Ali Malsher, Partner
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Part 35 of the Civil Procedure Rules is the starting point for the role of experts in litigation.
The evidence of any expert is restricted to what is reasonably required to assist the court (Part 35.1) and all evidence used whether oral or in report form is subject to the consent of the court (Part 35.4).
The CPR envisages the need for joint experts wherever possible (part 35.7) to such an extent that the court can decide which expert from a list or determine the manner in which selection can take place. However, joint instruction implies but does not restrict the parties to one single letter of instruction (Part 35.8 (1)).
In Yorke v Katra [2003] EWCA civ 867 the parties in a building dispute agreed on a joint expert but could not agree on the terms of the letter of instruction. The District Judge ordered the defendant to sign a letter prepared by the claimant’s solicitors. The defendant solicitors signed the letter but struck out two sentences with which they disagreed. The District Judge was informed of the non compliance with the exact nature of the order and struck out the defence and counterclaim. The matter went before HHJ Hull QC who rejected the Defendant’s application without a hearing. The Defendant appealed. The Court of Appeal noted that the district Judge did not have jurisdiction to insist on a joint letter of instruction, that HHJ Hull had not appreciated that the District Judge was mistaken and the court could not insist that one party was bound by the instructions of their opponent even with a single expert. The letter amended by the Defendant was allowed.
It follows logically that instructions for joint experts are disclosed and preferably approved by both parties as was confirmed in MP v Mid Kent Healthcare Trust [2002] 1WLR 210. Where separate letters of instruction are sent from the parties the CPR confirms that a copy of the instructions must be sent to the other instructing parties at the same time as the expert (Part 35.8 (2).
Meetings with the jointly instructed experts are also subject to the same considerations.
In John Sutton Smith ( a child by his litigation friend the official solicitor) v Reginald David Stephens [2001] QBD Birmingham 26 1 2001 CILL 1802 the Claimant arranged a conference with leading counsel and a number of jointly instructed experts. The defendants applied to prevent the conference in their absence. Liability had been decided but there was some dispute as to quantum. The defendant argued that such a conference in the absence of the other party would be contrary to the overriding objective. The claimant solicitors argued that the CPR did not affect the adversarial system of justice and that the parties had the right to maintain their legal and professional privilege. In doing so they were entitled to meet the experts separately and to obtain information which they could choose to disclose or not.
The court held that single joint experts requested to attend such a meeting should seek the permission of the non attending party prior to any conference or consultation taking place. The defendant was correct in his interpretation that such a meeting in the absence of their express consent would be contrary to the overriding objective and also the code of guidance for expert witnesses.
The court reviewed CPR 35.9 which provides the court with power to order one party to prepare and file a document recording any information to which the other party did not reasonably have access. In the court’s view this went beyond legal professional privilege.
If one party had a number of issues which required clarification with a joint instructed expert they should submit written questions in accordance with CPR 35.6 (1)(b) details of which should be disclosed to the other party. The court had power under its inherent jurisdiction to prevent such a consultation to prevent one party obtaining an unfair advantage over another.
In an effort to obtain disclosure of documents which previously would perhaps have remained within the knowledge of one or other party, there has been dispute as to what constitutes joint selection and instruction.
In the case of Richard Thurber Carlson v Karen Townsend [2001] WCA civ 511 the issue was raised as to whether approval of an expert by the defendant could be construed as joint selection.
The claimant had brought an action for personal injury against the defendant having sustained a back injury. The claimant had proposed three orthopaedic experts prior to issue and the defendant had objected to one. The claimant instructed one of the others but chose not to rely on the report, disclosing one at a later stage from a different expert and speciality. The Defendant’s view was that this was tantamount to joint selection and requested sight of the orthopaedic report.
At first instance District Judge Dickinson ruled that there was no distinction between joint instruction and joint selection. The claimant was ordered to disclose the report. The claimant appealed successfully and the matter then came before the Court of Appeal following the defendant’s appeal.
The court considered two issues – whether the failure to disclose was a failure to comply with the protocol and if so what would be the sanction. The Court of Appeal confirmed that the protocol extended to multi track cases and did envisage voluntary disclosure of reports.
However the court went on to find that the protocol did not require specific disclosure in all cases and the effect of the protocol was not to override privilege. Further though the court had a number of sanctions open to it for non compliance, including costs and interest, it did not have the power to override privilege.
The question then becomes what exactly is privileged in instructions to an expert?
This was considered in Lucas v Barking, Havering & Redbridge Hospitals NHS Trust CA [2003] EWCA civ 1102.
This was an appeal against an order of Master Ungley for inspection pursuant to CPR 31.14(2) where it was noted that a witness statement and earlier report had been made available to the expert in his instructions but not disclosed.
The Court of Appeal considered whether all the documentation forwarded to an expert could be considered material instructions. The court agreed that the CPR 35.10(3) compelled experts to detail all their material instructions and this could compel them to disclose privileged material. The witness statements had been sent to the expert and significant sections of them had been reproduced in the instructions.
The court confirmed that the purpose of CPR 35.10(3) was to prevent disclosure of a statement unless there were reasonable grounds for believing that the instructions were inaccurate or incomplete. The material sent to the expert should be considered as part of instructions and were subject to CPR 35.10 (4) but there was no requirement under the CPR to disclose all the information in the instructions or to disclose all the material provided. Additional disclosure would therefore be related to whether there were reasonable grounds for believing that the instructions were incomplete and inaccurate. There was no reason in this case to believe so and the order for disclosure was refused.
The problem still remains however of the scenario where two separate experts can have viewed different material when coming to their conclusions. Regardless of this judgment, practitioners must take the greatest care when disclosing any privileged material to their experts.
In the case of separate experts instructed by the parties, practitioners also need to take care that they ensure directions are clear and do not restrict the parties to a specific named expert whose report could then become potentially disclosable.
In the case of Nicos Varnavas Hajigeorgiou v Vassos Michael Vasilou [2005] EWCA Civ 236 the issue arose as to whether the terms of an agreed case management conference order not only restricted the number of experts and who could instruct them but also whether the report of an expert not relied upon should be disclosed.
At a case management conference the parties had agreed directions which included "permission, if so advised, to instruct one expert each in the specialism of restaurant valuation and profitability". Sequential disclosure of expert evidence was ordered. The Defendant had identified an expert at the case management conference who was duly instructed, but decided not to rely on the report. The defendant then sought an access for a second expert which was rejected by the claimant who sought disclosure of the report.
The judge indicated that the defendant needed permission to use the second expert which he would give, but the initial report should be disclosed. The defendant argued that the order gave both parties the right to instruct an expert not necessarily the expert instructed. The Claimant argued that the defendant was only given permission to rely on the identified expert. Since the Defendant had instructed the expert he required an order for an alternative expert to be used.
The Court of appeal examined the case management conference order. It identified the area of expertise of the expert but did not name the expert. The terms of the order were such that permission was not required for a second expert and in any event the court had not been given power under the CPR for instruction of experts. The correct interpretation of the order was " permission, if so advised, to call and put in evidence a report from one expert".
The issue of the potentially disclosable report was further considered. The defendant argued that the report was subject to legal professional privilege. The court of appeal side stepped this argument to some extent. It confirmed that if permission from the court was required to rely on a different expert from the one who had provided an initial report then disclosure of the report would be appropriate. In this instance permission from the court was not required and therefore the Judge could not impose conditions of disclosure.
The court also indicated that if the court’s permission was required for an alternative expert, even if the report had not been a final report it should be still be disclosable. Any report which contained the substance of the expert’s opinion in those circumstances could be disclosable.
In reviewing this matter the court of appeal reviewed and clarified the case of Beck v Ministry of Defence [2003] EWCA 1043 . In this matter the court provided permission for each party to call one unnamed psychiatrist. The defendant instructed a psychiatrist but decided not to rely on his report. The claimant refused another appointment for a further psychiatric review. The defendant applied to court for an alternative expert. The issue as to whether court permission for this was actually required was not considered, but the court reviewed the disclosure of the medical report obtained by the defendant expert.
The defendant relied on legal professional privilege to prevent disclosure of the report.
The court having reviewed the matter considered that the report should be disclosed if the defendants were to obtain a second report from a different expert. Ward LJ indicated " expert shopping should be discouraged and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again…"
The court of appeal considered that this was not a restriction on legal professional privilege but it was a way by which the court could control the use of expert evidence and that if the court’s permission was required for an alternative expert the party making the request should be prepared to disclose the report obtained already, albeit unfavourable to their case.
The decisions in these cases clearly place the parties in position of conflict with the CPR. Part 35. 4(2)(b) states that the party "where practicable" shall identify " the expert in that field on whose evidence he wishes to rely". In doing so however there may be a restriction on expert evidence and in particular a practitioner may be forced into a position where permission of the court is required for an alternative expert to be used . In doing so practitioners should be aware that the cost of being specific about expert choice, may be the disclosure of a report (first or final) which could be unsupportive of their case.
In addition, practitioners need to review carefully the information from their experts which they disclose and the references to documents which may be privileged. In the case of Dunlop Slazenger International Ltd v Joe Bloggs Sorts Ltd (2003) (Lawtel extempore) : AC 9501015 this issue was raised before the court of appeal.
The matter involved the exercise of an option of which the pertinent point was whether the Defendant had sent a letter to the Claimant. The letter had been produced on a computer (1) which the defendant indicated had been interfered with. Both parties instructed computer experts. The defendant expert concurred with the view that the computer had been interfered with but the defendant’s position changed to indicating that the letter had been produced on a second computer, transferred by disc to the first computer and amended accidentally. The allegation was made that the amendment was concealed. The defendant applied for permission to adduce further relevant evidence and provided an affidavit with the application which endeavoured to explain what had happened. The defendant also wished to adduce a factual witness statement from the company chairman in support of their position.
The claimant having reviewed the application and affidavit sought disclosure of the documents provided for the defendant’s expert. The defendants again changed their position and decided that they wished to rely only on the witness statement arguing all other documents were privileged . Buckley J directed disclosure of the documents which passed between the defendant’s expert or Solicitors with the defendant , or which were considered material to the expert’s instruction. The defendant appealed.
The court of appeal noted that the affidavit referred to information which the defendant’s expert had provided to the Solicitors to assist with the application. There had clearly been an attempt to put into evidence information from the expert and although the affidavit was not relied on, the witness statement was important as to whether the document was honestly or otherwise produced.
The court of appeal held that the parties could not cherry pick at this stage. However, a party to whom privileged information had been supplied was entitled to the whole of the material. Any waiver of privilege was not just for the purpose of obtaining an order . The information was also included in the witness evidence which in this case related to the merits of the trial. Disclosure in those circumstances was appropriate and the order of Buckley J was correct, albeit a little too generous in its interpretation.
Practitioners need to consider carefully in all applications how information provided to them either from clients or experts is used to ensure that they do not fall into the trap of having to disclose all information provided to or from their experts because it has been deemed to be relevant to the merits of the case.
Interim Reports
What becomes the position however if it becomes apparent to a non instructing party that an expert has prepared a number of reports during the course of litigation which have not been disclosed? The issue was considered in Jackson v Davenport [2004] EWCA civ 1225
The defendant had appealed against an earlier successful appeal of the claimant who had been ordered to disclose an expert’s report. The report had been prepared for the purpose of a discussion at conference. Subsequently the expert prepared an additional report which was disclosed but gave the appearance from its contents and material listed that the expert had changed his view. The defendant argued that the first report should be disclosed under CPR 35.13 and that if the expert had changed his views after fresh evidence the initial view should be disclosable.
The Court of Appeal was unimpressed by this argument. The court noted that the CPR 35.10(4) specifically removed the substance of instructions to an expert from privilege. The expert had prepared the report for the conference and the report was subject to litigation privilege. The CPR did not provide courts with a means to order disclosure of privileged material. CPR 35.10(2) did not mean the disclosure of previous expert draft reports but the actual evidence which was viewed by the expert.
The court also confirmed the logical position that an expert would not be required to respond to any question relating to discussions or documents undisclosed through the case. This was the client’s privilege and was not therefore the experts to waive. Whether an expert would recognise this distinction particularly under pressure is uncertain and practitioners must consider this issue both at joint questions and trial.
A joint statement however signed by the experts and prepared in accordance with court directions , even if interim, did not attract privilege albeit that the discussions between experts which led to the statement were privileged – Ellis Ltd V Malwright Ltd [1999] QBD (TCC) 1 2 99.
The role of Three Rivers (no 6)
The House of Lords decision in the Three Rivers case provides a detailed, if ultimately incomplete, review of legal professional privilege. The court noted that there was on general legal professional privilege which was further subdivided into litigation privilege and legal advice privilege.
For most practitioners considering the impact on expert use – the use of litigation privilege as detailed in Lucas and Jackson remains the same. The reports and some documents will be accepted as privileged and the CPR does not provide the court with the power to override this. Practitioners should beware however if they are forced to request permission from the court for the use of alternative expert evidence and consider very carefully what documents are disclosed or reports obtained and for what purpose they are being used.
More importantly perhaps, Lord Scott returned to his previous thoughts expressed in Re L [1997] AC 16 indicating that the issue of whether litigation privilege continues at all should be reviewed in more detail. In his judgment the very nature and development of the CPR has led to a reduction of adversarial activity by litigators. Some, but not all, of this must be based on the use of jointly selected or instructed experts in a large proportion of cases. Whether practitioners would agree that more openness and co operation necessarily renders civil litigation non adversarial is a moot point. What is apparent however is that it can only be a matter of time before this issue is reviewed in a harsher light.
In terms of legal advice privilege Three Rivers extended the previously narrow definition of the Court of Appeal. Privilege would extend to advice relating to rights, obligations, liabilities or remedies of the client under private or public law.
Further and perhaps more of interest to the personal injury practitioner the decision affirmed the concept that presentational advice for individuals or companies where there was risk of criticism was also privileged. This includes presentational advice in the context of a statutory tribunal, inquest or an inquiry set up to deal specifically with one set of circumstances or event.
While this confirmation is welcome it is unlikely to be the end of the issue particularly as new developments in the CPR appear.
For further information email Ali Malsher or call 020 7940 4000.
