Evidence — Expert report — Privilege — Preliminary draft prepared for legal advisers — CPR 35.10 — Whether party required to disclose expert’s preliminary draft report
The appellant was a specialist construction company. In the course of erecting a cooling tower, the respondent, one of the appellant company’s employees, was instructed to enter a concrete sump. While attempting to gain access by a ladder, the respondent fell into the sump and was injured. He alleged that the appellant had been in breach of its duty of care, and commenced proceedings for damages. The respondent’s solicitor instructed an expert to prepare a report. The expert prepared a report for the purpose of a conference with lawyers in April 2004. The expert then prepared a further report in June 2004, which was served on the appellant. The district judge ordered disclosure of both the first report and the substance of the expert’s instructions. The respondent’s appeal against this decision was allowed by the circuit judge. The appellant appealed.
Held: The appeal was dismissed. Draft initial reports produced by experts are privileged. The reference in CPR 35.10 to the “expert’s report” is, and must be, a reference to the expert’s intended evidence, not to earlier and privileged drafts of what may or may not become the expert’s evidence in due course.
The following cases are referred to in this report.
Carlson v Townsend [2001] EWCA Civ 511; [2001] 1 WLR 2415; [2001] 3 All ER 663, CA
Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1102; [2004] 1 WLR 220; [2003] 4 All ER 720, CA
This was an appeal by the appellant, Marley Davenport Ltd, from a decision of Judge Hul, sitting in Sheffield County Court, allowing an appeal from a decision of District Judge Mort, ordering the disclosure of an expert’s report in proceedings by the respondent, Alan Jackson, claiming damages for negligence.
Richard Maxwell QC (instructed by DLA, of Sheffield) appeared for the appellant; Patrick Field QC (instructed by Irwin Mitchell, of Sheffield) represented the respondent.
Peter Gibson LJ said:
[1] I will ask Longmore LJ to give the first judgment.
Giving the first judgment, Longmore LJ said:
[2] This appeal raises the question as to whether, if an expert makes an early report to his client before he makes the report that is later disclosed in the litigation as being the evidence that he intends to give at trial, the law requires that earlier report to be disclosed.
[3] Marley Davenport Ltd, the appellant in this action, is a specialist construction company, which, at the relevant time, was erecting a cooling tower in the Leuna chemical site, Mersburg, near Leipzig in Germany. It sent the respondent, Mr Alan Jackson, and a number of its other employees to the chemical site for the purpose.
[4] On 3 September 1999, the respondent’s supervisor had instructed him to work in a concrete pond or sump, known as the steam turbo set and cooling tower. Access down into, as I assume it must have been, the pond or sump was gained by a lightweight ladder provided by the appellant. The respondent asserts that the ladder was not tied or secured in any way and that the means of access to the top of the ladder was obstructed by pallets onto which various materials had been strapped. He further asserts that, while attempting to gain access to the ladder, or while he was on the ladder, he lost his balance and fell backwards into the sump, sustaining severe injury to his head and spinal cord. Unfortunately, he can remember nothing of the accident and in this action against his employers for breach of duty, he and his lawyers have sought leave to obtain expert assistance about the cause of the accident and the method by which he is likely to have sustained his injuries.
[5] On 6 May 2003, an order was made that each party was permitted to appoint one engineering expert and, more relevantly to this appeal, one pathology expert to give written evidence with a provision for exchange of expert reports.
[6] The respondent’s solicitor then instructed Dr Guy Rutty, professor of forensic pathology, as an expert witness in this case and asked him to answer certain questions and to prepare a report. It seems that Professor Rutty prepared a report for the purpose of a conference with lawyers on or around 6 April 2004. Thereafter, he provided a further report, dated 19 June 2004, which has been served on the appellant and in which he referred to two letters of instruction. He identified other specified documents that had been forwarded to him for the purposes of writing his report. In his report, he answered various questions, including the question no (1):
What was the nature and extent of the injuries sustained by Mr Jackson?
In the course of his answer, he stated that there had been a dislocation of the cervical spine at the level of C6/7. He said, further, that there was a complete disc prolapse with spinal cord contusion. The seventh question he was asked was whether, from the pathology of the rupture, it was possible to tell anything about the force of the trauma and its direction. In the course of answering this question, he said:
I think an entirely reasonable scenario is that Mr Jackson was attempting to get onto the ladder at the top of the sump but during this process the ladder became unstable and twisted which could account for the clattering sound heard by the witnesses and also the final position of the ladder shown in the reconstruction. As the ladder pivoted around one of its legs, Mr Jackson went backwards and to the left hand side, striking his head during his passage on the cross beam and sustaining the neck injury and in the process losing his hard hat which came to rest again in the position shown within the reconstruction.
He then summarised his conclusions in the following way:
Thus in summary, having now gained additional information in relation to this case, I am of the opinion that it is entirely possible that the claimant fell from the top of the sump in a backwards and slightly to the left direction probably whilst trying to get onto the ladder. During this process the ladder appears to have pivoted around one of its legs moving into the position shown within the reconstruction photographs. The claimant has gone backwards and to the left, possibly striking his head on the cross beam sustaining his neck injury |page:104| and losing his hard hat in the process or sustaining the neck injury as he hit the floor.
[7] The reference in this last passage to Professor Rutty having gained additional information in relation to the case indicated to the appellant’s solicitor that Professor Rutty might have changed his approach to the case in the light of the additional information he had obtained, and might have expressed a somewhat different view originally from that which he was now expressing in his report of 18 June 2004 as served. The solicitor therefore made an application to the district judge. There appears to be some controversy as to what that application was. Mr Richard Maxwell QC, for the appellant, has said in his skeleton that an application was made for disclosure of the earlier report, which was correctly presumed to exist, as well as for disclosure of the substance of the instructions that had been given to Professor Rutty. A skeleton served on behalf of the respondent, however, said that the application was to prevent the respondent from calling Professor Rutty or using his report at trial.
[8] Be that as it may, District Judge Mort made an order on 20 July 2004 that the respondent disclose Professor Rutty’s first report and that Professor Rutty was to comply with CPR 35.10(3), which provides:
The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
He further ordered that the trial of the action should begin on 20 September 2004. The respondent obtained leave to appeal that order on the grounds that earlier drafts of an expert report should not be disclosable to the other side and that Professor Rutty had sufficiently complied with CPR 35.10(3). On 11 August, Judge Hull, sitting in Sheffield, allowed the appeal.
[9] On 25 August, Keene LJ granted the appellant permission to appeal against Judge Hull’s order because he considered that an important point of principle arose from the judge’s decision on the powers of the court when allowing an expert to give evidence. He ordered the hearing to be expedited and we hear the appeal today.
[10] Judge Hull was asked only yesterday to correct the transcript of his judgment. On hearing that the appeal was to come on today, he corrected the transcript by retyping it himself and refaxing it to the court yesterday afternoon. The court is most grateful for that degree of expedition on his part. He held, first, that the court had no power under the rules to order the disclosure of an earlier draft report of an expert. He accepted Mr Turner’s submission that CPR 35.13 did not mean that every report produced by an expert had to be disclosed. It therefore did not override the law of privilege that would otherwise subsist in an earlier report. Second, he held, after directing himself by reference to Lucas v Barking, Havering and Redbridge Hospital NHS Trust [2003] EWCA Civ 1102; [2004] 1 WLR 220, that there was no reason to suppose that Professor Rutty’s record of his instructions was inaccurate or incomplete. He did not therefore order the disclosure of any specific document relating to such instruction. No question arises on that second part of Judge Hull’s judgment.
[11] However, Mr Maxwell argued that Professor Rutty’s earlier report should be disclosed. He submitted, first, that there is power to make such an order pursuant to CPR 35.13 or, perhaps, the court’s general case-management powers and, second, that if an expert’s view of a case “develops” after fresh information is given, and if the earlier views are contained in a report, that report relating to his earlier views is disclosable especially now that the CPR have adopted a “cards on the table” approach. Mr Maxwell was asked if that were the case even if the earlier report was privileged. He answered that it was and that that result followed from the terms of CPR 35.13. That rule provides:
A party who fails to disclose an expert’s report may not use the report at the trial or call the expert to give evidence orally unless the court gives permission.
[12] This does not, in my view, provide a power to order disclosure of expert reports that were made earlier than the expert report disclosed for the purposes of trial. It merely provides that a report cannot be relied upon at trial unless it is first disclosed, nor may an expert give oral evidence without providing a report, unless the court orders otherwise.
[13] There can be no doubt that if an expert makes a report for the purpose of a party’s legal advisers being able to give legal advice to their client, or for discussion in a conference of a party’s legal advisers, such a report is the subject matter of litigation privilege at the time it is made. It has come into existence for the purposes of litigation. It is common for drafts of expert reports to be circulated among a party’s advisers before a final report is prepared for exchange with other side. Such initial reports are privileged.
[14] I cannot believe that the CPR were intended to override that privilege. CPR 35.5 provides that expert evidence is to be given in a report unless the court directs otherwise. CPR 35.10 changed the previous law by providing, in sub-rule (3), that the expert’s report must state the substance of all material (whether written or oral instructions) on the basis upon which the report was written. By 35.10.4 it is, moreover, expressly provided that these instructions will not be privileged. But the reference in 35.10 to “the expert’s report” is, and must be, a reference to the expert’s intended evidence, not to earlier and privileged drafts of what may or may not in due course become the expert’s evidence.
[15] The specific and limited exemption from privilege of the instructions given to the expert as the basis upon which the report is to be written shows, to my mind, that there cannot have been any intention in the minds of the draftsmen of the CPR to abrogate the privilege attaching in other respects, for example, to earlier drafts of a final report or to earlier reports whether said, in terms, to be draft reports or not.
[16] This court has already held that it was not the intention or the purpose of the pre-action protocols, which are now required before an action is begun, to override the privilege attaching to the report of an expert whom a party has instructed but decided not to call: see Carlson v Townsend [2001] EWCA Civ 511; [2001] 1 WLR 2415. Although the facts of that case are very different from those in this case, it provides analogous support for the conclusion that it cannot have been intended that the rules should override privileges in earlier reports of an expert whom it is intended to call to give evidence at the trial. In my view, that conclusion is further supported by the terms of the code of guidance on expert evidence, which envisages legitimate amendments being made to expert reports in paras 17-19 of that code.
[17] Mr Maxwell then submitted that since an order had been made on 6 May 2003 permitting each party to instruct a pathology expert to give written evidence, provided that the reports were exchanged, and since a report had been made by Professor Rutty apparently in April 2004, CPR 35.13 required the disclosure of that report because it was part of his expert evidence as a whole. He said that partial disclosure, that is, disclosure of the later report only, was not allowed. That is not how I see the position.
[18] The report that was intended to be used at trial is Professor Rutty’s report of 18 June 2004. It is not, on its face, a partial or incomplete document. If it were, the position might be different, but it would, in my view, be a retrogression and not an advance in our law if earlier reports of experts, upon which they did not intend to rely, had to be routinely disclosed before they could give evidence. For the reasons given, I do not believe that that is the law.
[19] I agree with Judge Hull and would dismiss this appeal.
Agreeing, Tuckey LJ said:
[20] I agree.
Also agreeing, Peter Gibson LJ said:
[21] Despite the valiant efforts on the part of Mr Maxwell, for the appellant, to get this appeal on its feet, I am not persuaded that the judge made any error in holding that District Judge Mort was wrong to make the order that:
The first report of Professor Rutty be disclosed.
That was not the report that contained the opinion of the expert upon which reliance is to be placed at the trial. The report that has been disclosed was the only document containing the opinion of Professor Rutty upon which the respondent wished to rely. |page:105|
[22] It could have been provided in the CPR that the privilege attaching to documents coming into being with a view to litigation should not apply to any document prepared by an expert with a view to producing a report. But that is not the way in which CPR 35 is drafted. On the contrary, CPR 35 makes it clear how limited the waiver of privilege is when the expert report is put forward by a party with a view to reliance upon it. The order providing for an expert’s report does not itself waive privilege in any document. That occurs only once the party decides that the particular report upon which it wishes to rely should be disclosed.
[23] For these reasons, and the reasons given by my lord, this appeal should be dismissed.
Appeal dismissed.
