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My Solicitor Is Advising That I Accept A Modest Offer

Dear Brian

I am involved in a Court case.  I had an initial very supportive report from a Doctor.  The Defendants made a modest offer which my Solicitor recommended we should reject.  The experts from both sides then had to discuss.  My expert completely changed his opinion.  My Solicitor says that I must now accept what was offered, although there will be considerable costs to pay because I did not accept the offer at the time  .  Is there anything that I can do about this?



Dear Marion

This is one of those sickening developments that happen sometimes.  The expert, trying to be helpful, does a report which is probably too favourable.  Time goes by, he sees other opinions and he changes his, but by that time it may be too late to do anything about it.  My initial reaction was that you would just have to take this on the chin.  The expert may be able to justify his change of mind; experts are meant to be prepared to keep an open mind throughout.  Equally, it may be that the expert was simply weak in the face of a more forceful opponent.  Negotiating a reduction in your expert’s fees is unlikely to achieve very much.  Your Solicitor could apply to the Court for a new expert, but again there is no guarantee that that would be granted.

Let me tell you about a very recent case in the Supreme Court (formerly House of Lords) called Jones–v-Kaney. Here the Supreme Court decided that in certain circumstances it would be possible to sue an expert who unjustifiably changed his or her mind.

In Jones-v-Kaney a Psychologist prepared an initial report that the Claimant was suffering from depression and Post Traumatic Stress Disorder.  In a further report, she concluded that the Claimant was still suffering from depression and some symptoms of PTSD.  In a joint statement with the Defendant’s Psychiatrist, agreement was recorded that the Claimant had no more than an adjustment reaction and did not suffer from a depressive disorder or PTSD.  They went on to agree that the Claimant’s behaviour was suggestive of “conscious mechanisms” which raised doubts as to the genuineness of his account.

When queried, the Psychologist said that she had not seen the Psychiatrist’s report at the time of the joint discussion, that the joint statement as drafted did not reflect what she had agreed with the Psychiatrist over the telephone but she had felt under pressure to agree it, that she considered the Claimant was evasive rather than deceptive, that he did suffer from PTSD which had now resolved, and that she was happy for the joint statement to be amended to reflect this.

The Claimant and his Solicitors had by this time lost all confidence in the Psychologist and applied to the Court to appoint a new expert.  This request was refused and the Claimant then brought a claim against the Psychologist.  The Supreme Court decided that that claim could proceed – there was no longer any immunity for an expert as a matter of right.

You are in a very difficult position and I hope that this is of some assistance to you.

Brian Barr

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