In nearly all disputes involving claims for professional negligence, the parties will instruct an expert witness to provide a report. The High Court has recently considered whether to order disclosure of an undisclosed expert’s report prepared at the same time as another report written by the same expert, which had been disclosed2. The issues of disclosure and privilege were explored.
Odedra sought damages for negligence as a result of the escape of heating oil from Mr and Mrs Ball’s heating tank to its property. Each party served reports from expert valuers. In correspondence, the claimant’s solicitors revealed that they had received another report from the same expert considering separate issues. The claimant’s solicitors refused to disclose the second report as Odedra did not intend to rely on it. The defendants applied to the Court for its disclosure.
The High Court stated that there is a requirement for openness in litigation and in certain circumstances that requirement will trump privilege. There may, therefore, be cases in which an expert may have to disclose every report he produces as a condition of being permitted to give evidence at all. However, there may equally be cases where requiring an expert to disclose everything that he produces, regardless of privilege, could give rise to injustice.
There is no general rule that everything is disclosable, regardless of privilege. The disclosure of the second report in this case was refused because both parties’ experts had become “slightly confused” and it would be wrong and potentially unjust to require the disclosure of reports based on misunderstood issues.
Although this claim relates to a negligence claim in respect of a property, it is an important reminder of the issues that need to be carefully considered when obtaining expert evidence. Had the judge in this case not considered that both experts had become “slightly confused”, the outcome may have been different. The need for openness in litigation and the courts’ desire to prevent “expert shopping” mean that a party who changes experts or obtains more than one expert report is at risk of having to disclose previous reports.