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COURT OF APPEAL (CIVIL DIVISION )

(HIS HONOUR JUDGE D GLYN MORGAN )

B e f o r e:

(Lord Bingham of Cornhill )

and

B E T W E E N:

– v –

(As administrators of the

Estate of Tapan Kumar Mukherjee ) Respondent/Defendant

(Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4A 2HD

Telephone 0171 421 4040

Official Shorthand Writers to the Court)

MR ADAM CHIPPINDALL (instructed by Messrs Rubin Lewis O’Brien,

Cwmbran, South Wales NP44 1PA) appeared on behalf of THE APPELLANT

MR ANDREW KENNEDY (instructed by Messrs Le Brasseur J Tickle,

London WC2B 5HA) appeared on behalf of THE RESPONDENT

(As Approved by the Court )

THE LORD CHIEF JUSTICE: This is an appeal by the plaintiff in these proceedings against His Honour Judge D Glyn Morgan sitting in the Newport County Court on 24 April 1997, when the judge struck out the plaintiff’s action under Order 13, rule 5(1)(a) of the County Court Rules. The plaintiff is a married woman, now aged nearly 65. On 15 October 1991 she was involved in a road traffic accident. She was driving her car, which was at the time stationary, when it was struck from behind by another car driven by a Mr Morgan. The plaintiff attended Dr Mukherjee, her general practitioner, who died some two years or so after the accident and who is the effective defendant in these proceedings. The plaintiff also attended at Pontypool Hospital on 28 October 1991, when Dr Mukherjee carried out an X-ray.

On 4 November 1991 the plaintiff, who had already instructed solicitors with a view to obtaining compensation for her accident, wrote to Dr Mukherjee a letter in which, having referred to the accident, she continued:

“Apart from leaving me feeling still very disorientated, despite the tablets you prescribed for me on the Tuesday after the accident (22nd), I still cannot sleep at night, and am still experiencing pain in my neck from the whiplash injuries caused by being thrown forward when the other car hit me.

My right foot is still very painful and I had to attend Nevill Hall Hospital last Friday (1st November) for a check-up, and was told to rest it as much as possible. Likewise my lower back which you had X-rayed at Pontypool Hospital is still very sore.

I am making the above points for your records so that when you are contacted by my solicitor or a medical representative for the Eagle Star Insurance Co. you have a current update on my condition.”

At the outset of that letter the plaintiff said that she had been advised by her solicitor to sue the other driver as being responsible for the accident.

Having written that letter the plaintiff followed it up, as described in a witness statement which we have before us. She wrote the letter, she said, so that Dr Mukherjee would have the details on record when he was contacted for a medical report in connection with the claim. She continues in her witness statement:

“Indeed, with a view to progressing my claim quickly I thereafter rang him to ask that he prepare a report detailing my injuries so that it could be sent off to the third party Insurance Company. He asked that I refresh his memory about the incident and I told him again about the road traffic accident and the X-ray that he had carried out at Pontypool Hospital. He confirmed that he recalled the matter and that he would prepare a report for me. I asked him whether he wanted to see me again before preparing the report but he said that that was not necessary. He understood and appreciated that the report was for use in connection with my claim for damages against the other driver.

I cannot now recall whether Dr Mukherjee’s first report dated 12th November 1991 was sent direct to me or I collected it. In any event, I certainly came into possession of the report because I took it into my Solicitors on 13th November 1991 so that they could send it on to the third party insurers. This report confirmed that I had had an X-ray and that my back was normal and would take a couple of weeks to settle down.”

We have a copy of the report dated 12 November before us. It simply records that, following the road traffic accident in which the plaintiff was involved, her car was hit from behind; that she attended Nevill Hall Hospital for a check up on her right foot which was still very painful; and that an X-ray of her spine done at Pontypool Hospital was normal. The letter suggested that the spine condition would take a few weeks to settle down.

The plaintiff’s witness statement continues:

“My solicitor however advised me that the report was not full enough and I therefore again approached Dr Mukherjee by telephone to ask for a fuller report describing my on-going symptoms. I again offered to call into the surgery so that he could examine me but he said that that was unnecessary and took some details of symptoms over the telephone. A further report by Dr Mukherjee dated 15th November 1991 was then again either collected by me or sent to me because I was able to take this second report to my Solicitor’s office on 18th November 1991.”

That report also we have before us. It is slightly longer. It refers to the road traffic accident and continues:

“She attended Nevill Hall Hospital on the 17th October for a check up on whiplash injuries to neck, and a badly swollen foot, which was X-rayed and found to be not broken but badly sprained. She had to return on 1.11.91 for a further check up.

I saw her at my surgery on the 21.10.91 and found her to be suffering from trauma and prescribed painkillers and sedatives and arranged for X-rays to be taken of her spine at Pontypool Hospital, which were found to be normal.

Her general condition at this time is that although her back is still causing discomfort, as is her neck, it will settle down in time. Her foot is still very painful and she has to rest it whenever possible. She is still problems with sleeping at night.”

The solicitors instructed by the plaintiff corresponded with the third party insurers who did not contest their responsibility to compensate the plaintiff for the accident. The plaintiff instructed solicitors to settle the claim with the third party insurers if they were able to do so. It is right to record that both the plaintiff’s solicitors and the third party insurers took the view that the plaintiff would do well to wait until her symptoms had subsided, but she was anxious to press ahead and obtain compensation. It was in those circumstances on about 19 December 1991 that the plaintiff’s claim was settled for the sum of £600 general damages.

It later turned out, so the plaintiff contends, that her injuries were a good deal more serious than Dr Mukherjee suggested. She had to give up work and her symptoms continued. She complains that Dr Mukherjee’s report was negligent in its prognosis of the likely future course of her condition. She furthermore claims that she suffered loss as a result of his negligence, which resulted in her settling the claim for less than she would otherwise have done and for less than she was entitled to recover. That in outline is the case pleaded in the plaintiff’s particulars of claim.

The defence pleads that the plaintiff’s claim is frivolous and vexatious and discloses no cause of action, and furthermore denies that the doctor owed a duty of care; and that the plaintiff relied on his reports in settling the claim. A plea of contributory negligence is also made.

On 27 November 1996 the defendant applied to strike out the claim as being frivolous, vexations and an abuse of process, and also because it was claimed that the deceased was immune from suit. This application was supported by an affidavit sworn by Emma Mary Hallinan, the gist of which was that the plaintiff had been determined to settle the claim quickly, even though she knew that the future course of her symptoms was not finally settled, and that in those circumstances she placed no reliance on the reports of Dr Mukherjee. It was, Miss Hallinan suggested, the plaintiff’s own fault in insisting on settlement, and the argument based on the immunity of Dr Mukherjee from suit was raised. The affidavit attached as an exhibit the witness statement of the plaintiff, which had been exchanged, and two particular paragraphs call for note at this point. In paragraph 4 the plaintiff said:

“As I will explain below, I only agreed to settle my claim for this amount because I believed that the report and prognosis prepared by Dr Mukherjee was accurate and that my injuries were not of a significant nature to warrant greater damages. Subsequent events however have proved that belief to be completely incorrect.”

In paragraph 11 she said:

“I would like to stress that at this time having had the consultation with Dr Mukherjee at the Pontypool County Hospital and seen his two reports I had no reason to think that I would not get better reasonably quickly as Dr Mukherjee had indicated. I trusted his diagnosis implicitly at that time.”

The two reports of Dr Mukherjee were exhibited to the affidavit, as was a body of correspondence between the plaintiff’s solicitor and the third party insurers.

On 7 April 1997 Deputy District Judge Parsons struck out the plaintiff’s claim against the defendant on the basis that Dr Mukherjee was immune from suit, but declined to strike out on the additional basis that the claim was frivolous, vexatious and an abuse of the process on the ground that it was bound to fail. Both these rulings were the subject of appeal, and thus the matter came before Judge Glyn Morgan on 24 April who, on the first point, concluded that the claim was indeed one that on the correspondence was bound to fail. He said at page 13C of his judgment:

“It does seem to me that if one looks at the correspondence and what actually happened at the time, this was a plaintiff who was very anxious to obtain a settlement as quickly as possible. She was obviously advised by her solicitors to wait to see whether her injuries subsided or not, as Dr Mukherjee had advised. She had been informed that the insurers were minded to request a report from a consultant if she was not prepared to accept a quite small sum of money in respect of general damages. She obviously had the possibility of consulting a specialist in mind because she herself contacted Mr Jenkins. Yet despite the advice of her solicitors, she chose to instruct her solicitors to settle the claim for the figure which she did.

When one looks at the correspondence and one sees that she was advised by the solicitors, and indeed Eagle Star were suggesting, ‘Wait to see how your injuries transpire. Wait to see what happened, because then you can get a better overall view of the claim’, it seems to me to be clear that she was not simply adopting what Dr Mukherjee was saying in the short reports that the spine would take a few weeks to settle down. On 15th November he was saying her condition of the neck and back will settle down in time, not just referring to a few weeks. It seems to me that this was a plaintiff who, irrespective of the medical reports, wanted money and was prepared to take whatever was available.

One could draw the inference perhaps that later on, when she continued to have trouble with her back, when she went to other doctors and when she received the report from Mr Tayton, she was sorry she had compromised the claim at an early stage and, being wise after the event, thought she would sue Dr Mukherjee. But when one looks at what happened at the time, and taking into account what she says in her witness statement, namely, ‘I only agreed to settle my claim for this amount because I believed the report and prognosis prepared by Dr Mukherjee was accurate, and that my injuries were not of a significant nature to warrant greater damages,’ it does not seem to me that that tells the whole story. It seems to me to be incredible. The inference must be that she was prepared to ignore any medical reports so that she could obtain a sum of money as soon as possible.

I therefore hold that it is plain and obvious that the action cannot succeed, and should be struck out as frivolous, vexatious and an abuse of the process of the court.”

On the immunity from suit point the learned judge agreed with the Deputy District Judge. Having referred to the plaintiff’s letter to Dr Mukherjee of 4 November, he said:

“It does seem to me that that indicates that Dr Mukherjee of course knew that the information he was asked to give to Eagle Star was likely to be used in the course of litigation. I hold, and I accept the submission made by Mr Kennedy, that really the only purpose of Dr Mukherjee providing a report was for the purpose of litigation, or certainly it was a report that was to be prepared for the disclosure to the other side. As Tuckey J said in Palmer v Durnford Ford at 488H:

‘I think a similar approach could be adopted in the case of an expert. Thus the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court, judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purpose of disclosure to the other side would be immune.’

This is precisely, in my judgment, what the reports of Dr Mukherjee were for. It is unlikely, it seems to me, that the plaintiff was simply asking Dr Mukherjee to provide her with a report for her own information. Of course it was going to be passed on. Of course it was going to be passed on for the purpose of disclosure to the other side. Whether or not proceedings had started, the likelihood was going to be at the time that she was going to sue the other driver. I hold, accordingly, that the reports of Dr Mukherjee in any event would be immune.”

Both those rulings of the judge are challenged by Mr Chippindall on behalf of the plaintiff. I deal with the first ruling first. It appears to me that the first question which arises in the action is whether the deceased, when writing his letters of 12 and 15 November, owed the plaintiff a duty to take reasonable care to describe her condition accurately and make so far as possible a reliable prognosis. Subject to the issue of immunity to which I shall come, it seems to me that the answer to that question is (at any rate arguably) “Yes”, and it is accepted for the purposes of this application as being the correct answer.

The question then arises whether the deceased was in breach of that duty on the facts. That is a question that has not yet been, and cannot yet be, decided. But it would appear to me at least arguable that he was in breach of his duty. In any event it is not clear beyond argument that he was not in breach of his duty.

If the answer to the first two questions is in the affirmative, the question then arises whether the deceased’s breach of duty caused loss to the plaintiff. This is the real question on which battle has been joined. The plaintiff’s case is essentially encapsulated in the extracts from paragraphs 4 and 11 of her witness statement, which I have already read. The defendant’s effective answer is that the plaintiff was (and this is not in doubt) under acute financial pressure at the time of this settlement and was accordingly desperate to settle. The defendant submits that she insisted on doing so, despite advice that she should wait until her injuries had resolved, and that she would have insisted on settling in order to obtain immediate payment no matter what the doctor’s report had said. It would in other words, the defendant submits, have made no difference if he had given a much more guarded or a much more gloomy prognosis. The plaintiff takes issue with that and submits that she only settled because she trusted the prognosis in Dr Mukherjee’s letters and took them at face value.

As the extract from his judgment makes plain, the judge concluded that on the correspondence the only possible inference was that the plaintiff would have settled anyway. That may have been a correct conclusion, and may yet prove to be so. It does, however, seem to me that it is a conclusion which cannot be reached simply on the documents in the light of what the plaintiff evidently asserts in her witness statement. It is a matter which can only be resolved by hearing her evidence, hearing her cross-examined on the correspondence, and forming a judgment as to whether on this question of pure fact the defendant or the plaintiff is right. With all respect to the judge, who went to considerable lengths to give a helpful and clear judgment, I feel bound to disagree with the conclusion that he reached at this stage. I say that without any expression of view at all as to what the ultimate conclusion might properly be.

The second issue is that concerning the immunity of Dr Mukherjee as a witness or potential witness. There is, as is well known, a rule of public policy which protects from suit those engaged in court proceedings, whether they be judges, advocates in court or witnesses (including expert witnesses). It is plain that the immunity is not limited to what those persons actually do in court. The question which arises in this case is whether it extends to protect the deceased in circumstances such as the present, assuming for the purposes of argument that he is otherwise liable. In approaching this question we bear in mind that no proceedings were at any time issued. The doctor received a request from the client, not her solicitors, to provide a letter. He did not judge it necessary to examine the plaintiff. There was no indication that his report, if supplied, would form part of any pleading. He was not asked to prepare a proof or give evidence. It seems plain that he provided the letters which he did in order that the plaintiff (his patient, whom he had treated) might negotiate a fair settlement of her claim on the basis of an accurate statement of her medical condition since the accident and a sound prognosis of her future recovery. It is clear that he would have appreciated in all probability that if no settlement could be negotiated, proceedings might well follow.

It seems to me important to begin by bearing in mind that the rule of public policy with which the court is concerned is intended to protect the administration of justice. The ratio of the rule is, as I understand it, that judges, advocates and witnesses should be free to perform their roles in court without any fear that if they fall (or are thought to fall) into error they may be liable to civil actions. It is quite clear, as already indicated, that the rule is not simply limited to what happens in court. It was established in Watson v McEwan [1905] AC 480 that it applies to the preparation of proofs before evidence in court is given. It is plain from Evans v London Hospital Medical College (University of London ) [1981] 1 WLR 184, that in the context of criminal proceedings the immunity may extend to reports written which are likely to lead to the initiation of criminal proceedings. It is also clear from X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 755, that similar considerations may apply where, in performance of a public duty, a local authority is investigating whether or not there is evidence on which to bring proceedings for the protection of a child from abuse, such abuse frequently being a criminal offence. That is the reasoning of Lord Browne-Wilkinson in that case.

It is, however, apparent from the speech of Lord Browne-Wilkinson that he was anxious to express no view and cast no doubt on the decision of Mr Simon Tuckey QC (as he then was) in Palmer v Durnford Ford [1992] QB 483. That was a case in which proceedings were brought by a haulage contractor against the vendor and the repairer of a lorry in reliance on a report provided by an expert. Before the case reached trial the expert felt unable to support his expert view that the vendor was at fault, and in the course of the trial he was constrained to acknowledge that no complaint lay against the repairer either. The plaintiff in those circumstances sought to recover against the allegedly negligent expert. The issue was whether the proceedings should be struck out. In the course of his judgment Mr Tuckey said, in a passage upon which both parties to this appeal have relied, as follows:

“Mr Utley, counsel for the expert, submits that whenever an expert is retained with the possibility that he may have to give evidence in court, he is immune from suit for everything which he does. Thus, he accepts that the immunity would extend to a case where an expert negligently advised that there was no claim with the result that the plaintiff did not pursue it and suffered loss because, for example, by the time he realised he had a good claim it has become statute barred.

In considering whether the immunity is so far reaching, I approach the matter by noting first that experts are usually liable to their clients for advice given in breach of their contractual duty of care and secondly that the immunity is based upon public policy and should therefore only be conferred where it is absolutely necessary to do so. Thus, prima facie the immunity should only be given where to deny it would mean that expert witnesses would be inhibited from giving truthful and fair evidence in court. Generally I do not think that liability for failure to give careful advice to his client should inhibit an expert from giving truthful and fair evidence in court.

Accordingly I do not accept that the immunity can be as wide as that contended for. I can see no good reason why an expert should not be liable for the advice which he gives to his client as to the merits of the claim, particularly if proceedings have not been started, and a fortiori as to whether he is qualified to advise at all. Since both these allegations are made in this case I do not think that the decision to strike out the whole of the statement of claim can be justified. At least it is not plain and obvious that this should be done.

The problem is where to draw the line given that there is immunity for evidence given in court and it must extend to the preparation of such evidence to avoid the immunity being outflanked and rendered of little use. This problem was considered by the House of Lords in Saif Ali v Sydney Mitchell & Co [1980] AC 198 in the analogous but not identical situation of the advocate’s immunity from suit for what he does in court. In that case the House decided that the immunity extended to some pre-trial work but only where the particular work was so intimately connected with the conduct of the case in court that it could fairly be said to be a preliminary decision affecting the way that the case was to be conducted when it came to a hearing.

I think a similar approach could be adopted in the case of an expert. Thus, the immunity would only extend to what could fairly be said to be preliminary to his giving evidence in court judged perhaps by the principal purpose for which the work was done. So the production or approval of a report for the purposes of disclosure to the other side would be immune but work done for the principal purpose of advising the client would not. Each case would depend upon its own facts with the court concerned to protect the expert from liability for the evidence which he gave in court and the work principally and proximately leading thereto. I do not think that difficulty in drawing the line precisely should result in a plaintiff in a case such as this being denied all remedy against his expert.”

Part of the last paragraph of that passage was that cited by the judge giving judgment in this case. But it is to be noted that, when speaking of disclosure in the context of a professional negligence action against an engineer, Mr Tuckey plainly had in mind the existence of proceedings and the routine making of orders for disclosure.

In relying on the last paragraph of that passage the plaintiff pins her case in particular on the second sentence, submitting that the reports which Dr Mukherjee supplied in this case could not fairly be said to be preliminary to his giving evidence in court, judged perhaps by the principal purpose for which the work was done. It is submitted that it was for the purposes of negotiating a settlement that the reports were supplied, there being no proceedings in existence or contemplated. The defendant, on the other hand, relies on the next sentence, submitting that this was a report intended for disclosure to the other side and so it is said it is immune. The report, it is argued, is not one supplied for the principal purpose of advising the client. That sentence is however, as already observed, to be read in the context of the case then under consideration.

I would, for my part, agree with Mr Tuckey as to the extreme difficulty of drawing the line and also in his judgment that each case must depend on its own facts. In conclusion, however, I find myself in respectful disagreement with the conclusion at which the judge in this case arrived. It seems to me plain that by no stretch of imagination could the letters written by Dr Mukherjee be regarded as in any sense preliminary to his giving evidence as an expert. Furthermore, the documents were not supplied for disclosure to the other side in the context of proceedings but purely in the context of a negotiation. The overwhelming probability is that, had there been a trial on quantum, Dr Mukherjee would not have been the witness relied on by the plaintiff as her expert medical witness, and it seems most unlikely that Dr Mukherjee, if giving what was likely to become a proof of evidence, would not have wished to make a further detailed examination of the plaintiff. I accordingly conclude that the letters of Dr Mukherjee are not on the facts of this case covered by the immunity of a witness and accordingly would allow the appeal on that ground also.

It follows that in my judgment the matter should return to the County Court and proceed.

LORD JUSTICE MORRITT: I agree.

LORD JUSTICE BUXTON: I also agree.

ORDER: Appeal allowed with costs here and below; legal aid taxation. 

Source: www.bailii.org