Edwards-Tubb v J D Wetherspoon PLC – discouragement of expert shopping [2011] EWCA Civ 136 www.bailii.org/ew/cases/EWCA/Civ/2011/136.html

Where a party requires the court’s permission in order to rely upon the evidence of an expert, the court should impose as a condition the disclosure of any report already obtained by that party from another expert in the same field. The fact that the earlier report was obtained pre-action does not affect this, as long as the original expert was instructed as part of the pre-action protocol procedure.

The claimant brought an injury claim against his employers. In accordance with the personal injury pre-action protocol, the claimant gave notice of three orthopaedic surgeons whom he might instruct and the defendant made no objections to any of them. One of the named experts, Mr Jackson, examined the claimant and produced a report. The claimant did not disclose the report and served with the particulars of claim a report from a different surgeon, Mr Khan. He revealed in his report that the claimant had already seen an orthopaedic surgeon and this, coupled with the fact that Mr Khan was not one of the three experts notified to them, alerted the defendant to the existence of Mr Jackson’s report.

Relying upon the earlier Court of Appeal decisions in Beck v Ministry of Defence and Hajigeorgiou v Vasiliou, the defendant issued an application for disclosure of Mr Jackson’s report, on the basis that the disclosure ought to be a condition of the permission the claimant needed under CPR 35.4 to rely on Mr Khan’s evidence.

The Deputy District Judge made the order sought but on appeal Judge Denyer QC discharged the condition on the ground that it impermissibly overrode the claimant’s privilege in Mr Jackson’s report. On a second appeal to the Court of Appeal, the original decision was restored.

The Court of Appeal endorsed its earlier decision in Carlson v Townsend that a claimant is 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. However, where the advice is obtained after the initiation of the protocol procedure where the parties have therefore engaged with each other in the process of the claim, the expert is instructed as an expert in connection with the forthcoming proceedings. In those circumstances, as stated in Hajigeorgiou v Vasiliou, “expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it”.

Comment

On the face of it, an observer could understandably assume that, since the Court of Appeal was concerned with the position of a claimant under the personal injury pre-action protocol, this decision has little relevance to those acting for defendants in non-injury claims. This would be a mistake. The general principles developed by the Court of Appeal in the three cases referred to are intended to apply to all civil litigation (Hajigeorgiou v Vasiliou concerned valuation evidence) although it is the case that the issue of disclosure tends to arise more frequently in injury cases. This is because the claimant has to be examined each time there is a change of expert - defendants need the claimant’s agreement to a second examination (as was the case in Beck) and the second expert will be able to see (and therefore reveal in his report) that an earlier expert has been involved from the claimant’s medical records (as occurred in Edwards-Tubb).

There is, however, one passage in the judgment which suggests that it might be possible to argue that the extension of conditional orders to pre-action reports should only apply where the protocol requires the parties to co-operate in choosing experts. The passage in question reads “… once a party has embarked on the pre-action protocol procedure of co-operation in the selection of experts, there seems to me no justification for not disclosing a report obtained from an expert who has been put forward by that party as suitable for the case, has been accepted by the other party as suitable, and has reported”. However, since the decision is based on the approach taken in Hajigeorgiou v Vasiliou, this argument is unlikely to be successful.

In extending the (in effect) compulsory waiver of privilege to pre-action reports, the present decision does not consider the position of the defendant as distinct from that of the claimant. The claimant initiates the protocol procedure and can therefore obtain expert advice before sending a letter before action. This advice will never have to be disclosed. 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 will have to be disclosed as a condition of obtaining the court’s permission to call evidence from another expert in the relevant field if the claimant is able to find out about it and asks for its disclosure. The Court of Appeal is clear that this should become the normal order and appreciates that “it is likely that one party may ask the other whether there has or has not been any prior report, and/or may seek orders with the condition attached whether or not there is some positive indication that there has been one”. Such enquiries are likely to become routine and parties should assume that they will have to disclose an earlier report as a condition of obtaining permission to rely upon expert evidence in the same field.

This conclusion about the wide scope of the decision in Edwards-Tubb is fortified by the approach taken recently to privilege and experts’ reports in Axa Seguros SA De CV v Allianz Insurance Plc. Christopher Clarke J held that expert reports from engineers Halcrow about the damage caused to roads in Mexico by Hurricane Juliette obtained by the defendant reinsurers were not protected by litigation privilege because they were not obtained for the dominant purpose of anticipated litigation between the claimant insurers and the defendants. However, he also commented on the position had he concluded that the reports were privileged, given that Halcrow had been appointed by the defendants as their Part 35 experts. The judge’s view was that if Halcrow were to give evidence in the proceedings, documentary evidence of their investigations could not properly be withheld, particularly if that evidence was unhelpful to the defendants’ case. Their duty as experts would require them to inform the court of any matter known which was inconsistent with or which cast doubt on their expert opinion and he could not see how Halcrow could perform this role without revealing the details and records of inspections they had carried out. This means that a party will always need to appoint different Part 35 experts if they wish to try and maintain privilege over contemporaneous reports. Even then, if they show the contemporaneous reports to the Part 35 expert, that expert will be under a duty to inform the court of any details which bear upon their expert opinion.