Setting the Agenda
13 March 2018
Four days after surgery to reverse the Claimant’s ileostomy his colon became ischaemic due to damage to the blood supply to the bowel and had to be removed.
The Claimant’s case was that the surgery was performed negligently, causing the damage to the blood supply. The Defendant denied negligence and contended that the damage had been caused by a naturally occurring blood clot.
The parties agreed that – whilst both very rare occurrences – these were the only two explanations for the damage, neither of which had been described previously in medical literature.
The (interlinked) issues were therefore:
- Factual causation: was it more likely that the damage was done during surgery or through natural causes?
- Breach of duty: if the damage was done during surgery, was the surgery performed negligently?
Legal principles on burden of proof
Whilst it was clear that the Claimant bore the burden of proof on both issues:
• In considering the factual causation issue, reverting to the burden of proof was a last resort to be adopted only if the court were unable to resolve an issue of fact by examination and evaluation of the evidence.2
• Where the Claimant could not give direct evidence regarding the surgery (being under anaesthetic), it was open to the court to make a finding of fact by means of inference when there was no direct evidence of the events in issue.3
• Where the Claimant’s expert offered various possible mechanisms of injury, none of which were consistent with the exercise of reasonable care and skill, in the absence of satisfactory explanation from the Defendant, the court could conclude that negligence had been proved.4
The claim was dismissed for the following reasons:
• Factual causation:
o The possibility of either of the explanations for the damage could not be excluded by the colorectal expert evidence alone.
o The only direct evidence of what happened during the surgery was from the surgeon (the Claimant being under anaesthetic). Neither he nor the Defendant’s expert could see how the damage in question could have been caused during the surgery in question, during which nothing unusual happened.
o There was an absence of a clear explanation of the mechanism of surgical injury – the Claimant’s expert was only able to offer a range of possible explanations and an apparent temporal link, the latter in fact going to support the Defendant’s case.
• Breach of duty:
o Whilst it was not necessary to decide this issue, the Claimant’s expert had suggested that the Claimant’s anatomy may have been particularly easy to damage.
o Accordingly, it was unclear how the damage could be said to have resulted from the surgeon falling below the relevant standard.
Expert agendas and joint statements
Mrs Justice Yip criticised the experts’ joint statement for failing to fulfil the purpose in CPR 35 PD 9.2 “to agree and narrow issues”, as well as the (two separate) agendas, on which it was based. She gave the following guidance:
• The joint statement is an important document, from which it ought to be possible to understand the key issues and each expert’s position on them.
• Sometimes less is more (here, 60 pages was too long and the questions were repetitive).
• Parties should seek to agree a single agenda, with input from counsel if necessary.
• Parties should adopt a common sense and collaborative approach rather than allowing this stage of the litigation to become a battleground.
Aside from their purpose, as summarised above, further guidance from the author and various sources (where indicated) on expert agendas and joint statements is as follows:
o The agenda should indicate: areas of agreement, areas of disagreement with short reasons and any action which may be taken to resolve them, any further material issues not raised.5
o It is often helpful to include questions to be answered by the experts,6 but only those relating to the legal and factual issues.
o The agenda must not be in the form of leading questions or hostile in tone.7
o As far as possible, it should contain closed questions i.e. with a ‘yes’ or ‘no’ answer.8 However, open questions can also assist in the correct circumstances.
o The parties, their lawyers and experts should cooperate to produce an agenda but the primary responsibility for its preparation should lie with the parties’ solicitors.9
o Unless the parties agree otherwise, the usual process should be for the Claimant’s lawyers to prepare the agenda, for the Defendant’s lawyers to supplement it if so advised, and then for the same to be mutually agreed.10
• Challenging the other side’s agenda: when reading the other side’s agenda, if the answer to any of the following is yes, it should be challenged:
o Does it lead the experts?
o Does it put the other side’s case?
o Does it get the law wrong?
o Does it omit relevant matters or include irrelevant matters?
o Is it otherwise offensive?
• Failure to reach agreement:
o Because of their tactical importance, it is not unusual to end up with two agendas, as in Saunders.
o If agreement cannot be reached (or a party is unrepresented) the court may give directions for the drawing up of the agenda.11 Such a hearing is not mandatory, and from the parties’ perspective is an inconvenience and extra expense.
1  EWHC 343 (QB)
2 Barnett v Medway NHS Foundation Trust  EWCA Civ 235
3 O'Connor v The Pennine Acute Hospitals NHS Trust  EWCA Civ 1244
4 Thomas v Curley  EWCA Civ 117
5 CPR 35 9.2
6 CJC Guidance
7 CPR 35 9.3
8 Clinical Disputes Forum Guidelines. The author observes that, strictly speaking, questions inviting ‘yes’ or ‘no’ answers are by definition leading questions. Nevertheless, the Guidelines are directed at prohibiting questions which go further by putting contentious propositions as opposed to seeking expert opinion on the point of contention in an open question.
9 Civil Justice Committee Guidance: https://www.judiciary.gov.uk/wp-content/uploads/2014/08/experts-guidance-cjc-aug-2014-amended-dec-8.pdf
10 Clinical Disputes Forum Guidelines
11 Clinical Disputes Forum Guidelines