Most experts and lawyers believe that if an expert instructed for the purposes of litigation provides written advice in addition to a formal report for service, then such advice is privileged and not disclosable, even if the report is served and relied upon. Typical examples of such advice in a clinical negligence claim would be the initial review of the merits of a claim for the purposes of framing the allegations, advice about the letter of response or defence, and advice about the Defendant’s witness statements and expert reports. Sometimes an expert will also give advice in a covering letter accompanying the formal report. However, there does not appear to have been any recent authority on whether such advice is now disclosable until the decision in Odedra v Ball in June 2012.
This is a case in which the Defendants were alleged to have contaminated the Claimants’ land. There was a legal dispute between the parties about how the Claimants’ damages should be calculated. Both sides served reports from expert valuers.
The Claimants served a report from their valuer calculating the loss using the Claimants’ interpretation of the correct legal approach. However, the expert also provided an advice on what he believed the loss would be if the Court preferred the Defendants’ approach. This advice was not disclosed or relied upon, the Defendants learnt of its existence and applied for disclosure.
The Defendants relied upon a recent line of cases culminating in Edwards-Tubb v J D Wetherspoon Plc. These cases suggest that if a party is known to have obtained a report from expert A and then seeks to rely upon a report from expert B, the necessary permission will normally only be given on condition that expert A’s report is also disclosed. The Defendants in Odedra argued by an analogy that if the Claimants obtained a report and an advice from the same expert, then permission to rely upon the report should only be given if the advice was also disclosed.
Mr Justice Coulson accepted that because the Edwards-Tubb line of cases “emphasised the importance of openness under the CPR, and make it plain that, in certain circumstances, that openness will trump questions of privilege, there may be cases in which an expert may have to disclose both reports as a condition of being permitted to give evidence at all.”
However, the Judge also acknowledged that “There may be cases where requiring an expert to disclose everything that he produces, regardless of privilege, could give rise to injustice. Taking the point to its logical extreme, it might mean that all the expert’s draft reports become disclosable, or all documents produced by the expert for the sole purpose of assisting counsel with topics for cross-examination.”
The Judge held that there is no general rule that everything is disclosable, regardless of privilege, and found for the Claimants. However, the fact that he did not dismiss the Defendants’ position out of hand is a concern and suggests that the day may come where, in certain circumstances, parties are required to disclose privileged advice received from the expert in order to obtain permission to rely upon the expert’s report. It is therefore important to ensure that such advices do not contain anything which would cause embarrassment if they do have to be disclosed at some point.