Court orders disclosure of documents containing expert's opinion (TCC)

Parties need the permission of the court to rely on expert evidence (CPR 35.4).

In Beck v Ministry of Defence [2003] EWCA Civ 1043, the parties had each obtained permission to adduce expert psychiatric evidence. The defendant obtained an expert psychiatrist's report but then lost all confidence in the expert and sought permission to change experts. The Court of Appeal held that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed.

In Vasiliou v Hajigeourgiou [2005] EWCA Civ 236, the Court of Appeal approved Beck (albeit in an obiter statement). Dyson LJ stated that the principle established in Beck was important and was an example of the way in which the court will control the conduct of litigation in general and the giving of expert evidence in particular. The court will use its powers to prevent expert shopping. Significantly, Dyson LJ commented that the conditions that the court can impose on a party applying for permission to call an expert are not limited to an expert's final report, but may extend to other reports containing the substance of the expert opinion.

Edwards-Tubb v JD Wetherspoon [2011] EWCA Civ 136 is authority for the proposition that the court can, and normally 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. The case involved a Personal Injuries Pre-action Protocol claim. The claimant initially instructed one of the experts whom the defendant had approved. He produced a report. When the claimant commenced proceedings, however, a different expert's report was attached to the particulars of claim, and that report referred to the fact that the claimant had previously seen another expert orthopaedic surgeon. The defendant successfully sought disclosure of the earlier expert's report as a condition of the claimant being granted permission to adduce expert evidence. For more information, see Legal update, When court can order privileged expert report to be disclosed.

The decision of the High Court in BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another [2013] EWHC 3183 (TCC) took Edwards-Tubb one step further by establishing that disclosure can extend beyond the draft report to other documents in which the expert expresses his opinion (including solicitor's attendance notes) where there is a very strong appearance of expert shopping. In that case, the High Court granted the claimants permission to call evidence from a fresh expert on condition that they disclose any reports and documents received from the retiring expert in which he had expressed opinions on the relevant matters. The court did not go so far as to order disclosure of solicitors’ attendance notes recording the expert’s opinions, saying there would have to be at least a very strong appearance of “expert shopping” before such an order should be made. In reaching its decision, the court drew the statement of Dyson LJ in Vasiliou. For further information, see Legal update, Permission to change expert witness (TCC).

For more information on privilege and experts, see Practice note, Experts and Privilege.

The dispute concerned a professional negligence claim against a structural engineer (the defendant) in relation to the redevelopment of a property.

The claimant had issued proceedings against the defendant on 13 December 2013 and had instructed an expert, A, on 16 September 2014. Pursuant to those instructions, A prepared some notes including his responses to questions raised by counsel and sent them to the claimant's solicitors.

On 6 July 2015, A provided the claimant's solicitors with a summary of his views. In correspondence with the solicitors, A described the relevant document as his preliminary report.

On 3 September 2015, the court gave the parties permission to adduce expert evidence by reference to discipline, rather than by reference to named experts. It also ordered that a party seeking to call expert evidence orally at trial had to apply for permission to do so before pre-trial checklists were filed.

In January 2016, the claimant's solicitors sent a supplementary letter of instruction to A and on 12 February 2016, A produced a draft report.

On 12 April 2016, a mediation between the parties took place. Prior to the mediation, A provided the claimant with his views on matters raised by counsel.

After the mediation, the claimant changed expert to B. It explained that the reasons for the change were that the position with A had reached the end of the line. Although A was supportive of the claim, he was unable to properly manage the documents in the case and to express his views with the clarity that would assist the court. A had also proved unresponsive when contacted to review matters.

Under the relevant case management order, the claimant did not need the permission of the court to change experts, but did require permission to call an expert to give oral evidence at trial. Accordingly, as an incident of granting permission to call B to give evidence orally at trial, the court had the power to impose conditions upon such permission.

The defendant applied for, among other things, an order that permission for the claimant to rely on the evidence of B was to be conditional upon the claimant disclosing the claimant's letters of instruction to A and B and any report, document or correspondence in which A had stated the substance of his opinion on the relevant matters. The latter category of documents broadly included:

The claimant disclosed the letters of instruction to A and B and A's draft report produced on 12 February 2016, but declined to disclose any further material on the basis that it was privileged. It also argued that it had disclosed sufficient material to provide a proper basis for the court to allow the claimant to call B to give evidence at trial and that this was not a case of expert shopping.

HHJ David Grant ordered that the claimant was permitted to call B as a new expert witness at trial on condition that it disclosed the documents sought by the defendants.

The judge distilled the following principles from the relevant authorities (see Background):

With the above principles in mind, the judge addressed the claimant's arguments against disclosure of the relevant documents. He concluded that the fact that the documents sought by the defendants were or may be "cloaked with the cover of privilege" was not a reason to refuse their disclosure as part of the price which the claimant had to pay in order to call B as its expert witness at trial. The price was the waiver of privilege in relation to the relevant documents (Edwards-Tubb and Vasiliou).

The judge also held that he had the power to order disclosure, not only of A's final report (final in the sense of it being signed or CPR 35 compliant), but also of any earlier draft or provisional report, or any document in which A had expressed his opinion of the issues in the case (Vasiliou). However, this power was to be exercised reasonably on a case-by case basis, having regard to all the circumstances of the particular case. Here, the evidence indicated that A's notes and preliminary report were documents in which he expressed an opinion on the issues in the case.

Finally, the judge found that this was either not a case of expert shopping or, if it was, it was only to a faint degree. However, relying on BMG, even in a case of faint degree of expert shopping, the court may still direct disclosure of material produced by the first expert in which he has expressed his opinion on the issues of the case, as a condition of permitting reliance on anew expert. In his view there was an inherent problem with the use of the expression "expert shopping". The expression inevitably carried the pejorative connotation of its use at one end of the scale, in other words, in circumstances where a party had become dissatisfied with the substance of the opinion of its first expert and sought to obtain a more favourable opinion from a new expert. However, there is a wide range of circumstances in which a party may wish to change its expert as explained in Edwards-Tubb.

This case is of interest because it is support for the proposition established in BMG (Mansfield) Ltd and another v Galliford Try Construction Ltd and another [2013] EWHC 3183 (TCC), that disclosure can extend beyond the original expert's final or draft report, to other documents in which the expert has expressed his or her opinion. In the view of the judge, the price a claimant has to pay for relying on the evidence of a new expert is the waiver of privilege in any final or draft reports and other documents setting out the expert's opinion, even in instances where there is no expert shopping.

The decision also adds to the jurisprudence relating to the power of the court to impose conditions when giving permission to adduce the evidence of a new expert regardless of the reason for changing expert (see Coyne v Morgan and another 166 Con LR 114). Although the nature of the conditions imposed will depend on the circumstances of the particular case, parties need to bear in mind that any communications with experts and any documents produced by experts must be treated as potentially disclosable.

Allen Tod Architecture Ltd (in liquidation) v Capita Property and Infrastructure Ltd (Previously Capita Symons Ltd) [2016] EWHC 2171 (TCC) (26 August 2016) (Bailii).