Once upon a time, it was possible to obtain expert advice in connection with a dispute in the certain knowledge that it was privileged and would never have to be shown to the other side. The introduction of CPR 35 and the principle of openness in litigation shook things up a bit but, initially at least, the courts were clear that experts’ draft reports should not be disclosed (Jackson v Marley Davenport Ltd), and that a claimant remains entitled to obtain at his own cost privileged pre-action advice about the viability of his claim and to discard it without ever being at risk of disclosure (Carlson v Townsend).
In recent years, the Court of Appeal has been concerned to stop expert shopping. The method employed is to require waiver of privilege over the report of the previous expert in return for permission to rely upon the evidence of another expert in the same field. This now applies not only where the first report was obtained after proceedings began, but also where it was obtained as part of the pre-action protocol procedure (Edwards-Tubb v J D Wetherspoon Plc).
Earlier this month, Coulson J in Odedra v Ball held that, where an expert has prepared two reports for a party on different points or ways of presenting its case and only one is disclosed to the other side, there may be circumstances where the court should require disclosure of the second report if the expert is to be allowed to give any evidence. He stopped short of saying that an expert should have to disclose all of his reports, draft or otherwise, but appeared to be endorsing the principle that openness should often trump privilege.
This approach chimes with that expressed by Christopher Clarke J in Axa Seguros SA De CV v Allianz Insurance Plc. In his view, where a party engages an expert to advise immediately after an accident or event and subsequently uses that expert as their Part 35 expert for trial, it will almost certainly be impossible to maintain privilege over the contemporaneous report, since the expert (and any other expert shown the report) will be under a duty to inform the court of any details which bear upon their expert opinion.
Where does that leave us?
As far as expert shopping is concerned, claimants have the advantage. The claimant initiates the protocol procedure and can therefore obtain expert advice before sending a letter before action. He will not be required to waive privilege in this report as a condition of relying on evidence from another expert. The defendant, on the other hand, has no control over timing and may well not know enough about the claim before receiving the letter before action to take expert advice at that stage. This means that any report obtained by a defendant during the protocol process could have to be disclosed as a condition of obtaining the court’s permission to call evidence from another expert in the relevant field.
Both parties are at risk when it comes to disclosure of an expert’s draft reports and additional reports on ways of formulating the case which prove to be unattractive. Where a case proceeds to trial, an expert has always been at risk of cross-examination about his earlier reports. Odedra v Ball goes a step further by supporting, in principle at least, pre-trial disclosure of an expert’s discarded and draft reports, despite their privileged status. This is likely to give rise to routine enquiries from the other side about other reports and has the potential to encourage undesirable satellite litigation, in which case the Court of Appeal may be called upon to redress the balance in favour of privilege. In the meantime, for the solicitor who understands the stakes, this is a game which can be played to his client’s advantage.