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Expert medical reports: to disclose or not to disclose?

Often the first tactical decision a Plaintiff must make in a personal injury claim is when to disclose their medical report to the Defendant.

Plaintiffs will need to weigh up the potential advantage of providing a strong report, which may encourage a Defendant to settle without the need for court proceedings; against the possibility that a Defendant might use the knowledge it gains from the report to find another expert willing to provide an alternative opinion.

In England and Wales, there are rules which require Plaintiffs to disclose their medical reports to Defendants at certain stages. There are no such rules in Jersey, where there is no separate regime governing procedure in personal injury cases.  Without such rules, Jersey practitioners are not required to treat personal injury claims any differently to other types of civil litigation.

Despite the lack of legislation, practitioners who specialise in this area will endeavour to follow the rule of England and Wales, which may assist the parties in settling the dispute more expediently. Accordingly, Defendants will frequently receive medical reports from Plaintiffs before proceedings are issued.

Reassuringly, the recent case of Ure v The Minister for Economic Development [2015] JRC256 approved this approach. It also acknowledged that in some cases Jersey will be different from England and Wales and will not insist on the Plaintiff disclosing their expert medical report before receiving the Defendant’s.

In the case of Ure, the Plaintiff sought damages for an injury caused at Jersey Airport. The Plaintiff’s case was valued at a six figure sum.

The issue which came before the Master was whether to order simultaneous or sequential exchanges of experts’ reports in respect of causation, quantum, condition and prognosis; the parties agreeing that expert evidence relating to liability should be exchanged simultaneously.

Noting the position in England allowed for sequential exchange, the Master highlighted there was no Jersey authority on this point. However he also emphasised the Jersey law principle that “proceedings should be conducted in accordance with an agreed timetable at a reasonable level of cost and should progress to trial within a reasonably short time”.

Bearing this principle in mind, the Master determined that the issue of when the parties should exchange expert reports is one of discretion. He determined that in most personal injury cases, there is a benefit to the Plaintiff in serving their expert’s report first because it can facilitate settlement and may also save costs. However, the Master also made it clear that whilst this practice may be the norm, it will not always be applicable and “there may be circumstance where the issues are such that simultaneous exchange of reports is appropriate because there is a real and significant area of dispute between medical experts. It is not appropriate to set out what those circumstances might be because they will apply on a case by case basis and go to an exercise of discretion. However any application for simultaneous exchange of medical expert evidence would require justification to depart from the ordinary practice I have described above.”

In Ure, where the Plaintiff had already disclosed his medical report on a ‘without prejudice’ basis and the Defendant was still seeking sequential exchange of the final reports, the Court ordered the Defendant to confirm to the Plaintiff the extent to which its medical experts accepted or rejected the findings and conclusions of the Plaintiff’s medical experts. Once the Defendant had complied with this order, the Plaintiff was required to file the medical evidence he wished to rely upon at trial because, at this point, the Plaintiff would know which issues would be disputed and would have time to ask his medical experts to respond to the Defendant’s views in a separate report (if appropriate).

Whilst at first glance the judgment does little more than remind personal injury practitioners that a Defendant may be excused for not settling a dispute until the nature of the Plaintiff’s injuries can be understood, it also makes clear that Jersey will not follow the rigid rules set down in England and Wales. As such, Jersey will depart from the norm when (and if) the circumstances allow.  This is a welcome difference for Jersey practitioners who often hear English practitioners complain that they are bound to comply with restrictive rules which simply don’t allow the case to be run in the fairest way.

Viberts is preferred counsel for large international insurance companies, Unions and individuals seeking to make personal injury claims. We believe we have more experience than any other Jersey firm in this area and we represent both defendants and plaintiffs. If you need expert advice on a personal injury claim, contact us.
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