Protocol for the instruction of experts

A consolidated Code of Guidance for experts and solicitors instructing them has been long overdue. On 22 June 2005 the Civil Justice Council announced that the Master of the Rolls had launched the CJC Experts Protocol for the Instruction of Experts to Give Evidence in Civil Claims. This protocol will replace the existing Code of Guidance for expert witnesses and those instructing them.

Copies of the protocol, which come into force on 5 September 2005, are available from the Civil Justice Council website, There is a good two-page article on this in the New Law Journal of 29 July 2005 at page 1155.

Provisional damages - further claim made after death

An asbestos case was settled by consent in 1998 for £20,000 on a provisional damages basis with the right to apply back to the court in the event of the claimant contracting mesothelioma or asbestos induced lung cancer; the order said that the application should be made within the claimant’s life time.

We were notified of the claimant’s serious illness, saw the client the next day, established the following day that the treating doctor was unable to confirm a diagnosis of mesothelioma until post mortem. The claimant died four days later. The defendants were notified of the death the following week and two weeks after that the post mortem confirmed that death was due to asbestos induced mesothelioma.

The defendants contested an application to the court for further award on the basis that the application was not made during the claimant’s life time. The relevant law which the Judge had to consider was CPR 41, the Law Reform (Miscellaneous Provisions) Act 1934, the Damages Act 1996, and CPR 3.1(2)(a). The Judge decided that what the order did was effectively to give the claimant a right to further damages in the event of his developing one of the trigger diseases, a right enforceable at law and a right that existed up to the time of his death in which therefore, pursuant to the Law Reform (Miscellaneous Provisions) Act, on the death of the claimant survived for the benefit of his estate.

The Judge said “an award of provisional damages seems to me to be just that, an order that leaves open a cause of action until the happening of a specified event or a specified date. If the specified event was the death of the claimant then the cause of action exists until that point and therefore survives for benefit of his estate”.

It is likely that the defendants will be appealing to the Court of Appeal.

Grice -v- Montracon Tasker Limited. District Judge Kirkham. Sheffield County Court 23 August 2005.