High Court finds privilege not waived in expert report referred to in context of security for costs application

In a recent decision, the High Court found that the claimant’s reference to an expert’s preliminary report in the context of a security for costs application had not amounted to a collateral waiver of privilege, so the report itself did not have to be disclosed: Two Renewables Ltd v Reeves [2020] EWHC 789 (Ch).

It is well-established that, where a party relies on privileged material to support its claim, it may be required to disclose other privileged material relating to the same issue or transaction. This is due to the principle of collateral waiver, or the “cherry picking rule”, which is designed to avoid the unfairness which might result if parties were permitted to rely on privileged material out of context.

In the present case, the court found that the claimant had relied only on the effect of the report, rather than its content – a distinction which has been applied in other cases, but which is often a very fine line. The decision also suggests that a collateral waiver may be less likely to result where a privileged document is deployed only for a limited purpose which does not go to the merits of the claim (here, to rebut a suggestion that the claimant’s liquidators could not possibly believe the stated quantum of the claim).

In practice, however, any decision to refer to privileged material in support of a party’s position – whether an interlocutory stage or at trial – should be considered very carefully. It may be difficult to predict in any given circumstances whether a collateral waiver will result or how far it will extend. Continue reading

Previous expert’s draft report did not have to be disclosed where court had already granted permission to rely on a different expert

Where a claimant had already been granted permission to call an expert, and it later came to light that the claimant had previously instructed a different expert, the High Court refused to impose a condition requiring disclosure of the previous expert’s privileged draft report: Bowman v Thomson [2019] EWHC 269 (QB).

The court endorsed the approach taken in a line of previous authorities that expert shopping should generally be prevented by ordering the disclosure of a previous, rejected, expert’s report as a condition of permitting a change of expert. However, since an undisclosed expert’s report will be subject to litigation privilege, and the court cannot override that privilege, the court cautioned that such a condition should only be imposed if there is a principled way to do so – not merely by attaching a condition to a general case management order or varying an order previously made.

While such a condition was not imposed in this case, it highlights that parties who wish to rely on the evidence of one expert, having previously obtained a report from a different expert, will be at risk of having to disclose the earlier expert’s report (whether in draft or final form) as a pre-condition of obtaining permission. Given that risk, parties would be well advised to test a potential expert’s views robustly before a decision is taken to instruct the expert.

In this case there is no reference to a distinction between an advisory expert and an expert instructed for the purpose of proceedings. However, that distinction has been made in previous cases, which suggest that the courts will not normally require privilege to be waived where the report is from an advisory expert  only (see for example Edwards Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136, considered here). Continue reading

Permission for expert evidence of financial market practice refused in relation to allegations of dishonesty but granted for other purposes

In a recent decision, the High Court refused  the defendant financial advisers and agents permission to call expert evidence of financial market practices in relation to an allegation that they had acted dishonestly: Carr v Formation Group Plc [2018] EWHC 3116.

The court noted that the standard of honesty is an objective one, and it is the court, not the market, that determines what should be regarded as objectively dishonest. Accordingly, evidence of market practice was not admissible in relation to any argument as to the appropriate standard, nor as to whether the defendant has failed to comply with that standard.

The evidence was, however, admissible to defend an allegation of conspiracy to injure by unlawful means and also in relation to an argument based on deliberate concealment under the Limitation Act 1980.

Julia Bihary, an associate in our disputes team, considers the decision further below. Continue reading

Amended provisions for concurrent expert evidence or “hot-tubbing” now in force

Amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or “hot-tubbing”, have now come into force after receiving ministerial sign-off on Tuesday this week. The amendments implement a number of recommendations made by the Civil Justice Council report on Concurrent Expert Evidence & ‘Hot-Tubbing’ in English Litigation since the ‘Jackson Reforms’ which was published on 1 August 2016. Key changes are as follows:

  • The new PD 35.11 expressly recognises the possibility of expert evidence being given on an issue-by-issue basis, so that all parties’ experts give their evidence and are cross-examined in relation to a particular issue before moving on to the next issue. The CJC report identified this as a technique that was used in practice, but which had not (until now) been given formal recognition in the CPR.
  • The new provision makes it clear that more than one technique may be used for different parts of the expert evidence in a particular discipline, potentially using a hybrid of concurrent evidence, evidence on an issue-by issue basis, and traditional cross-examination.
  • Where evidence is to be given concurrently or on an issue-by-issue basis, the new PD makes it clear that (i) the court may set the agenda for taking the evidence, as an alternative to directing the parties to agree the agenda, and (ii) where the parties agree the agenda, it is subject to the court’s approval.
  • The new PD clarifies that, where evidence is given concurrently, the court may invite the parties’ representatives to ask questions of the experts once the judge’s questioning has been completed for any issue, rather than waiting until the conclusion of the judge’s questioning overall.
  • The new version states that the questioning by party representatives may be directed toward eliciting evidence on any aspect that has been omitted from consideration up to that point – as well as testing the correctness and/or seeking clarification of the expert’s view. It omits the wording which appeared previously, that such questioning should not cover ground which has been fully explored already and that in general a full cross-examination or re-examination is neither necessary nor appropriate.

The possibility of expert evidence being given concurrently is also to be flagged with a new question in the directions and listing questionnaires, as well as a new standard direction, but these changes do not yet appear to have been put through to the online versions of the forms.

For more information on the new provisions and how they relate to the CJC recommendations, see Maura McIntosh’s post published in July 2017 on Practical Law’s Dispute Resolution blog Testing the waters: CPRC approves new wording for hot-tubbing Practice Direction. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

High Court finds expert unreliable and lacking independence

A recent High Court decision has highlighted once again the importance of ensuring experts are aware of and comply with their duties to the court. It also demonstrates the potential dangers of repeatedly instructing the same expert and the need to ensure an expert is applying the correct legal standard when giving their opinion: The Governors and Company of the Bank of Ireland and another v Watts Group PLC [2017] EWHC 1667 (TCC).

The court concluded that the written and oral evidence of the claimant's expert quantity surveyor ("V") was unreliable and the evidence of the defendant's expert should therefore be preferred wherever there was disagreement between them. The reasons for this conclusion included:

  • V was not, he considered, a properly independent witness. The Bank was his principal client, providing the vast majority of his work and fees. V had spent most of the last few years acting for the Bank as an expert witness in actions against quantity surveyors arising out of the 2008/9 financial crash.
  • He had shown a lack of realism and his criticisms were based on an unrealistic expectation of what the defendant was required to do. He had also applied the wrong test, substituting the approach he would have taken, and the result he would have reached, rather than considering what a reasonably competent monitoring surveyor would have done in the circumstances.
  • He had attempted to mislead the court with a selective quote from RICS guidance.
  • He had adopted an unreasonable approach, failing to make concessions at the experts' meeting and when giving evidence.

Instructing the same expert on a number of similar matters can be time and cost effective. This case illustrates however that there may come a point where the independence of the expert is called into doubt because of the closeness of the relationship with the instructing party. It also demonstrates the importance of ensuring the experts comply with their duties at each stage of the litigation process, and that they understand and give an opinion on the correct questions.

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Previous expert report did not have to be disclosed where change of expert was not “expert shopping”

The High Court has found that the defendants in this case did not have to disclose their previous experts' reports as a condition of obtaining permission for an extension of time to enable them to serve a report from a new expert: Vilca v Xstrata Limited [2017] EWHC 1582 (QB).

Previous Court of Appeal authorities have established that the court can, and ordinarily will, require a party to waive privilege in a previous expert’s report as a condition of granting permission to adduce evidence from a different expert (see for example Edwards-Tubb v J D Wetherspoon [2011] EWCA Civ 136, considered here).

The present case suggests that the reason for the change of expert may be a key factor in determining whether the court should attach such a condition – in particular whether there is any indication that the change is due to "expert shopping" (described by the court as the potentially disreputable practice of ditching an expert because he would not, for reasons good or bad, support a party's case) or will result in the court not having the full information. Here, there was no indication of that; the expert had resigned due to ill-health, and the judge was satisfied that disclosure of her draft report would not add anything in circumstances where each party would have evidence from an expert in which it had confidence.

Some other first instance decisions have taken what is arguably a different approach, requiring disclosure despite there being no strong indication of expert shopping – in BMG (Mansfield) Ltd v Galliford Try Construction Ltd [2013] EWHC 3183 (TCC) (considered here) where the expert was almost 70 and did not want to continue acting, and in Allen Tod Architecture Ltd v Capita Property and Infrastructure Ltd [2016] EWHC 2171(TCC) (considered here) where the party had lost confidence in the expert because he was unable to express his views clearly.

As a practical matter, therefore, parties who wish to change experts, and who need the indulgence of the court to be able to do so, should assume that they may need to disclose any previous reports (or draft reports or other documents setting out the previous expert's views) as the "price" of that indulgence – though the court may decide otherwise in an appropriate case, as this case demonstrates.

Rachel Lidgate and Anthea Brookes, a partner and an associate in our dispute resolution team, consider the recent decision further below.

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New provisions for concurrent expert evidence or “hot-tubbing”

The Civil Procedure Rule Committee has approved amendments to Practice Direction 35.11, which governs the procedure for concurrent expert evidence, or "hot-tubbing", which was formally introduced into English civil procedure by the Jackson reforms. The amendments implement a number of recommendations made by the Civil Justice Council report on Concurrent Expert Evidence & ‘Hot-Tubbing’ in English Litigation since the ‘Jackson Reforms’ which was published on 1 August 2016.

The new PD reserves the term "concurrent expert evidence" solely for hot-tubbing, in contrast to the CJC report which had used it as an umbrella term to encompass a number of other methods of giving oral expert evidence, including evidence on an issue-by-issue basis (where all parties' experts give their evidence in relation to a particular issue, before moving on to the next issue). The PD does however expressly recognise these other methods; it provides that, to the extent evidence is not given concurrently, the court may direct it to be given in any appropriate manner, including on an issue-by-issue basis.

Maura McIntosh has published a post on Practical Law’s Dispute Resolution blog which outlines the new provisions. Click here to read the post (or here for the Practical Law Dispute Resolution blog homepage).

Court of Appeal confirms importance of frankly disclosing factors that could affect expert’s independence

The Court of Appeal has dismissed an appeal against a finding of clinical negligence based, in part, on the trial judge's approach to evaluating expert evidence where a close connection between the defendant and his expert witness had not been disclosed: EXP v Dr Charles Simon Barker [2017] EWCA Civ 63.

The Court of Appeal held that the trial judge had been fully entitled to take the view that the expert had so compromised his approach that the weight to be accorded to his views must be considerably diminished. It went so far as to say that, had the trial judge taken the decision to exclude the expert's evidence entirely, the Court of Appeal would have supported that decision.  

The decision reaffirms the importance of parties and their expert witnesses frankly disclosing any connection which might affect an expert's independence.

Rachel Lidgate, a senior associate in our disputes team in London, considers the decision further below.

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Expert evidence – the need to engage

A recent High Court decision illustrates the need for parties to cooperate in the process of producing expert evidence, to ensure the reports are properly matched and avoid the problem of "ships passing in the night": UPL Europe v Agchemaccess Chemicals [2016] EWHC 2889 (Ch).

In this case, the court ordered the parties to meet to try to agree the scope of and methodology for producing expert evidence and the preparation of a joint statement. In addition, in light of the defendants' previous failures to engage in correspondence regarding expert evidence, the defendants were ordered to pay the costs of the application.

For more information please see our Construction e-bulletin on the decision.

Party permitted to change experts on condition it disclosed previous expert’s notes setting out substance of views

The Technology and Construction Court has granted a claimant permission to adduce evidence from a new expert, after it became dissatisfied with its original expert's ability to express his views clearly. However, permission was granted subject to the condition that the claimant disclose certain documents in which the original expert had recorded his views (in addition to the expert's draft report, and the instructions to both experts, which the claimant had already disclosed): Allen Tod Architecture Ltd (in liquidation) v Capita Property and Infrastructure Ltd [2016] EWHC 2171 (TCC).

The decision is another reminder that, where a party wishes to change experts, the court is likely to grant permission (if at all) on condition that documents recording the original expert's opinion are disclosed – even if the case is not one of "expert shopping" in the sense of shopping around for a more favourable expert opinion. Such a condition may go beyond disclosure of the original expert's final, signed report, or even a developed draft, to include any document in which the expert's views are recorded.

Another recent decision of the same judge (Coyne v Morgan and Harrison, considered here) suggests that a party will not be required to disclose their solicitors' attendance notes of meetings with the first expert (as opposed to documents prepared by the expert himself/herself) unless it is a "strong case of expert shopping". In the present case, however, it seems there was no attempt to obtain disclosure of solicitors' attendance notes.

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