Expert’s report – Disclosure – Practice – Respondent seeking to rely on report of second expert and not that of first expert — Court granting unconditional permission – Appellant seeking disclosure of first report – Whether Civil Procedure Rules requiring court to order disclosure of first report before second report admitted – Appeal allowed
When employed by the appellant company, the respondent suffered a fall at work, for which the appellant accepted liability. Before issuing a claim for damages, the respondent obtained a report from an orthopaedic surgeon whose identity was disclosed to the appellant in a pre-action letter.
When the respondent issued proceedings he relied on a report from a different orthopaedic surgeon. The appellant applied for disclosure of the first expert report on the basis that disclosure ought to be made a condition of the permission that the respondent required under CPR 35.4. The application succeeded, but that decision was overturned on appeal on the ground that the order had impermissibly overridden the respondent’s privilege in the first report.
The appellant appealed. The respondent argued that although a party might require permission to change from one court-permitted expert to another in the same discipline, that requirement was limited to a change of expert after the issue of proceedings. The appellant contended that there was no sensible distinction between a change of expert before the issuing of proceedings and a change of expert afterwards because, in each case, pursuant to CPR35.4, the court controlled whether and on what terms to grant leave for the expert of choice to be called and it should exercise that power so as to discourage expert shopping and encourage openness.
Held: The appeal was allowed.
CPR 35 concerned experts who had been instructed to report for the purpose of proceedings and distinguished between an expert instructed to advise a party privately and one who was instructed to produce a report in respect of proceedings. Although reputable experts would no doubt treat each instruction the same, and it was wise to do so because a preliminary report might be required for subsequent use in court, their primary duty to the court under CPR 35 arose when they were instructed for the purpose of proceedings. There was no difference in principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert post-issue. A party had the same privilege in an expert report irrespective of when it was obtained. Conversely, the damaging features of expert-shopping were the same before or after proceedings were issued.
A party would be allowed to seek a second opinion, at its own expense. It would not usually be right to deny permission to rely on a second expert and thus force the party to rely on the first expert in whom it had lost confidence. However, that was a different question from whether the first expert’s report should be denied to the other party by the fact of the instructing party. An expert who had prepared a report for court was different from other witnesses. His duty was to the court and his report should contain the same information regardless of the party instructing him.
Whatever might be the reason for subsequent disenchantment with the original expert, once a party had initiated the pre-action protocol procedure of co-operation in the selection of experts, there was no justification for failing to disclose a report that had been obtained from an expert who had been deemed suitable by that party, had been accepted by the other party as such and had prepared a report. The court should exercise the control afforded by CPR 35.4 in order to maximise the information available to it and to discourage expert-shopping.
Accordingly, the power to impose a condition of disclosure of an earlier expert report was as available where the change of expert occurred before proceedings were issued as it was post-issue. Although it was a matter of discretion, that power should be exercised where the change came after the parties had initiated the protocol. Where a party had elected to take advice pre-protocol, at its own expense, there was not the same justification for hedging its privilege, at least in the absence of some unusual factor; it was free to take such advice on the viability of its claim as it wanted. An expert consulted at that time and not instructed to write a report for the court was in a different position and fell outside CPR 35.2.
Per curiam: CPR 35.11 provided that where a party had disclosed an expert’s report, other parties might use that report as evidence at the trial. Without more, the party to which the earlier expert report had been disclosed could put it in evidence, and its author was not available to be tested. That would sometimes be appropriate because the report might contain incontestable facts or an opinion that the judge could evaluate without seeing the author. However, in some cases, it would be a disproportionate consequence. The party that abandoned reliance on the report might have good reason, especially in a serious case, for needing to test or explore the strength of its contents. Although it was important not to expand the scope of litigation or satellite disputes unnecessarily, the courts had to be ready in the requisite circumstances to accept such testing. In such a case, the court should be ready to require the party to which such a report was disclosed to call the expert if it wanted to rely on it. That might occasionally generate a further need for case-management, but it was a necessary precaution if the party to which the report was disclosed was not to be presented with a potentially unfair advantage.
Jonathan Payne (instructed by Kennedys Law LLP, of Manchester) appeared for the appellant; Timothy Grice (instructed by Harris Fowler, of Taunton) appeared for the respondent.
Eileen O’Grady, barrister
