Before:

1.	LORD WOOLF, MR: I will ask Lord Justice Brooke to give the first judgment in this case.
2.	LORD JUSTICE BROOKE: This is an appeal by the defendant, Brian Lovell, against an order made by Judge Hamilton at the Luton County Court on 16 June 1999, which had the effect of providing that the defendant was not permitted to call his medical expert, Mr Martin Wetherill FRCS, at the trial of the action which was fixed for 31 August 1999 with a time estimate of one day.
3.	Mr Wetherill had been instructed on 22 August 1998 by the defendant's solicitors to examine Mr Baron, the claimant, in connection with these proceedings. He examined him on 6 January 1999 and wrote his short report on 27 February 1999. He sent it to the defendant's solicitors on 18 February and they received it on 24 February. They did not then disclose it to the claimant's solicitors who saw it for the first time on 16 June 1999, the day the judge made his order under appeal. His judgment was not recorded (as it should have been: see CPR Part 39 Practice Direction, paragraph 6.1), but an approved note of his judgment reads:
4.	"There is a large measure of agreement between Mr Marchon [the claimant's medical expert] and Mr Wetherill, both saying that the Claimant was likely to have symptoms for 5 years. Mr Wetherill's statement that the Claimant's employment would not be prejudiced was nonsense. If the Claimant had symptoms for 2-3 years and lost his job in that time he would be at a disadvantage on the open labour market if he still had sequelae.
5.	A delay would ensue if the evidence of Mr Wetherill was allowed in, there being a meeting of experts, the need for a joint statement and inevitably a delay before the two experts were available.
6.	In the spirit of Woolf this was a case in which there should not be further delay."
7.	The claimant was a groundsman. He was born in September 1954. On 13 September 1995 the tractor he was driving was hit from behind by the defendant's car. The tractor went off the road, out of control, and turned over. The defendant was subsequently convicted of driving without due care and attention. The only real issue between the parties related to the appropriate amount of compensation.
8.	The summons in these proceedings was issued on 3 August 1998. The particulars of claim referred, for particulars of injuries, to two reports of Mr A V Marchon FRCSI, FRCS which were annexed to the particulars of claim. These were dated 27 May 1996 and 12 September 1997. In a schedule of special damage served with that pleading there was a claim for net weekly overtime loss for seven weeks between 13 September and 5 November 1995, and a similar claim for six weeks from 8 July to 2 August 1996 and from 7 October to 21 October 1996. This claim was said to be continuing. There was also an averment that Mr Baron was handicapped on the labour market.
9.	A one-sentence defence was delivered on 26 August 1998. It reads:
10.	"For the purposes of this action only the Defendant admits liability to compensate the Plaintiff but puts the Plaintiff to strict proof of the quantum."
11.	Automatic directions applied in this action. Mr James has sought to argue on the authority of Gomes v Clark [1997] PIQR P219 that they did not apply. This was not, however, a case in which an interlocutory judgment was entered for damages to be assessed. I can see nothing in the provisions of CPR Order 17 rule 11 which would in those circumstances oust the operation of automatic directions. The trigger date for the purpose of automatic directions was 11 September 1998. The defendant was therefore obliged to disclose any expert medical evidence on which he sought to rely within 10 weeks (ie by 20 November 1998). If he failed to do so, he would not be permitted to call any such evidence at the trial except with the leave of the court or with the agreement of the claimant (Order 17 rule 11(3)(b)(i)).
12.	The defendant's solicitors did not mention the 10 week deadline to Mr Wetherill when they instructed him on 26 August 1998, the day they delivered their defence. The relevant part of their letter of instructions reads:
13.	"In this incident it is alleged that the Plaintiff sustained injuries to his chest, lumbar and cervical spines. We enclose copies of the reports of Mr Marchon dated 27th May 1997 (sic) and 12 September 1997. You will note that at the date of his initial examination Mr Marchon recorded that Mr Baron was slightly tender to palpate over the right side of his lumbar sacral area and sacroiliac joint and that there was also discomfort on extending the lumbar spine. It seems that Mr Baron was managing his job satisfactorily without impediment and Mr Marchon anticipated a full recovery within two years.
14.	At the date of his second examination it appears that Mr Baron has suffered a relapse and had been referred for treatment by his general practitioner. Following that examination Mr Marchon concluded that Mr Baron's discomfort would continue for a further five years and that if the symptoms did not resolve within this time frame it was likely that he would experience symptoms indefinitely."
15.	Mr Wetherill was invited to arrange an appointment to see Mr Baron for the purposes of preparing a report on the injuries sustained in the accident, the current symptoms and the prognosis for the future. On the same day the defendant's solicitors sought from Mr Baron's solicitors a signed authority for the release of his medical notes and records. These were forthcoming, together with photocopies of the thirteen pre-accident weekly pay-slips, on 5 October. In the meantime Mr Wetherill fixed an appointment to see Mr Baron on 6 January 1999, nearly seven weeks after his report should have been served pursuant to the automatic directions timetable.
16.	Mr Baron's solicitors clearly acquiesced in this delay, but as soon as they knew their client had seen Mr Wetherill, they started putting pressure on the defendant's solicitors by letters dated 8 and 21 January 1999, neither of which elicited the courtesy of a prompt reply. It is clear from those letters that Mr Baron's solicitors were anxious to press on to an early hearing date if the claim could not be resolved by agreement.
17.	On 16 February 1999 the defendant's solicitors responded for the first time. They said that they had been advised by Mr Wetherill that they should be in receipt of his report by the end of the following week (ie by 26 February), and thereafter they would arrange to disclose a copy of it if they intended to rely on it. The defendant's solicitors received Mr Wetherill's report on 24 February. On 5 March the claimant's solicitors expressed surprise that they had not yet received a copy and they said they assumed that the defendant's solicitors did not intend to rely on it. They received a letter by return which said:
18.	"We have received Mr Wetherill's report which is with our insurer clients for approval. We are sure you will appreciate that we are unable to serve the same upon you without their agreement. We will provide you with a copy of the report as soon as we are in a position to do so."
19.	The exchange of ordinary witness statements had been deferred by the parties, and in this letter the defendant's solicitors said they had no witness evidence to exchange. They were therefore content that Mr Baron's statement should be served on a unilateral basis. Mr Baron's solicitors waited until 31 March. They then served a copy of their client's witness statement on a unilateral basis, together with a revised schedule of special damages and supporting documentation. They said that their client would be relying on Mr Marchon's two reports, which had both been disclosed, and they were arranging for the case to be set down as soon as possible. Mr Baron's statement, signed on 6 March 1999, did not suggest that he was continuing to have any serious difficulties with his bank.
20.	On 19 May the Luton County Court Trial Centre appointed 16 June as the day fixed for pre-listing hearing. The notice from the court required advocates and their clients to attend the hearing, and stipulated that advocates attending the hearing must have authority to make decisions concerning the case. The defendant's solicitor works in an office at Chelmsford. She did not attend the hearing herself or instruct counsel to attend. Instead, she appointed a local solicitor/agent to attend. She was not, therefore, in any position to tell the judge directly why she had not disclosed Mr Wetherill's report. Mr Baron's solicitor, for his part, instructed counsel to attend the pre-trial review on his client's behalf, and Mr Baron also attended.
21.	The defendant's solicitor told this court in a witness statement that her insurance client gave her authority to disclose Mr Wetherill's report and that she is at a loss to explain why she did not disclose it in April, May or the first part of June. She says she intended to disclose it at the same time as she made a payment into court on 26 April, and she thought she had served it then. She certainly obtained from Mr Wetherill a list of "dates to avoid" which she prepared for the hearing on 16 June. She was sorry about her oversight.
22.	The effective part of the judge's order is in these terms:
23.	"1. The action be set down for trial (on the basis that the only medical evidence before the Court will be the reports of Mr Marchon), with a time estimate of 1 day, that is on Tuesday 31 August 1999 at 10.30 am.       2. Any updating statement for the Claimant is to be served by 30 June 1999."
24.	Mr Baron's supplemental statement was duly served. It was dated 23 June 1999. In it Mr Baron explained that in March 1999 his former employers had lost the contract under which he had been employed as a groundsman and his employment had been transferred to the company which had won the contract. He had not lost any loss of wages, but he still had to wear a corset most times when driving a tractor. He was only allowed 15 days sick pay each year. This meant that if he suffered recurring discomfort in his lower back which forced him to take sick leave beyond his permitted 15 days, he would have to take unofficial unpaid leave. He feared that otherwise he would lose his job. He also said that, although he was able to drive the tractor, if the company required him to do a different job, like hedge cutting, he was concerned that he would not be able to do it without suffering lower backache as a result of the lifting and stretching that this would involve. He added that he experienced severe backache at home if he tried to mow the lawn, cut the hedge or even drive the family car. His wife tended to drive the car. She also did the decorating which avoided him having to lift and stretch.
25.	I now turn from Mr Baron's description of his continuing problems to the reports of the consultant orthopaedic surgeons that were before the judge. In his first report, dated 27 May 1996, Mr Marchon recorded that Mr Baron was assessed by his GP on the day after his accident. He was treated for soft tissue injuries to his neck, soft tissue injuries to his sacral back area, and bruising to the left side of his lower ribs. He was followed up by his GP on regular assessments until November 1995. Mr Marchon saw him for the purposes of his report on 23 May 1996. He expressed the opinion that the soft tissue injury to the neck was as a result of a rear collision. An acceleration type of kinetic energy had resulted in his neck being hyperextended and hyperflexed. Mr Marchon said that the symptoms of such an injury often get worse within 24 to 48 hours and the acute symptoms can persist for a period of four to six weeks. In those circumstances he felt that Mr Baron's complaint of quite severe pain in his neck for two to three weeks was genuine. His neck problems have now long since subsided and no issue arises on this aspect of his injuries. Nor is there any continuing difficulty over the soft tissue bruising and contusion over the left side of Mr Baron's chest wall and ribs, from which he had made a full recovery by the time he saw Mr Marchon in May 1996.
26.	So far as his back troubles are concerned, Mr Marchon described in his first report how the sprain to Mr Baron's back could have resulted from the rear impact and from twisting his back when the tractor flipped over. He had had quite severe symptoms for a period of six to eight weeks, following which he progressively improved, but he was still plagued in May 1996 with intermittent backache, although this had improved. Mr Marchon could not find any major physical signs in his lumbar spine and no evidence of a prolapsed intervertebral disc. He recommended that Mr Baron should have a course of physiotherapy and expressed the opinion that this backache would settle over a period of two years.
27.	Mr Marchon saw Mr Baron again sixteen months later, on 12 September 1997, for the purposes of his second report. It was now two years after the accident. The only continuing problem related to his back pain.
28.	He had remained under the care of his GP. In July 1996 he reported severe back pain and was given a course of physiotherapy. His back pain improved as a result, but when he returned to work he had a recurrence of the pain and underwent a further course of physiotherapy. Because his symptoms were recurring, he was referred to a consultant orthopaedic surgeon in October 1996 for assessment.
29.	He eventually saw the consultant in April 1997 who prescribed treatment for ligamentous strain with a corset and physiotherapy. When Mr Baron saw Mr Marchon in September 1997 he told him that his symptoms had improved slightly over the last month or so, although he had to wear the corset and still had to take analgesia to alleviate his symptoms.
30.	Mr Marchon said he would have envisaged that Mr Baron would have made a substantial improvement over the two years since the accident, but this had not been the case. He considered that the type of work Mr Baron was doing as a groundsman was aggravating his symptoms.
31.	Mr Marchon expressed the view that Mr Baron would continue to have pain and discomfort in his back for a period of at least five years, with episodes of exacerbation. He said that if his symptoms did not settle within a period of five years, he was afraid that Mr Baron would continue to be plagued with backache for the rest of his life.
32.	Mr Baron saw Mr Wetherill, the defendant's consultant, sixteen months later, on 6 January 1999, nearly three years and four months after the accident. He had been discharged from follow-up at the hospital in October 1997, a month after he saw Mr Marchon. At that time it was noted that he was functioning quite satisfactorily as far as his back was concerned, and was wearing a corset as necessary. He had no further follow up or treatment. He told Mr Wetherill his back had improved considerably, but that he continued with occasional discomfort.
33.	Mr Wetherill said that his back had improved significantly but that he continued with some residual symptoms. Mr Wetherill adopted exactly the same approach as Mr Marchon. He said that in the absence of any major anatomical problem it would be expected that this type of injury would settle within two to three years. He accepted that Mr Baron continued with some discomfort in his back, but he was hopeful that this would continue to settle, perhaps taking a maximum of two years more. Mr Baron had returned to his work and, although he had some discomfort doing activities required of him, he was able to do his job. Mr Wetherill therefore would not expect his future employability to be prejudiced as a result of this accident.
34.	In the circumstances Mr Wetherill said that overall Mr Baron appeared to have made a good recovery from his injuries. The expectation was that he would have no long term sequelae. He thought Mr Baron's residual back symptoms had a very reasonable chance of settling within the next two years or so.
35.	Anyone who has any experience of the history of back problems of this type, whether as orthopaedic surgeon, personal injuries lawyer or judge, would be very familiar with the story told by these two consultants. If there are no obvious physical injuries or disc damage, the hope is that back problems like these will clear up reasonably quickly. In some cases symptoms continue for about two years. In a minority of cases they continue to cause trouble for about five years. If one is extremely unlucky, they go on causing significant pain and other difficulties on a lifelong basis.
36.	In Mr Marchon's first report, he expressed the hope that the backache would settle over a period of two years. Unfortunately events did not take this course. In his second report he expressed the hope that the pain and discomfort, with periods of exacerbation, would not last more than five years. He then expressed the warning that if the symptoms did not settle within five years, Mr Baron would continue to be plagued with backache for the rest of his life.
37.	Happily, by the time the case reached Judge Hamilton for the pre-trial review, it was clear that Mr Marchon's hopes in his second report were being realised. Mr Wetherill expressed the hope that the discomfort would continue to settle, and placed a date of February 2001, just over five years after the accident, for the end of this process. Mr Baron did not mention any continuing serious problems in his March 1999 witness statement. He was present at the pre-trial review, and the short supplementary statement the judge allowed him to lodge gave no indication that he was in the worst category of cases. The judge then had to decide how best to exercise his case management powers so as to comply with the overriding objective in CPR Part 1.
38.	The judge would have appreciated that this was a fairly small claim, comparatively speaking. He had to deal with it in a way which was proportionate to the amount of money involved. The issues were not complex and the case was not important, except to Mr Baron. He had to ensure that it was dealt with expeditiously and fairly. He would have been anxious to allot to it no more than one day as being an appropriate share of the court's resources for such a case.
39.	The judge was handicapped at the pre-trial review because in these early CPR days the defendant's solicitor had overlooked CPR 29.3(2) which reads:
40.	"If a party has a legal representative, a representative-      (a) familiar with the case; and         (b) with sufficient authority to deal with any issues that are likely to arise;
	must attend .... pre-trial reviews."
41.	She also appears to have overlooked the court's power under CPR 3.1(2)(c) to require a party or a party's legal representative to attend the court. The notice fixing the pre-listing hearing told her:
42.	"Advocates and clients must attend the hearing. Advocates attending the hearing must have authority to make decisions concerning this case."
43.	If ever there was a case which ought to have settled at the pre-trial review, if the experts' reports and updated witness statements had been served in good time before the review, it was this one. If it had, there would have been a saving of six sets of professional fees (orthopaedic surgeon, advocate and solicitor on both sides) for a full day's hearing at the trial, as compared with what used to happen under the pre-CPR regime. Mr Baron would have been relieved of the continuing anxiety of these proceedings. This is the reason why a court may make it obligatory, as it did in this case, for the client to attend such a hearing, accompanied by an advocate who has authority to make decisions concerning the case.
44.	If a defendant's lawyers choose not to send a representative with appropriate authority to attend a pre-trial review and choose not to ensure that the client (who in this case should be equated with the defendant's insurer) attends the review, the judge, who is likely to be the trial judge, is likely to note their absence. If he considers that that party has acted unreasonably in this way in connection with the litigation in breach of a direction of the court, there may come a time when he decides that it is appropriate to make an order for indemnity costs against that party, or to exercise his power to award interest on damages at a much higher rate than what is usual, if those powers are available to him. The whole thrust of the CPR regime is to require the parties to behave reasonably towards each other in the conduct of the litigation. The old antagonistic point scoring, which used to drag personal injuries cases out and run up the costs, should now be at an end. This Paragraph is referred to in: Reid Minty v Taylor [21].
45.	The defendant's notice of appeal, and an accompanying witness statement signed by the defendant's solicitor, reveal a number of misunderstandings and misconceptions about the rules of procedure which are still fairly widespread.
46.	(1)   She complains that the defendant had never said that he did not intend to rely on Mr Wetherill's report. She also complains that there had been no earlier order made in respect of expert evidence, much less an "unless" order. In making these complaints she overlooked the fact that by an automatic direction she was obliged to serve the report within 10 weeks of the trigger date and, in the absence of agreement or a court order, she was thereafter at the mercy of the court which could refuse leave to adduce expert evidence if it considered it unjust to admit it at a late stage.
47.	(2)   She complains that there would be no delay in the trial taking place should the defendant be given permission to rely on Mr Wetherill's evidence, that Mr Marchon would have had ample opportunity to deal with it and, even with a trial date on 31 August, there would still have been time for the experts to meet and produce an agreed statement if that was desired by the court.
48.	In my judgment, this complaint reveals a fundamental misconception which has plagued the conduct of this class of litigation for far too long. Pre-trial disclosure obliges the parties to disclose to each other the substance of the evidence on which they intend to rely at the trial. If a claimant's symptoms are continuing, this must be made clear in the witness statements served on his side. It is not legitimate to serve out of date statements and then hope to be allowed to update them in a radical way just before the trial. The reason for this is that each party is afforded by the rules the opportunity to make a well informed valuation of the claim, and to make a well informed Part 36 offer, or payment into court in the case of a defendant, well before the trial takes place. This regime simply will not work effectively if the former laxities in serving late statements (or updated statements with no warning that a significant change is likely) are allowed to persist.
49.	The claimant's solicitors had made it clear that they were content to rely on Mr Marchon's 1996 and 1997 reports for their expert evidence and to go to trial on them. Consultant orthopaedic surgeons are busy people and it is quite wrong for trials to be delayed, and for the possibility of making an effective Part 36 offer to be rendered nugatory, because of the late service of an expert's statement, followed by the even later "updated" meeting between experts that the defendant's solicitor thought would be appropriate.
50.	(3)   She says that if Mr Marchon is to provide an opinion on the central issue of prognosis, it seems inevitable that he is going to have to see the claimant again and provide a further report. The answer to this comment, in my judgment, is that he will not be permitted to do so. The claimant's solicitor has elected to rely on Mr Marchon's two earlier reports and on his client's description of what has happened since September 1997, which shows that this not a "worst case scenario" case.
51.	(4)   She says that Mr Marchon's prediction in his first report "does not seem to have been accurate". All Mr Marchon was in fact doing in that report was to state the probable outcome based on experience and on well-known data for back injuries. Unfortunately, Mr Baron's case fell into the "five year" and not the "two year" category.
52.	(5)   She quotes Mr Marchon's second report and says that the issue whether Mr Baron will be awarded anything for handicap ont he labour market, may well turn to a large extent on whether the trial judge accepts what she calls a "prognosis" by Mr Marchon in his second report. All Mr Marchon was there saying was that there was a probability that this was a five year case and a possibility that it was a case of lifelong problems. This was, again, all that he could usefully say at that time. By June 1999 the claimant's solicitors had made it clear that they would not be relying on any later evidence from Mr Marchon, so that they were content for the judge to make his assessment of the probabilities, and Mr Baron's later statement made it clear that his condition was stable.
53.	(6)   She says that Mr Wetherill agreed with the more optimistic scenario postulated by Mr Marchon two years earlier. That is true. She then goes on to express a worry that Mr Marchon may be permitted to introduce what he calls an updated report which may be more gloomy. The answer to this is that he will not be permitted to do so as the judge's order now stands. The judge has made a direction that Mr Marchon's evidence will be given in his two written reports. He has not made a direction under CPR 35.5 that his evidence may be given orally. He clearly formed a view under CPR 35.1 that Mr Marchon's two written reports were all that were reasonably required to resolve the proceedings. Everyone therefore knows where they stand, and there will be a great saving of time, expense and uncertainty as a result. The judge also took the view, and in my judgment he was entitled to do so, that there was so little difference of opinion between the experts that it was unnecessary to direct a discussion between experts pursuant to CPR 35.12.
54.	(7)   She refers to the timetable the previous autumn and says, "there was no way the defendant could keep to this timetable". I have already noted that she did not acquaint Mr Wetherill with the timetable for automatic directions. She simply ignored it. She ignored it at her peril as events turned out.
55.	(8)   She reveals that she intended to disclose Mr Wetherill's report for the first time on 26 April 1999, more than two months after she received it. She complains that the claimant's solicitors had not pursued the question of Mr Wetherill's report after 3 March or sought a debarring order. In my judgment they were not obliged to do so. She overlooked the fact that she now required the permission of the court if her client was to be allowed to rely on it, so that it was in his interests that such permission should be sought promptly. It was therefore not in her client's interests to delay disclosing it one day longer than was necessary. It was also not, in the judge's language, in the spirit of Woolf to delay disclosing it deliberately, as she intended, until the day a Part 36 payment was made. Under CPR 36.11 the claimant only has an absolute right to accept a Part 36 payment in the 21 days after payment is made. The defendant's solicitor therefore intended to create a situation in which the claimant's advisers had to consider whether to accept the payment during those 21 days without giving them any prior opportunity, in consultation with their client and Mr Marchon, to consider Mr Wetherill's report before the payment was made. They might have wished to make a Part 36 offer as soon as they had absorbed its effort.
56.	I have set out the full note of the judge's judgment. The court can only interfere with his order if he was plainly wrong or if he misdirected himself as a matter of law. In his careful submissions to the court, Mr James has suggested that the judge might have decided in the exercise of his discretion to admit Mr Wetherill's report to be admitted in writing at the trial. When we asked him whether this suggestion was made to the judge at the pre-trial judge, he was unable to give any clear answer.
57.	In my judgment the judge was plainly right in the course he took. He took into account the narrow difference of opinion, if any, between the experts. In so far as Mr Wetherill expressed a view on Mr Baron's employability, the judge considered he had all the evidence he needed to decide that issue justly. He was understandably concerned about the danger of further delay in this case if he permitted Mr Wetherill's to give evidence. He considered that there should not be any further delay, and that the trial could be conducted justly on the basis of Mr Baron's oral evidence and Mr Marchon's two written reports. This was an order he was, in my judgment, quite entitled to make in the circumstances.
58.	I would dismiss this appeal.
59.	LORD JUSTICE ROBERT WALKER: I agree.
60.	LORD WOOLF, MR: I also agree.
61.	Order: Appeal dismissed with costs assessed at £1,500.