Expert evidence in cross-border cases – CPR Part 35 is not optional
Lisa Pal v Dr Luc Damen (1) Birand NV (2) [05.05.22]
In this recent High Court case, Kennedys represented the second defendant, Birand NV, with Counsel Lucy Wyles QC of 2 Temple Gardens, in an application contesting jurisdiction. The judgment of Master Cook highlights the importance of the form and content of an expert report, particularly whether the expert has complied with their duties to the court, pursuant to Part 35 of the Civil Procedure Rules (CPR).
The claimant, a UK national domiciled in England, underwent elective cosmetic surgery at a clinic operated by the second defendant in Genk, Belgium. The surgery was carried out by the first defendant, who is an independent consultant plastic surgeon domiciled in Belgium, providing services at the clinic, with use of the infrastructure that was provided by the second defendant.
The claimant alleged that her surgery was performed negligently, such that she suffered personal injury, loss and expenses. Her claim against both defendants was advanced in tort and contract, with it being common ground that the law in Belgium was the applicable law of the tort/delict and the governing law of the contract(s). Both defendants’ disputed jurisdiction.
As the claim was pre-Brexit, the proceedings having been issued before 31 December 2020, the case was subject to the jurisdictional rules contained in the Recast Brussels I Regulation No 1215/2012. In order to establish jurisdiction, the claimant had to prove that she had an arguable case against each defendant; the central issue being which party she had contracted with at the material time.
The parties’ expert evidence
The claimant’s Belgian law expert, Mr Delvaux, took the view that there was either an 'all-in contract', where the patient has a contract exclusively with the clinic which makes a commitment to take care of everything or two 'distinct contracts'; one with the clinic that provides the medical care, accommodation and medical infrastructure and the other with the treating doctor which covers the provision of medical services. Based on the evidence, Mr Delvaux believed the claimant had entered an ‘all-in contract’ and that the first defendant was effectively an “enforcement agent” for the clinic.
The first defendant’s expert, Mr Stivers, relied on the assumption that the claimant did not choose the first defendant to treat her and that the clinic did not give her any other option. However, undermining this conclusion was witness evidence provided by the second defendant which referred to the clinic’s reservation terms and conditions and the ‘declaration of informed consent’, signed by the claimant. This provided that she had the right to freely choose a surgeon or to not go ahead with the procedure with the surgeon after the first consultation and to ask for a second opinion.
The second defendant’s expert, Mr Beer (instructed by Kennedys), agreed with the two possibilities advanced by the claimant’s expert. However, having conducted an analysis of the relevant documents and case law, Mr Beer disagreed that the first defendant was acting as an agent of the clinic and instead concluded that there were two independent coexisting agreements: one with the clinic and the other between the claimant and surgeon. He took the view that the agreement between the clinic and the surgeon provided that the surgeon bears full medical and civil liability responsibility for the treatment of his patients. Further, Mr Beer also referred to the ‘declaration of informed consent’, which contains an express non-indemnification clause in favour of the clinic, such that if the surgeon made a medical error or had been negligent during his treatment, then the surgeon would be contractually liable.
The court’s decision
Master Cook considered that there was a good arguable case that the claimant entered into a contract with the first defendant but found that she failed to establish a case for the existence of a contract for medical treatment and/or medical services against the second defendant clinic. This was primarily on the grounds that the claimant’s evidence did not take issue with the second defendant’s account of the role of the clinic or the manner in which her booking was made and the fact that the first defendant had adduced no evidence to counter the second defendant’s position.
Jurisdiction was therefore established as against the first defendant but not the second defendant.
In considering the issue of jurisdiction, Master Cook concluded that whilst the report of the claimant’s expert, Mr Delvaux, was presented in a manner which complied with CPR Part 35, he found that there were parts of the expert’s reasoning which “do not withstand logical analysis”.
The Master was also critical of the format of the report relied on by the first defendant’s expert, Mr Steyvers. He noted that this evidence was problematic in that Mr Steyvers was also the first defendant’s retained attorney and therefore, not sufficiently independent. In respect of CPR Part 35, the Master specifically referred to the requirements of an expert report set out in the Practice Direction which must be followed.
The Master took the view that Mr Steyvers report, “failed to comply with practically every requirement. It appeared to me that he was acting as an advocate on behalf of his client’s position which is perhaps not surprising as he acts for the surgeon in Belgium. He did not give any proper consideration to the evidence of Ms Spronken and did not fully consider the available documentary evidence with the inevitable result that he does not provide a balanced opinion covering the range of possible opinions. The most obvious illustration of this tendency was his abrupt observation that Mr Beer’s report “contains a lot of mistakes and incorrect information””.
The Master therefore concluded that no weight could be placed on this evidence. In contrast, he found the analysis of the second defendant’s expert Mr Beer to be persuasive, noting that “he was the only expert who properly considered the factual background and contractual documentation in a balanced and logical manner”.
Further, despite being a QOCS case (the claimant being afforded QOCS protection), Master Cook ordered the first defendant to pay both the claimant’s and second defendant’s costs, despite the first defendant’s argument that it was the claimant alone who decided to bring her claim against the second defendant without any encouragement and as such the attendant costs liability should be payable by the claimant.
This case highlights the complexities of dealing with clinical negligence claims where the alleged negligence and/or breach of contract arises in a different jurisdiction, particularly as expert evidence in foreign law is central to determining the issue of jurisdiction. The judgment serves as a useful reminder that the court will pay close attention to whether the form and content of an expert report is compliant with the basic provisions set out in CPR Part 35, otherwise the evidence is unlikely to be given much, if any, weight.
It follows that solicitors should not assume that experts are familiar with CPR Part 35 and, more so, when instructing experts in another jurisdiction as they will inevitably not be familiar with the CPR provisions. The selection of a reputable and authoritative foreign law expert is therefore vitally important.