Disclosure of privileged report as condition of changing experts

In Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136, the Court of Appeal held that the court could not override privilege in an earlier expert’s report, but could and would normally require waiver of the privilege as a condition of granting permission to adduce evidence from a different expert.

Key points:

  • It makes no difference whether the change of expert occurred before or after proceedings were issued. In either case, a party will normally be required to disclose the earlier report in order to maximise the information available to the court and to discourage “expert shopping”.
  • However, the court’s power to require waiver of privilege only applies if it is making an order to which that condition can be attached, including the initial order granting permission for expert evidence. If a party can serve the new expert’s report within the confines of an existing permission, it seems the court cannot require disclosure of the earlier report.
  • Where an expert has been instructed to advise a party privately at the party’s own expense, rather than to prepare a report for the purposes of the proceedings, the court will not normally require privilege to be waived in the report.

Practical implications:

  • Where a party wishes to maintain flexibility to instruct a different expert if necessary, it is preferable to seek permission to serve expert evidence based on a particular discipline rather than a named expert. It may also be advisable to avoid naming a chosen expert for as long as possible, if this can be done consistently with any applicable pre-action protocol.
  • The judgment highlights the importance of testing a potential expert’s views robustly before a decision is taken to instruct him or her for the purposes of the proceedings. There may also be merit in instructing a potential expert as an advisory expert only until it is clear that he or she will be able to support the case.
  • Where a party suspects that its opponent is shopping around for a favourable expert, it may wish to consider asking whether the opponent has obtained any reports from other experts, or indeed seek to persuade the court to grant permission for expert evidence only on condition that any prior reports be disclosed.

Background

This was a personal injury case. In accordance with the applicable pre-action protocol for personal injury claims, the claimant gave the defendant notice of three possible orthopaedic surgeons he might instruct and invited any objection within 21 days. The defendant made no objection and the claimant initially obtained a report from one of the named experts.

However, when proceedings were issued, the claimant’s particulars of claim relied on an expert’s report from a different expert to the three who had been nominated. (It is a requirement in personal injury claims that the particulars of claim attach any medical report relied on.)

The defendant applied for disclosure of the earlier report. It accepted that there was no absolute right to disclosure, as the report was and remained privileged, but argued that waiver of privilege should be the “price” of the court granting permission to rely on the new expert’s report.

The claimant resisted the application. It accepted that, as established in previous case law, the court has power to require a party to waive privilege as a condition of granting permission where the party was seeking to substitute one court-permitted expert for another. However, it argued that the court’s power was limited to this narrow situation, and did not apply where the first expert had been appointed before proceedings were issued.

The decision

The Court of Appeal agreed with the defendant. It said there is no difference in principle between a change of expert pre-issue and a change of expert post-issue. In either case, the earlier report is equally privileged and in either case “the damaging features of expert shopping are exactly the same”.

The court did however distinguish between experts who are instructed to prepare a report for the purpose of proceedings, and those who are instructed to advise a party privately, pointing out that it is only where an expert has been instructed for the purpose of proceedings that the expert’s duty to the court arises.

Whether the change of expert has taken place pre- or post-issue, the court should normally order that the earlier report be disclosed as a condition of granting permission. That was the view reached in Hajigeorgiou v Vasiliou [2005] EWCA Civ 236, and the court in the present case considered that it was justified in order to maximise the information available to the court and to discourage expert shopping.

The court said this would be the position where the change of expert comes “after the parties have embarked upon the protocol and thus engaged with each other in the process of the claim”. Where a party had elected to take advice pre-protocol, at his own expense, the same justification would not normally exist for requiring waiver of privilege.

Comment

This decision is not a radical departure from existing case law. The court referred to previous Court of Appeal decisions to the effect that the court could require disclosure of an earlier expert’s report as a condition of granting permission (e.g. Beck v Ministry of Defence [2003] EWCA Civ 1043, and Hajigeorgiou referred to above). There was also first instance authority that this power could be exercised where the first expert’s report had been obtained before proceedings were issued (Carruthers v MP Fireworks Ltd, Bristol county court, January 2007).

It is nonetheless of interest in confirming that the court will take a strict line against “expert shopping” and, to guard against it, will normally require disclosure of a previous expert’s report as the price of permission for the new expert.

It is implicit from the judgment that, as shown by previous authorities, disclosure of the previous report can only be required if the party intending to change experts requires a positive order from the court to which that condition can attach. So, for example, if an order has already been made for exchange of reports from one expert each in a given field, without naming particular experts, it seems that a party who wishes to reject its expert’s report in favour of another cannot be compelled to disclose the previous report, so long as it can comply with the terms of the existing order. If however the court is being asked to permit expert evidence for the first time under CPR 35.4, or an order already made names the first expert, the court can require disclosure as a condition of its order. Similarly, if the court’s assistance is needed in some other way (eg. because the expert needs to examine the claimant or some item in his possession) or perhaps even because an extension of time is needed to serve the further report, then the court can require disclosure as a condition of its further order.

It is also interesting that the court in this case envisaged the possibility that, if the normal order is that a prior expert’s report must be disclosed as a condition of granting permission, one party may ask the other whether or not there has been a prior report and/or may seek orders with the condition attached regardless of whether there is some positive indication that there has been a change of experts. This may be something for parties to consider, particularly where there is a suspicion that the opponent is shopping around for a favourable expert.

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