In his judgment dated 25 January 2025, the court provided an important reminder to experts of their duties pursuant to Part 35 of the CPR.

In Remiszewski v Gloucestershire County Council (2025) 1 WLUK 10 January 2025, the claimant tripped and fell sustaining fractures to her left ankle.

Whilst the defendant accepted she had been injured, it was alleged her residual symptoms were caused by a pre-existing arthritic knee.

At trial, the judge heard medical opinion from two consultant orthopaedic surgeons who agreed on all matters save for the attribution of residual symptoms and level of disability.

The expert instructed on behalf of the claimant opined all were as a result of the injuries to the ankle.

The judge noted the claimant’s pre-accident medical records confirmed she had difficulties with pain and instability of the knee for three years prior to the accident and x-rays showed moderately severe degenerative changes.

After the accident, the claimant continued to present with these symptoms albeit she told her treating clinicians they had become worse.

Whilst the claimant’s expert referred to these records within his report, the judge was “greatly surprised” to note he did not provide any opinion whatsoever as to the relevance of the knee problems and did not take the opportunity to provide some reasoning within the joint statement.

During cross examination, the expert claimed only to refer to the records which dealt with the ankle injuries and conceded he had not asked the claimant any questions about her knee.

The reason for this was because his instructions limited him to consideration of the ankle and in that context, the knee was “irrelevant”.

The judge observed this to be in ignorance of his duty pursuant to Part 35 of the CPR which is to help the court on matters within their expertise and this overrides any obligations to those who have instructed and/or paid them (emphasis added).

This is supported by the Practice Direction which compels experts to consider all material facts, including those which may detract from their opinions.

To comply, the expert should have provided a reasoned opinion as to why the knee problems are not causative of the residual symptoms.

As a result, the judge concluded the evidence given by the expert was not balanced and, in fact, he made a conscious effort to attribute everything to the ankle for tactical reasons.

In short, this is not an appropriate way for an expert to conduct themselves.

Gemma Quinn is a Legal Director in the catastrophic and large loss injury team based in Manchester and member of the Expert Subject Matter Group.