The defendant applied for an order requiring the claimant to answer a request for further information. The claimant had instructed an expert to prepare evidence for the purpose of proceedings (and so the expert fell within the scope of CPR r35). As such, this expert's advice is covered by litigation privilege. However, the defendant wanted further information about the expert's advice to the claimant.
Coulson J held that the request did go to a relevant issue in the case. He then considered the issue of privilege. He pointed out that questions of privilege and waiver do not prevent a party from answering a request for further information: the correct course is to set out privilege arguments in the answer to the request.
Although unable to decide the question of privilege without further evidence, the judge accepted that there is a possibility that relevant elements of the expert's advice were not privilege: "That is because it is not uncommon for a litigation expert, who is involved early in the relevant decision-making process, to give advice as to what should be done or not done. That advice may then be a matter of fact relevant to, for example, a decision to demolish or... Notwithstanding his instructions as a litigation expert, in those circumstances (and subject of course to the facts) that is a matter that may properly be the subject of cross-examination of the expert". Expressions of opinion or advice are generally covered by CPR r35 litigation privilege. However, experts sometimes carry out their own investigations at the scene (eg interviewing eye witnesses). Coulson J held that "Privilege does not usually attach to those aspects of their work and the material produced, such as their notes of the interviews, are disclosed to all parties".
Accordingly, the claimant was ordered to answer the request. The judge pointed out that the claimant was still entitled to seek to claim privilege over the requested documents, though, and, if the assertion is made out, no criticism could be levelled at the claimant for declining to waive privilege and no adverse inference could be drawn from the claim for privilege.
COMMENT: The distinction between an expert's advice and any factual investigation carried out by the expert, in relation to claiming privilege, is an important one. Initial factual investigations of a property loss should therefore be carried out by an "expert adviser" (ie an expert instructed before proceedings are started and on whom the party does not intend to rely in the litigation), rather than a CPR r35 expert, where possible. The Guidance on Instructing Experts (annexed to PD 35) states that "advice which the parties do not intend to adduce in litigation is likely to be confidential".