Consequences of choosing the wrong expert
What should happen if there is a change in what constituted the 'relevant field of expertise' after the expert is instructed but before trial?
In Generics (UK) Ltd -v- Richter Gedeon Vegyeszeti Gyar, a case concerning the validity of a patent relating to the dosage regime of a ‘morning after pill’, standard form directions were given, providing for each party to call one expert witness. The names of the experts were to be supplied to the other party on or before 12 weeks before the trial date; then, on or before 8 weeks before the trial date, there was to be service of the reports on each party; and then, on or before 5 weeks before the trial date, there was to be service of any report from such expert witnesses in reply.
Unfortunately, the parties did not confer between themselves – which would have been desirable – as to the discipline of the expert evidence to be called. The claimant assumed that the relevant expert evidence would be in the field of clinicians experienced in administering the morning after pill. However, on the relevant date for nomination of expert names, the expert nominated by the defendant was an expert health statistician.
At that point, the claimant did not understand the nature of the evidence that it was proposed the defendant’s expert would be giving.
However, instead of seeking clarification of the position being adopted by the defendant, and the topic on which it was proposed he would give evidence, the claimant waited to see the expert’s report so that he could take a view as to what to do in the light of it. When the claimant party read the report it became clear that one of the key areas for the defence was to be a contention that what the claimant proposed to rely upon as prior art would, for medical statistical reasons, not properly have been so regarded.
Once the claimant party appreciated the nature of the defence argument, it promptly sought advice from a medical statistician. It subsequently served a reply report on the footing that it would seek permission from the court to rely upon that report in reply to the evidence on medical statistics. The defendant opposed the application on the ground that the claimant would gain an unfair procedural advantage if it was permitted to put in the reply. The defendant also contended that the court should adopt a particularly stringent approach to the enforcement of the directions actually made, following on from the Mitchell case in the Court of Appeal.
Mr Justice Sales directed himself primarily by reference to the overriding objective in Civil Procedure Rule 1.1: to enable the court to deal with cases justly and at proportionate cost. In dealing with a case justly, it is desirable to secure, so far as is practicable, that the parties are on an equal footing. He considered that it would be disproportionate and unduly harsh to impose, in effect, a sanction on the claimant for failing to clarify the nature of the defence expert evidence at an earlier stage. The medical statistics issues were the topic which, in substance, had been selected by the defendant as the primary ground of battle. Consequently, in his view, the just course was to permit the claimant party to adduce this evidence. The simple fact was that the parties proved to be at odds as to the nature of the expert evidence which should have been adduced under the order for directions. The judge could see no fault attaching to either party in that regard. But once the difference in view was identified, and the nature of the defence case became clear, it was right that the judge should make the order as sought so that the case could proceed on what he regarded as the appropriate and just basis.
- Generics (UK) Ltd (trading as Mylan) -v- Richter Gedeon Vegyeszeti Gyar  EWHC 1114 (Pat).
- Mitchell MP -v- News Group Newspapers  EWCA Civ 1537.