's Bench Master, a divorce registrar and nominees of the Bar Council and Law Society, chosen with regard to their practical experience of the working of the Rules.
§ Now that was 20 years ago. Nothing was done because of the natural hesitation of successive Lord Chancellors to carry out something to which the judges were known to be opposed. The noble and learned Lord the Lord Chancellor said that both the Bar Council and the Law Society are heavily represented on the present Rule Committee. I have their names here and they consist of eight judges, two barristers, one of whom is a Queen's Counsel and the other a junior counsel, and two solicitors. So I think there is very little prospect that those on the Rule Committee will be able to stand up to the view of the judges. While I have the highest regard for Her Majesty's judges I am bound to say that I share the view of the Evershed Committee, of which I was a member, on this particular point. Of course they have been junior counsel once but I think it is about a quarter of a century since the noble and learned Lord, Lord Pearson, and I were junior counsel attending a summons before a Master.
§ Here we have a united profession, and I do not remember a similar case in the past where there was a committee which decided the exact opposite to the united practising profession on a practical point. And both the Bar Council and the Law Society have not stopped at that. They then came out with a subsequent memorandum, again saying the same thing.
§ What the Minority Report pointed out—and those concerned were of course practising lawyers—was that before then this proposal for the compulsory disclossure and exchange of experts' reports (other than medical reports in personal injury cases) had been opposed by the General Council of the Bar, the Law Society and another body with considerable experience of the practice of litigation—the British Insurance Association, 103 insurance companies being concerned where the defendant is insured.
§ The majority view was supported by (but only by) the British Medical Association and the Royal College of Obstetricians and Gynæcologists. I am sure they are great experts in their own field, but their field is not exactly the practical side of litigation. Therefore while there is a Majority Report which says that certain alterations in procedure and the law will result in reducing the cost of litigation, where you have a united profession saying that it will do the exact opposite I felt that on the Committee stage of the Bill their voice should at least be heard. Indeed, the minority say "We do not suggest that opposition by the two legal professional bodies which together represent the legal profession as a whole, is a sufficient reason in itself for rejecting the proposal. We do, however, suggest that the fact of such opposition should be made clear to all those who have to consider whether the proposal should be implemented. "It was because, for the reasons I ventured to give on Second Reading of the Bill, there did not seem to be sufficient general agreement in the other Chamber that I thought it should be dealt with here. I think I am reported as saying, and if I did say this it was wrong, that this was tried before the Restrictive Practices Court and abandoned.
There are the three Rules. One provides that in motor accident cases in the absence of a contrary Order the oral expert evidence of an engineer which is sure to be called on account of his skill or knowledge with regard to motor vehicles, is not receivable unless the report has been disclosed; and the Report says, in paragraph 7,
This provision, as is pointed out in paragraph 54 of the Majority Report, was introduced to meet a special case and its result has been that this kind of expert evidence is now very rarely called.
Then there are patent actions, in which there is a somewhat similar procedure to that in the Restrictive Practices Court, by Order 53A, Rule 21, of the Rules of the Supreme Court. The procedure was however soon found to be impracticable and was discontinued. It has been used in restrictive practices cases, and indeed still is, and all the reports
are exchanged before trial. The Minority Report says, in paragraph 8,
It involves much expenditure of time and money before trial. Each witness has in effect to provide two proofs of evidence, one of which will be sufficient for the other side and the other of which will provide supplementary information covering points on which the witness may be open to attack in cross-examination, what his explanation would be if attacked, which might be brought out in re-examination, and what should be put to the other side in cross-examination. The settling of these two proofs involves protracted consultations and consequent expense. But the matter does not end there. When the proofs are received from the other side they all have to be examined and further conferences are required for settling supplementary proofs, elaborating on the material which is required in cross-examination, et cetera. Finally, when the opposite side's supplementary proof is received, further consultations are held to consider them. All this is enormously expensive and time-consuming.
So far as experts are concerned, these are, in the Restrictive Practices Court, usually economists. The exchange of their proofs does not save any time at all. Their proofs, as compared with those of witnesses of fact, are often relatively short, or their final evidence will usually depend on the degree to which witnesses of fact have survived evidence-in-chief and cross-examination. When they do go into the witness box they are examined in chief at great length and their cross-examination is also very lengthy. Here, too, however, there are of necessity the same lengthy conferences for the purposes of settling proofs, additional material and supplementary proofs.
My Lords, in the Second Reading debate the noble and learned Lord, Lord Diplock, said he did not see what the difference was between medical evidence in personal injury cases and other expert evidence generally. But in their Memorandum the Bar Council and the Law Society raised this point. So far as expenses are concerned, judges really do not know about this, and the Bar Council or even junior counsel do not know much. The only people who really know about the cost of litigation, and what increases costs and what reduces costs, are the solicitors. And as here the one side says that it will save costs but the other side says it will greatly increase costs, I should have thought the view of the Law Society ought really to be taken into account. What they say here is:
… the difference of view between the majority of the Committee and those who oppose the compulsory pre-trial exchange of experts' reports arises as a result of a misunderstanding of the function of an expert and his report. It is submitted that the function of an expert falls into two parts: first, his
initial investigation and report; and only secondly, the evidence which he may thereafter give before a Court. It is necessary to stress that in the great majority of cases an expert is not merely requested to give his opinion and to write a report from assumed facts put before him by those representing the party instructing him. Much more often than not he is asked at the outset to investigate the case from his expert view-point to come to conclusions of fact, and upon both these conclusions and possibly other facts given to him to write a report upon the whole matter.
Save in one field, only in exceptional cases is there no dispute on the facts, with the result that the only issue is one of expert opinion. The one field, where the present practice of the exchange of reports highlights the principal point, is that of medical evidence. Generally speaking, there is only one 'fact' upon which a doctor is asked to give his opinion when giving a report. This 'fact' is the patient's own mind and body and in the great majority of cases there is no dispute about this 'fact' although there may be a difference of view as to the medical inference to be drawn from the 'fact'.
§ Then they point out that in the case of other than experts the report usually sets out:
- "(1) the facts that he is asked to assume;
- (2) the facts, which he has been able to ascertain in the course of his investigations;
- (3) the sources of information, both factual and expert, that were available to him and of which he made use;
- (4) the inferences which he thinks it proper to draw from the combination of assumed and investigated facts; and
- (5) his opinion on all those facts and inferences."
And they say, as indeed the minority Report did, that it is impossible for a master to tell. The Majority Report itself had not favoured the automatic exchange of reports of other experts and what the Minority Report said in paragraph 17 was that:
The basic test proposed for determining whether disclosure should or should not be ordered is set out in paragraph 30.
That is, paragraph 30 of the Majority Report.
Reports which may be expected to be based upon facts which are agreed or can be ascertained with reasonable certainty by the expert himself by the exercise of his own powers of observation or are within his general professional knowledge or experience as consisting in matters"—
and here they quote the Majority Report—
which are within the common knowledge of the profession by reason of their having been published in books or professional journals or which have been observed by the expert
himself in the course of his professional studies or practice are to be, in general, compulsorily disclosable.
Then the Minority Report says:
Thus it is clear that, in order to determine whether the whole or any part of a report should be the subject of compulsory disclosure, the Master or, on circuit, the district registrar, will have to ask himself a number of questions:—
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 party?
They conclude by saying, in paragraph 19:
We are at a loss to understand how a Master, or 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, or on facts observed in the past by the expert', can be no more than uninformed crystal gazing.
And they think it equally difficult even if the Master had the report before him because of course the party who is applying for the order will not have seen the report and so he cannot tell the Master what is in it. They end by saying:
We do not think it right to lengthen this note by commenting on the detailed procedure proposed in the report. As we regard the basic test as unsound and impracticable it follows that we regard the complex procedure designed to put into effect as equally unsound and unworkable.
§ Well, as I have said, I do not desire to take up more time in what is, of course, a small Committee, but I thought it only courteous to the Bar Council and the Law Society who have expressed this very strong view on what is a pure matter of practice, and how it will actually turn out, and whether it will save time or save cost, or whether, as the united practising professions say—this is judging from the 107 experience we have had in the Restrictive Trade Practices Court where it does not matter so much because very big issues are involved and whole industries are concerned, but the incidence of increased cost is much less important. They say that in other ordinary cases this is not only not going to save costs but it is going considerably to increase costs. I felt that was a view which should at least be considered when this Bill is before the House. I beg to move.
§ 7.47 p.m.
§ LORD HALE
In asking your Lordships' indulgence I am perhaps indulging in a work of supererogation because I have already received so much kindness that it would seem almost too impugn your generosity. But your Lordships may require some explanation for the appearance in a learned debate of this kind of a village solicitor unclad even in the decorum of a current practising certificate. The explanation has of course already been given by the noble and learned Lord, Lord Gardiner, who says that this is a solicitor's job. While I have great admiration for this Report and the Bill, for the clarity with which it is expressed, for the motives which prompt it and for the reasons put forward by the noble and learned Lord, Lord Diplock, in moving it, there are problems which I do not think have been fully contemplated.
When I speak of experts I shall not be speaking in terms of the definition in the Report which is a wide and generous one, but shall be speaking more of professional witnesses—and I would quote the French President of Assize who said. "Members of the jury, Professor Noir has said 'white' and Dr. Blanc has said 'black' and therefore you can at once make one constatation that they do not agree. You may follow with a deduction that one of them is in error, but do not be deceived by the simplicity of this into overlooking the possibility, or perhaps the probability, that both of them are in error."
My own experience is long distant; it was in the Workmen's Compensation Acts, and some free and frank remarks made on Second Reading by the noble and learned Lord who normally sits on the Woolsack about the integrity of evidence might well recall the days of the Workmen's Compensation Acts. Of 108 course we had many settled cases, but invariably the trade union doctor testified for the man and invariably the employers' doctor testified for the employer, when we had the invention of all kinds of explanations for disease. The dreadful disease, miner's nystagmus, on first happening resulted from employment and on second happening was due not to the new employment but to the old attack. Someone then invented that idiosyncratic personal attribute, which was not capable of being diagnosed, not capable of any etiology but meant that the man was predisposed to it and it had nothing to do with the employers at all. Those cases Edwards v. Penrheiceber and Connor v. Cadzow Colliery were imprinted on my heart as long as I had one.
The Law Society in their Memorandum have raised one new and I think important point. They say, if you want to deal with these things why not deal with pleadings and the rules about pleadings? Many years ago when I was acting in running-down cases one used to say that the defendant was driving on the wrong side of the road at an excessive speed without giving any warning of approach, without brakes or without applying his brakes, and without using any precautions whereby an accident could be avoided. The defence used to reply in kind with a blanket denial of everything: "If we have not specifically denied it then we deny it now." That there has been no substantial alteration is shown by the Law Society Memorandum, who say that too many people get away now with a general denial.
I believe there is great value in the use of disclosure of engineers' certificates, and indeed I believe it may have increasing value because the increasing complexity of these matters makes it extremely difficult to anticipate what may be said in evidence. In my days I used to go along to a Heath Robinson garage where there was a skilled mechanic who was reputed to be able to dismantle a Bentley with one hand and put it together with the other without dislodging a nut, who was usually cloaked in four layers of oil and who would come across, wipe the oil off the back of his hands and write a speedy certificate on something which looked remarkably like a wardrobe. Nowadays I read that the reply from the professional expert comes 109 back: "I have examined this little bit of painted metal against fluorescent screens with infra-red rays; I have examined it under the electron and stereoscopic microscope; I sent it to the Soclay nuclear centre for analysis and examination by gamma spectrometry". It might well be that the gamma spectrometry would impress the Master in Chambers rather more than it would impress anyone who had heard the evidence in the case where that method was exposed by British scientists.
There is a great deal of advantage in having a clear idea of what a case is going to be about. But what happens? The solicitor is put in the position that he has virtually to draft the report. All this information has been gained by correspondence. Friendly experts go along and have a look at it; they are asked, "Tell me, frankly, what you say". All of it is privileged from disclosure—all of it should remain privileged from disclosure, until you have a whole series of statements to be embodied in a formal report to be put before the registrar. It is placing an immense responsibility on the solicitor to say that he must suggest to the expert the sort of thing that should be there—I do not mean the answers, but he has to postulate all the necessary questions.
There might very well emerge methods of disclosing facts which should not be disclosed, methods which are deliberately used. In the case of Bartolomeo Vanzetti the district attorney asked the ballistics expert if the gun could fire the shot in question, and the ballistics expert said it could fire any shot of that calibre. The district attorney said, "The question is, could this one have fired it?"; and they evolved the form of words, "It is consistent with being fired by that revolver". That evidence stood until Vanzetti was condemned to death. You can frame your evidence. If you are preparing a report you can frame it. Can you say, in a machine case, "I went to the works, and I said to him, 'That is the second accident you have had with that machine already, and I told you about it last time I was here'"? Can one include these things as hearsay? The solicitor may be criticised either way.
I wanted to say one word about one point in the report and about which I feel as strongly as it is possible to feel 110 within the limits of a maiden speech. That is the reference to malingering—a special procedure for the malingerer. First of all, I want to say, quite frankly, that I am not sure what the term means, nor does any dictionary seem sure. It has a military or naval connotation. In my particular recollection it has relevance to a young man a month or two older than myself who went out with starry eyes and great courage to endure the most dreadful human circumstances that civilised beings have ever been called upon to endure. He broke up, and his burdens were taken away by the firing squad. That was "malingering".
What does it mean now? I say in absolute sincerity to the noble and learned Lord that in 23 years of membership for Oldham I have never come across it. We have had what I call "skrimshankers"—chaps who draw benefit and spend it on the racecourse. In relation to illness, may I quote a case which arose many years ago of a young lady, badly bruised, shocked and with contusion of the brain. Suddenly she began to lose weight and she refused food; she seemed to gain strength actually, but was losing weight and gradually appeared to be starving to death. She took to her bed and then it was found that not only had she refused food but food was hidden all over the room, concealed to try to convey the impression that she had eaten it. That was malingering, if you like—it was virtually an attempted suicide—until we called in another dietetic expert who said, with real joy, "This is a classic specimen of anorexia". Noble Lords will find it described in the medical encyclopædia now: etiology, shock, emotional or traumatic shock, prognosis virtually impossible, may be cured by affection or considerate treatment, maybe spontaneous remission, maybe death.
At the hospital at Sutton they had a wing which was called "For workshy". It was a bad word to choose. It was perhaps used only colloquially. But of course you do not send workshy people for medical or even psychiatric cure. They were men who had been broken down. One of them, I remember, had been wounded in the war and had carried on a very difficult task under very great strain. I respectfully suggest to the noble Lord that he really should wonder whether it is right to make an 111 exception in favour of insurance companies. I do not know how you find and detect a malingerer. I do not know what tests you apply—taking the man by surprise and testing his nervous reactions when he is not looking, or taking notes on a tape machine, or conducting a secret investigation. It does not sound a very pleasant process. But surely the man is entitled to know.
What does the solicitor do when the registrar has refused to grant a certificate because the man is alleged to be malingering? Does he say to the man, "You are accused of malingering". He must. Does he send him home under that intimation? Does he leave him there, getting worse and worse as he awaits the trial? Is this something worth while, reversing the normal procedure and, if I may say so with great respect, to some extent standing the law on its head? Because were he accused of the crime of obtaining money from the insurance company he would have all the particulars furnished to him, but here he is accused in a civil action and is deprived of any information of the offence he is accused of. I ask for these matters to be considered I apologise if I have exceeded my time; I hope I have not. I am grateful to your Lordships for listening to me and grateful for the privilege of being here and being able to participate in the debate with the noble and learned Lords who have shown so much courtesy and consideration in relation to these remarks.
§ 8.0 p.m.
§ LORD STOW HILL
My Lords, one of the most valued privileges of membership of this House is being called upon from time to time, in your Lordships' name, to bid welcome to a new Member and to thank him for his contribution when he makes a maiden speech, and that is a privilege which I exercise with extreme pleasure at this moment. We are discussing expert witnesses, and I can speak as an expert witness, in every sense qualified within the definition contained in the Law Report Committee's Report, when I say that we shall all greatly benefit and derive enjoyment and advantage from the companionship of my noble friend in our circle over the years. I speak as an expert witness because for many, many years, day in and perhaps 112 I might say night out, I sat side by side with my noble friend, and the noble and learned Lord sat opposite him. I think that qualifies both of us as expert witnesses to say that his speeches will add greatly to our debates. They will enliven them and enrich them, as did his maiden contribution to-day, and I, for one—and I am sure all of your Lordships also—shall be very glad to see him with us and to hear him as time goes by.
We are discussing the question whether there should be a power to order the preliminary disclosure of some—and I emphasise the word "some"—experts' reports; those experts' reports which come within the very narrow limits of the definition which is contained on page 15 of the Law Reform Committee's Seventeenth Report, part of which has already been read out to your Lordships by my noble and learned friend Lord Gardiner. I think that definition is so important that I should not be trespassing unduly on your Lordships' time if I just reminded you once more of precisely what it was that the Law Reform Committee was recommending. It was recommending disclosure of reports which came within the following description:(a) is appropriate in cases where the expert's report may be expected to be based upon facts which are either agreed or can be ascertained with reasonable certainty by the expert himself by the exercise of his own powers of observation or are within his general professional knowledge or experience".The report, in order to qualify for compulsory preliminary disclosure, has to pass within those narrow gates. The Law Reform Committee went on to excludecases where the expert's report may be expected to be based to any material extent upon a version of facts in dispute between the parties which has been supplied to him by the party on whose behalf he has been instructed.With great respect, I once again, when we are discussing this matter which is of importance, call attention to and dwell upon that distinction. Where you have a report which is a report on facts which the expert knows well—they are recorded, there cannot be much dispute about them—that is the sort of report which the Committee thought should be disclosed. Where you have a report which depends upon facts not yet ascertained, facts which are in dispute, facts which in due course will be examined 113 and elucidated at the hearing of the case, then that report, based on facts which are uncertain in that sense, is, in the view of the Committee, not suitable to be ordered to be disclosed before the hearing of the case.
I listened to my noble and learned friend Lord Gardiner. I heard his strictures of the Rule Committee. We are not discussing an Amendment about the composition of the Rule Committee. It may well be—I do not know—that there could be improvements in the structure of the Rule Committee, but that is not before this Committee of the House at all. The Rule Committee is an entirely different matter. What we are discussing is the simple question: should that limited category of reports be made subject to a power to order preliminary disclosures? In my submission, the answer to that should be, Yes.
My noble and learned friend Lord Gardiner made some statements which rather surprised me. One statement—and I hope that I do not report him inaccurately—was that learned judges do not know what causes or increases costs in the preparation of litigation. It may well be that if somebody asked my noble and learned friend Lord Diplock to prepare a bill of costs in statutory form, he would find some difficulty about it. I do not suppose he has done it. He has probably seen dozens and dozens of them. So, no doubt, have the other six judges who constituted the majority of the Law Reform Committee. To say that they do not know what causes costs in litigation is to say something which, to me, is altogether astonishing. In this country we follow what I think is such a very sensible procedure: we appoint judges from the Bar. Now some judges are to be appointed from practising members of the solicitors' profession. But we limit our appointment of judges to persons who, for years and years, have had their noses rubbed into the angles of the actual conduct of proceedings. We watch them as they progress in their profession—when I say "we" I am arrogating to myself a function which I do not possess, but the noble and learned Lord does this, as have his predecessors, and I am sure that they will agree with me. They watch their character, their prowess as advocates and their general experience; and their common sense and their broad wisdom are considered. 114 In due course, when they have reached the appropriate stage, the question is determined as to whether they can be recommended to Her Majesty as suitable appointees to the Bench.
To treat persons of that sort as persons who are novices, tyros, in the matter of What causes expense in litigation, seems to me really miles away from reality. I just cannot accept it. In many countries on the Continent they appoint judges from a special school for judges, which I have always thought a great mistake. I have always thought that our own system is infinitely better, because you appoint people who know what they are talking about, who know the problems which actually confront practitioners and the sort of points which have to be looked out for from the Bench.
I go further and say this. It may well be—and I certainly would not take it upon myself to deny it for a second—that the Law Society and the Bar Council are perfectly right in saying that if reports are ordered to be disclosed in advance, that, in the cases in which it is ordered, will occasion more expense. I certainly would not take it upon myself to contradict the view of either of those two bodies which have such great experience. One of the points of my noble and learned friend Lord Gardiner with which I agreed was when he said that courtesy requires that we should give most careful consideration to their views. I have done so and I have examined both Reports most carefully. I have certainly pondered upon them, and I am certain that every other noble and learned and noble Lord who has taken part in this debate will have pondered them equally. But the sort of reports which will qualify for preliminary disclosure, in terms of the definition in the Law Reform Committee's Report, are generally—not always—and very frequently reports in weighty matters. If one is talking about the report of a chemist, the report of an economist, the report of an accountant, the report of a physicist or something of that sort, then one is probably concerned with some litigation which involves a considerable amount of money, and if some more expense is occasioned in litigation of that sort then so be it, provided that there is a compensating advantage.
I personally am very much impressed by the fact that six judges, with their 115 experience, think that this is a proper course. I am impressed by that consideration for this reason. Learned judges who have tried cases are uniquely qualified to tell the Committee what is the help that they expect from counsel; and if they have found that counsel perhaps have not been able to give them quite the degree of help that they would have hoped for when counsel has been suddenly confronted with a complicated report and with the duty of cross-examining on that report without having previously considered it or knowing its contents, then it seems to me that we ought to give great weight to that view of the judges. They, and they only, are able to speak of the help that they want from counsel, and perhaps to hint that possibly that help is not always forthcoming under the existing system. That carries very great weight with me. They are very much better qualified to express views on that topic than are practising members of the Bar.
Then, does it provide a compensating advantage for extra expense caused if reports have to be disclosed beforehand? I should have thought, "Almost certainly, yes". One way in which it compensates is that it enables the judge, I should have thought—and I imagine that that is the view that they formed themselves—to be more confident in concluding that he has reached the right answer in the litigation that is before him. That is one point. On the pure matter of £.s.d. I should have thought also that there was a compensating advantage because if counsel has already had his mind directed to the relevant points in the reports before the court he can go straight to those points and can confine his cross-examination to those points; he can be sure that he is ready with the necessary questions to test the reports on those points; and a great deal of judicial and public time, I should have thought, was in consequence likely to be saved.
Your Lordships may have divined from what I have said that I personally do not feel able to agree with the view of my noble and learned friend. I personally feel very strongly convinced, much more than when I first studied this Bill and when I spoke on Second Reading, that the view of the majority is right. 116 When I spoke on Second Reading I spoke somewhat hesitatingly. I have since given it much more careful consideration, and have again re-read the material with great care. Having done so, speaking for myself, I very much hope that the noble and learned Lord, Lord Diplock, will adhere to the view of the majority of the Law Reform Committee in the recommendations that he makes to this Committee as to the way it should vote.
§ 8.18 p.m.
§ LORD PEARSON
I wish to be quite brief because I am well aware that several noble and learned Lords wish to address the Committee, but I think I ought to say a few words to explain the point of view of the majority of the Law Reform Committee, who made this recommendation, among others. I am happy to say that we were of one mind on all other points, but on this one point there was a difference of opinion. I would of course be the first to say that it is an admirable thing that the point of view of the minority has been so ably and fully put before your Lordships' Committee. It is very right and proper that the view of the minority, supported by the opinion of the Bar Council and the Law Society, should be fully considered. But in spite of that I am not able to agree with them.
The way in which I would approach the question is this. We have had experience for quite a number of years of the advantages of the parties' medical reports in personal injury cases being exchanged with a view to an agreed medical report being produced if possible. I can remember the time when there were no such agreed medical reports and no provisions for exchange. I can even remember the days of workmen's compensation, when it was expected that the two medical experts would be called on the two sides and would disagree on almost everything; and it has been to me a very pleasant surprise to find what a very great change has been made by the now well recognised routine—almost routine, but on a purely voluntary basis hitherto—of medical reports being exchanged. The result has been that in a great many cases an agreed medical report has been produced; and even when it is not possible for the medical experts to agree on all aspects of a case they can very often agree on a substantial 117 part of it, and only a comparatively small part is left to form part of the oral medical evidence on both sides.
The advantages of the practice now proposed to be made into a more fully formalised procedure are several. First, there is the advantage that in many cases the practice of exchanging medical reports facilitates the settlement of cases, with all the advantages which that brings; and even if the whole case is not settled it may be possible for the parties to agree that a certain sum shall be awarded to the plaintiff if he is successful on the issue of liability. Secondly, the effect of this now well-recognised practice is that a great deal of time is saved at the trial, and the saving of time means a saving of costs. Thirdly, it is of great benefit to the experts themselves in that they will not have to attend court for long periods. It is very difficult to know exactly when a particular case will come on to be heard—the case in front may last much longer than expected—and in the old days the medical experts, doctors on both sides, had to hang around the courts for a very long period when they might, one thinks, more profitably have been attending to those who needed their professional ministrations.
That is the third advantage; but the fourth advantage, and the one which I should like to stress, as my noble and learned friend Lord Stow Hill has stressed, is the advantage to the administration of justice by the courts. My noble friend has said, very rightly, that sitting on the Bench one feels much more confidence if there has been a preliminary disclosure of medical reports, so that the medical witnesses, when called, and those learned counsel who have to conduct the examination and cross-examination of them, are well aware of what are the real points in issue, and therefore what are the points to which they ought to direct their evidence and any preliminary researches in preparation for the case. I emphatically believe that the administration of justice can be conducted much more efficiently if there has been preliminary disclosure of the expert reports on the two sides in the medical field, because that is the field in which we have ample experience.
As noble Lords will have appreciated, so far there is no dispute that this well-recognised practice of exchanging medical reports ought to be continued and ought 118 now to be reinforced by some compulsory powers if the Rule Committee decide that that is desirable and necessary. The only dispute, then, is this—and it is a comparatively small point. Should there be the possibility of extending this system, already well proved with regard to the reports of medical experts, to other expert reports? One is bound to ask, "Why not?" Why should one not seek to obtain similar advantages in other fields? It is important to observe that the provisions which the noble and learned Lord, Lord Gardiner, seeks by this Amendment to remove from the Bill are provisions of a very moderate character. They empower the Rule Committee to make such rules as the Rule Committee see fit to make. I may perhaps be forgiven for mentioning that I was a member of the Rule Committee for a considerable number of years, and I did not realise at that time that there was anything wrong with the Rule Committee's composition. Perhaps one ought to have seen further. At any rate, this will have to be considered by the Rule Committee. They will have a pretty free hand because the Act does not lay down much in regard to procedure.
There are in the actual Report a number of suggestions as to what the procedure might be. We thought it right to go into some detail in order to see as best we could whether some workable procedure could be devised. But those mere suggestions made in the Report as to what the detailed procedure might be will in no way bind the Rule Committee. We hope that our suggestions will be of some use, but it will be entirely for the Rule Committee to make up their own minds as to how these things should be worked. I should have thought, after that if the Rule Committee do make rules they will be rules which empower the Court to make orders. The Court will not be required to make orders; there will simply be a power. Of course the power will be exercised in those cases which seem to the learned Master (usually it will be a Master) to be suitable cases. All that has been said on this side may supply very important and strong reasons for not making the order in a number of particular cases. It must depend on the particular case.
Why I am wholly unable to adhere to the Amendments that have been proposed 119 is because I think the possibility should be kept open; there ought to be the power. As this system has worked so well in one sphere, there ought to be power to extend it, in suitable cases, to other spheres where other experts are concerned: architects, surveyors, valuers, and all kinds of experts. Surely there must be a number of cases in which such experts, if they exchange reports, will be able to reach the same kind of agreed report as now very frequently one finds the medical experts are able to produce. On that basis, that this is a very moderate provision enabling useful experiments to be made—with, I would say, a very good chance of success in a considerable number of cases—I would urge that this present clause be left unaltered and that the Committee do not accept the Amendments proposed.
§ 8.23 p.m.
§ THE LORD CHANCELLOR
I do not wish in any way to curtail this debate, but I thought it would be convenient if, speaking from the Government Front Bench, I indicated the line that I hope the noble and learned Lord on the Cross-Benches who is in charge of this Bill, which is a Private Member's Bill, might take in relation to the Amendment proposed by the noble and learned Lord, Lord Gardiner. Before I do so I should like to join with every word that the noble and learned Lord, Lord Stow Hill, has said about the maiden speech—an unusual maiden speech, if I may be permitted to say so—from the noble Lord, Lord Hale. The truth is that we all have known him for many years and regard him as an old friend. The noble Lord, Lord Stow Hill, of course is a member of his Party and I am not; but I can assure him that the warmth of feeling expressed from the Opposition Front Bench is fully shared on this side. He will be welcome as often as he comes, and we shall be greatly encouraged and improved by the content of his speeches. I hope that, as it was a slightly unusual speech, he will allow me—though it is perhaps not in accordance with convention—to answer some of the arguments he advanced, but it would be an added courtesy if I referred to some of his remarks as I go along.
I think it is important that we understand exactly what we are talking about. 120 This has been rather an esoteric discussion, if noble Lords will allow me to say so, between members of a profession who rather tend to assume a knowledge on the part of lay members of the Committee which they may not necessarily have. May I try to put the thing in my own language? Of course the courts very often have to deal with pure questions of fact. Were certain words spoken? Was a certain document executed by the person whose signature it appears to bear? Was somebody present at a conversation or not? In that case, you are dealing with an issue of fact as to which expert evidence is not required and as to which the ordinary practitioner can make up his own mind with confidence both about the line he wishes to take in cross-examination and about the evidence which he may wish to call in rebuttal. The learned judge, when he hears it, with the experience of a lifetime behind him, as the noble Lord, Lord Stow Hill, reminded us, can apply his mind to the question of fact (and with a jury trying the case the jury can apply their minds in the same way) using ordinary common sense.
But litigation is not always, and perhaps not often, as simple as that. You get a large number of questions in dispute which are matters of opinion as to which the lawyer as such cannot offer a useful view of his own. They can be questions of medical expertise; and the noble and learned Lord who has just spoken gave a number of other examples of matters known best to architects, physicists, accountants, valuers. Almost every expert profession is at some time called upon to give testimony as to a complicated technical question within its own special knowledge. Of course the lawyer is not as familiar as the expert with that field, yet the judge or the jury have to make up their minds as to which is right.
I can only speak from my own practical experience. It is difficult, if you do not know in advance what the expert is going to say on the other side, either to take your own line or to know what line to take in cross-examination or what evidence to call in rebuttal. In practice you have an expert of your own sitting behind you, hastily whispering or writing notes telling you why the other man is wrong, and all the time you are uneasily 121 aware—at least I have been in my own experience—that if the two experts had only got together in advance and discussed the matter, a great number of the points at issue would turn out to be mere misunderstandings, and the whole question would eventually resolve itself into one or two perfectly simple, definable questions as to which the court would ultimately have to make up its mind.
What the noble and learned Lord, Lord Gardiner, is arguing for is to make both sides fight in the dark as to what the other side is going to say in matters requiring technical knowledge. This of course makes advocacy much more exciting, and perhaps it puts the skilful advocate, as was the noble and learned Lord in his days as an advocate, at a great advantage over the unskilful advocate. But it also puts the judge in a difficult position. It means that the cross-examination is less effective; it means endless time wasted on unnecessary disputation about matters which could have been resolved if the parties had played their cards face upwards, and no doubt in the end the judge has less material available on which to arrive at a shrewd and correct conclusion.
In passing, I must say, with the noble Lord, Lord Stow Hill, and against the noble and learned Lord, Lord Gardiner, that although I am necessarily, in my present position, as keen as anybody on reducing litigation costs, I am even more keen on getting a correct result, because in the end the standing of the profession and of the Judiciary depends on not making mistakes and getting the right result rather than on the saving of a few pounds and getting a cheap and quick one—although, as I say, I am eager for the latter. Like the noble and learned Lord and like Lord Hale, I can well remember the workmen's compensation cases. One of my earliest tasks was to cross-examine no less a person than the father of the noble Viscount, Lord Eccles, when the issue was whether or not a hernia existed—something which could have been ascertained by inspection and of course would never have been disputed if the present practice had been in operation.
But for donkey's years now in medical cases the parties have been compelled, more or less, to play the game with the cards face upwards; and the modest proposal of the majority of the Committee is 122 that the system which has proved successful in medical cases can be extended, if the Rule Committee can devise a way in which it can be suitably extended. And if I am asked why, I hope that I have said enough, from the commonsense point of view of the ordinary practitioner, to be able to reply rather boldly to the noble and learned Lord, and to the Bar Council, and to the Law Society (whose views I normally respect very much): "Why on earth not, if the object is to find out the truth, to save time in needless points of unnecessary dispute and to enable counsel to know in advance—in a very highly technical matter of which he has no personal skill—how to conduct his case and arrive at the real issue in order to present it effectively to the court?"
Why on earth not? Why not give the Rule Committee that power? Of course I do not complain that the noble and learned Lord has put down this Amendment. He has, perfectly correctly, prayed in aid the view that the Bar Council and the Law Society are entitled to be heard in your Lordships' House. If I may say so, no one is better qualified to put forward their point of view than he is; and as usual he put it forward extremely well. But at the end of the day I am bound to say that there was one thing he was not entitled to say; that is, that there is a united profession. It is of course true that the Bar Council and the Law Society both, by a majority, take the same attitude, which is not always the case. But the profession is not united about this subject. Of the Committee whose Report we are seeking to implement, two of the five practising members of the profession were on the side of the six judges so that the others had a majority of only one out of the practising members in the Committee.
I must say, frankly, that I agree with the criticism by the noble and learned Lord, Lord Stow Hill, of the noble and learned Lord's strictures on the Rule Committee. I agree with the noble and learned Lord, Lord Stow Hill, that this is, strictly speaking irrelevant to the present dispute because the Committee is well able to make up its mind on the merits of the argument without considering the composition of the Rule Committee. It remains true that the recommendations 123 in the Evershed Committee's Report to which the noble and learned Lord referred, about the composition of the Rule Committee, were put forward as long ago as 1951. The noble and learned Lord, Lord Gardiner, managed to sit on the Woolsack for a very long time, with great distinction, and he never thought it right to change the composition of the Rule Committee. To bring forward now that the Rule Committee is improperly constituted, when the point is any way irrelevant to the question under discussion, is, I should have thought, an ignoratio elenchi of the worst possible kind.
The truth is, of course, that the practising profession is represented on the Rule Committee. There are two barristers and two solicitors: that is four. It is true that the judges are in a majority, especially if you consider the Lord Chancellor a judge, which he is; although in the case of the noble and learned Lord, Lord Gardiner, and also in my own case, we came straight from the Bar and have more than a little recollection of our experience as advocates behind us. But the judges are in touch with the Masters of the Supreme Court. They do not gang up, like a sort of closed caucus, on the Rule Committee to vote against the members of the practising profession. The matter is threshed out in the Committee and nobody tries to "steamroller" anybody else.
In the last resort what the Rule Committee does is to try to make up its mind as to what is practicable and what is desirable. In this particular matter I should have thought that the judges had something rather useful to say. There is no doubt that the practising members of the profession—I tried to make this point on Second Reading—get great excitement out of playing their case with their cards pressed closely to their chests so that no one can see their hands. But judges know what it is like to try a case, and to have to try a case conducted in that way must be very difficult. I think it significant that the judges who have that expertise all want the majority view to be put into effect.
That brings me to the second speech which was, I fancy, made in support of the Amendment, though I was not quite 124 sure; namely, the speech of the noble Lord, Lord Hale. It was not of course a matter of coincidence that a number of his examples were medical examples. There was the case of anorexia to which he referred, and he referred to experience of miners' nystagnus. Also there were his remarks about malingering. But the fact of the matter is that, except in the case of malingering, the proposed practice is already operated and has been for donkey's years; and the only question is whether a successful practice of this kind should be extended to other kinds of expert testimony. It was not, I think, without relevance that in the one example which the noble Lord gave from outside his experience of non-medical testimony—namely, the Vanzetti case (although it was a criminal case and therefore outside the scope of the present discussion)—if the ballistics experts had been able to agree their reports in advance I wonder whether that damaging piece of testimony, which was really inconclusive, would ever have been given at all. I should have thought that if there were a case against the Amendment and for the Majority Report it could be the Vanzetti case translated into civil terms.
That leaves me at the end completely convinced that we must go ahead with the Majority Report. I would very strongly urge the noble and learned Lord, who proposed the Amendment so well, to decide on reflection that it is not worth taking it to a Division, because his view has now been thoroughly aired. I must say that if it were taken to a Division I would strongly recommend, with the noble and learned Lord, Lord Stow Hill, that the Committee reject the Amendment.
§ 8.39 p.m.
§ LORD SIMON OF GLAISDALE
Before speaking to these Amendments I hope that I may be allowed to be associated with what was said so finely by the noble and learned Lord, Lord Stow Hill, and the noble and learned Lord, the Lord Chancellor, about the speech of the noble Lord, Lord Hale. Because, like them, I was a colleague of Lord Hale in another place and was constantly entranced by his eloquence, his wit and his generosity of spirit. It is a great privilege to be able again to follow him in debate. I venture to intrude in this debate because I think that, of all 125 your Lordships, I am the one who has most recently been concerned with trials at first instance. Also I was for many years a member of the Bar Council. My second spell was under the chairmanship of the noble and learned Lord, Lord Gardiner, and I think I could be acquitted of any lack of sympathy with the views of the practising profession. Nevertheless, I am entirely convinced that the view of the majority of the Committee, the measure proposed in the Bill, is right, and that the measure proposed in these Amendments is misconceived.
It is not only my own view that I venture to put forward. It is not only the view of the majority of the Law Reform Committee; it is not only the unanimous view of the Winn Committee. It is also the view expressed at one time by the noble and learned Lord himself, because, as he reminded us, he was a member of the Evershed Committee; and on this matter they were unanimous. They were dealing, as he put it, with pure questions of practice. This is what the noble and learned Lord himself said in signing that Report. I am quoting from paragraphs 289 and 290 of the Final Report, where they say:A party is apt to rely on his expert's evidence as producing an element of surprise. This often leads to a waste of time and does not assist the Court in coming to an accurate decision as to the facts. The element of surprise is no doubt good tactics under the Rules as they exist at present and on the principles generally adopted today in contesting cases. In our view this element of surprise does not conduce to decisions in accordance with the true facts. The more this element is eliminated, the more correct is likely to he the judgment of the Court. It is, therefore, eminently desirable that each party should know what is the expert evidence to be called for the other side.And they go on to make the recommendation that the Bill implements. They also, in the following paragraph, refer to the saving of time and money in the proposal. I find myself entirely in agreement with what is there said.
I desire to add only two things. The first is that this Amendment does not merely preserve a status quo; it does not merely stand in the way of a valuable reform: it is actually retrogressive. The first Amendment would limit the exchange of reports to personal injury cases. It would therefore prevent it in a field in which it has been found to be very valuable; namely, in infant cases, where 126 there is constantly a dispute about the medical evidence relating to the child. Since 1967 there has been a Practice Direction stipulating for the exchange of medical reports in those cases. It is really quite fantastic to say that the proposal is unworkable when it has been found to work now over a period of five years.
The second and third Amendments limit the expert evidence which must be disclosed before trial to medical evidence. But since 1968 there has been a Practice Direction that in Admiralty cases expert reports must be disclosed before trial. That has caused no sort of difficulty, but has worked perfectly well. Yet if the Amendments are carried that, too, will have to be abandoned. If these things can be done by Practice Direction, there is, in my respectful submission, every advantage in having them scrutinised by the Rule Committee and for them to receive statutory force in that way. I therefore hope that the noble and learned Lord will withdraw his Amendment. If he does not, I must say that I shall feel bound to vote against it.
§ 8.45 p.m.
§ LORD DIPLOCK
I should like to associate myself with the congratulations to the noble Lord, Lord Hale, upon his maiden speech in this House. Those who have previously congratulated him have had the privilege of hearing him before: for me, it was a novel privilege, and I hope that it will frequently be repeated. I should also like to thank those noble Lords who have spoken on this Amendment. Those who have spoken against it have, I think, said pretty nearly all that needs to be said. I am however, grateful to my noble and learned friend Lord Gardiner for having aired the minority view and the view of the Law Society and the barristers. However, I hope that after this debate he will not continue to press the Amendment.
The Amendment accepts the principle that it is right that medical reports should be exchanged in personal injury cases, but says that in no other circumstances whatever and in no other kind of case should there be power to exchange reports of any other kind of expert. So I ask myself: what is so special about medical reports? The only answer I can find is that barristers and solicitors have grown used to exchanging them now for thirty years, and that practice has proved 127 useful. In nine out of ten personal injury cases at least that practice is followed voluntarily, and followed, I venture to think, because if the parties put their cards on the table it has been found to reduce costs and the length of litigation, and moreover—and very important indeed—is conducive to the just settlement of cases.
The same argument which is now being addressed against the exchange of reports of other kinds of witnesses would have been advanced thirty years ago against the order to exchange medical reports. We should have been told about the expense, the delay and the necessary conferences over the settlement of the medical report. Why should this expense be involved? Experts such as surveyors, dealing with dilapidations or the state of buildings, engineers dealing with machinery, chemists, valuers, all equally satisfy the criteria referred to by my noble and learned friend Lord Stow Hill and suggested in the Majority Report as being the appropriate criteria. When I was trying cases I saw dozens of these reports, because when an expert witness of that kind was called I asked whether he had a report, and if he had I asked him to show it to me, because it saved my taking a great many notes.
The suggestion that it is more difficult to produce that kind of report than it is to produce a medical report baffles my imagination. The trouble is that lawyers as a profession, bold though some of them may be—and my noble and learned friend Lord Gardiner is one—in reforming the substantive law, the moment that there is some suggestion that there should be the slightest change in the way in which they practise their mystery or their craft, are the most timorous of creatures on God's earth. I believe—indeed I have no doubt—that the fears of the Law Society and the Bar Council on this very slight change in the way they practise their mystery will prove unjustified. But if this Amendment is carried it will be quite impossible to prove whether those fears were justified or not. On the other hand, if this Amendment is rejected and their fears, contrary to my confident belief, prove to have some shadow of foundation, the Rule Committee either will not extend the power to compel exchange of other reports 128 or can modify or revoke the rules in the light of experience. I invite this House to give them a chance, and I hope that my noble and learned friend will not press his Amendment.
§ LORD GARDINER
It is obvious that my Amendments do not appeal to the Committee and I do not propose to continue the discussion any further. I am grateful to the House for the consideration which has been given to them. I have achieved my object, in that the Bar Council and the Law Society will now know that careful consideration has been given to their views in this House. There is the additional advantage in that it has led to a maiden speech from my noble friend, Lord Hale. It was, if I may say so, a great pleasure to me to hear him. I am only sorry that his maiden speech was not made in a fuller House, but I hope that very soon a fuller House than this will hear him again. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clauses 3 to 6 agreed to.
§ House resumed: Bill reported without Amendment; Report received.