England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(HIS HONOUR JUDGE BARHAM)

		Royal Courts of Justice Strand London, WC2
		7th December 2006

1. SIR IGOR JUDGE: This is an appeal from the decision of HHJ Barham, made on 3 November 2006 at Norwich County Court. His decision was concerned with a medical report in draft form, as it still is, prepared by Dr Leng on behalf of the claimant. The effect of his order is that the report must be disclosed and served on the defendants.
2. I can put the order and the issues into their context by briefly summarising the facts. The unfortunate claimant was injured in two road traffic accidents which occurred roughly a fortnight apart on 21 May and on 4 June 2001. In those accidents she suffered injury as a result of the admitted, but separate, negligence of each of the two defendants. The issue is quantum, and it is clear from the papers that the parties have sensibly been trying to discover whether or not a settlement may be possible.
3. To begin with the court was supplied with evidence from a jointly-instructed orthopaedic surgeon and then a jointly instructed consultant neurologist. Their views were consistent with each other but in the end it was advised that psychiatric evidence on the claimant should be obtained. At that stage both sides instructed their own consultant physiatrists, and one of the issues in the case arises from the opinion of Dr Olive, on behalf of the defendants, that at least some of the complainant's symptoms are exaggerated, and at least partly, deliberately exaggerated.
4. On 17 October 2005 the trial fixed for 8 November was vacated by consent so that the claimant could seek a report from the consultant neuropsychologist, Dr Leng. He was to investigate the possibility that the claimant had suffered brain damage. Unconditional permission was granted for this purpose. On 18 January the case was restored to the list of District Judge Sparrow. In the course of a telephone hearing he made a number of orders, of which two are relevant for present purposes: 1) the claimant shall file and serve Dr Leng's report by 4.00pm, 28 February 2006. 2) the defendant shall file and serve Dr Olive's report by 4.00pm, 15 March 2006.
5. The order was made after a telephone exchange between the district judge and the solicitor acting on behalf of the claimants. As it happened one of the solicitors was in danger of losing his voice, so what happened was that Mrs Escott, on behalf of the claimants, did most of the talking -- no harm in that. She told the judge what was proposed, that Dr Olive's report should be disclosed by 15 March, which would give him time to see the claimant and provide a report and then she said, "What I should say is that there is also a provision for us to obtain a report from Dr Leng." Dr Leng's identity was then explained to the district judge and the solicitor said that there had been a settlement meeting, that issues which arose needed to be addressed, and that the solicitors for the claimants were quite happy about the position of Dr Olive. She went on:

"We also have some issues with regard to some aspects of our client's injuries which we felt again required Dr Leng to see her and just do some neuro-psychiatric testing, and again, the defendants were happy for that, because we think that this will then give us a clearer picture, and hopefully help us to reach a settlement."

6. In my view it is critical to this discussion to notice that the object was to see whether a settlement could be reached between parties who, at this stage, were still trying to achieve one. The judge then asked the solicitor for the defendants whether he had a neuropsychologist up his sleeve, to which the solicitor replied, no doubt hoarsely, that he did not. Provision was made for the possibility of a joint statement and then the solicitor for the claimant said:

"I think the first thing would be for Dr Leng's report to be filed and disclosed by 28 February."

The judge said that he would write that out and he did indeed write it out in the terms already narrated.

7. This exchange is said by Mr Jupp, on behalf of the defendants, to demonstrate a complete waiver of any privilege by the solicitor. He has drawn our attention to one of the observations in Mohamed Al Fayed and Others v Commissioner of Police of the Metropolis and Others [2001] EWCA Civ 780, and in particular paragraph 16.ii which indicates that a solicitor acting as an advocate is clothed with ostensible authority, if not implied or express authority, to waive privilege.
8. The issue which we have to consider is whether the order made by District Judge Sparrow contained within it, at any rate an implicit reservation, that the disclosure would be subject to a decision by the claimant to use Dr Leng's report in the course of the litigation, and in any event whether privilege was waived.
9. The making of the order and the circumstances in which it was made are relied on by Mr Jupp to demonstrate that privilege was waived and, further, that nothing could be implied to the effect that service of the report would indeed depend on whether or not the claimant proposed to rely on it. That is why I have taken time to set out the exchange in full.
10. On 28 February the claimant's solicitors wrote to the solicitors for the defendants saying that they would not be serving the report:

"We are pleased to say that our client has been examined by Dr Leng who tells us that while there are symptoms which could relate to a traumatic brain injury, on the very clear balance of probabilities these most likely relate to the anxiety, depression and PTSD. These are of course fully reported upon elsewhere. It follows from this excellent news that we will not need to trouble the Court with a further expert and will not be serving a report from a Consultant Neuropsychologist."

11. The response was effectively by return of post from the solicitors acting for the defendants:

"Thank you for your letter of 28 February, the contents of which are noted. Indeed the position is noted. We presently await hearing from Dr Olive who is we understand completing his report."

12. There is nothing in that letter to suggest any sense of grievance or complaint at the decision that a report from Dr Leng should not be served; nor anything to suggest that there was some failure to comply with the order made by District Judge Sparrow. Indeed we have now discovered that there was no correspondence between the parties, in particular from the defendants, making any complaint on that score until the beginning of August. By the beginning of August efforts to achieve a settlement appear to have broken down and so the matter came on for further directions and case management by District Judge Hamilton on 15 August.
13. On 15 August, while dealing with case management issues, District Judge Hamilton made an order for "the time for the claimant to comply with paragraph 1 of the Order of 18 January 2006 to be extended to 4.00pm on 22 August 2006". The context in which she came to make that order was an application by Mr Jupp, appearing for the defendants, in these terms:

"There are a couple of matters […] which I am instructed just to raise."

He then referred back to the order made by District Judge Sparrow, that Dr Leng's report should be filed and served and said, paraphrasing, that the claimant's solicitors had not filed that report and that they, that is his clients, would like to see it:

"Given that the order was for the claimant to disclose that report."

The judge asked counsel then appearing for the claimant whether there were any opposition. Counsel said in terms that there was, and explained why the claimant took the view:

"That the order was really a permissive order that the claimant had permission to rely on it rather than a mandatory order."

To which the district judge said, "Oh, I do not think so. I think that says 'shall'." So she said she would just extend time for compliance with the order. So, the claimant was required to file and serve Dr Leng's report. That led to the appeal before HHJ Barham and now, indeed, to this court.

14. The judgment of HHJ Barham summarised the arguments before him and in effect, although perhaps more sophisticatedly presented, they remained the arguments before us:

"A number of submissions are made on behalf of the claimant […] firstly, that the defendants were not entitled to seek disclosure of Dr Leng's statement [because] the claimant [is] not calling him [as a witness]. [His] report was privileged and disclosure can not be ordered [of it]. Secondly, [if there was any problem with that, the order on 18 January should be interpreted, so as to give effect to the principle that if the claimant was not calling Dr Leng, she should not be obliged to disclose because the report was privileged]. Thirdly, it is said that CPR 3.1 gives the court power to vary or revoke an order and the District Judge Hamilton should have [varied or revoked] Judge Sparrow's order [if there was any misunderstanding of the effect of District Judge Sparrow's order]"

15. The defendants contended the opposite. For the appeal to succeed the claimant had to establish that District Judge Hamilton was wrong. The order made by District Judge Sparrow could not be interpreted in the way contended for by the claimant. There were no grounds on which District Judge Hamilton would have been entitled to set aside or bury the order. The power given to the court under CPR 3.1 arose in limited circumstances, which did not arise in the present case and a number of examples were given. The submissions as summarised by the judge continued that the power does not exist when one party is simply asking the court to consider the order it had made on an earlier occasion on the basis of the same material.
16. The judgment was very brief. HHJ Barham recorded that he agreed with the submissions made on behalf of the defendants. He therefore agreed that District Judge Hamilton had no power to vary or set aside the order made by District Judge Sparrow. The appeal was accordingly dismissed.
17. As is plain, this judgment did not address directly or indirectly any issue of privilege. Instead, it focused on the absence of jurisdiction to make the order sought by the claimant that the relevant part of Judge Sparrow's order should either be revoked, or at any rate amended to make clear that the service of Dr Leng's report was not obligatory. This depended on whether the claimant intended to use it or not.
18. HHJ Barham's reasoning continues to be supported by the respondents, but in my judgment it is mistaken. We must remember that the respondent, not the claimant, was seeking an extension of time from District Judge Hamilton to file and serve Dr Leng's report. It was being argued on her behalf that because she did not intend to rely on the report, she was not obliged to do so. That would be a matter covered by privilege. Time was in fact extended by District Judge Hamilton because she rejected the submission on behalf of the claimant.
19. In my view the order of District Judge Hamilton was wholly parasitic on District Judge Sparrow's order, made on 18 January. The essential question before District Judge Hamilton was indeed whether the claimant was obliged to file and serve Dr Leng's report. If she was not so obliged then there was no jurisdiction to order that it should be served and filed at all. It is implicit in the hearing and in the judgment that the judge must have decided that the claimant was obliged to serve and file whatever report Dr Leng had produced. Accordingly, in my judgment, HHJ Barham was not prohibited from considering the applicability, or enforceability, or meaning of the original order, or if he thought right, to interfere with the decision of Judge Hamilton, and on this appeal from his decision, as it seems to me, neither are we.
20. If necessary, I should also have considered the sensible application of Order 3, Rule 1, to this situation. Order 3, Rule 1 provides: "That the court has power to make an order" which includes a power to vary or revoke another order. It would have been unsurprising if the claimant's solicitors, and for that matter the defendant's solicitors, understood that the order that Dr Leng's report should be filed and served was subject to the condition that she proposed to rely on it. That explains why her solicitor's letter was unchallenged for so many months. It also would explain why, as it seems to me, the defendant's solicitors would have taken significant umbrage if they had decided not to rely on Dr Olive's report and were nevertheless ordered to serve it, whether they intended to use it at the hearing or not. This, after all, is the normal understanding of how disclosure issues arise and is consistent with the arrangements in Order 35, Rule 13, which provides that the sanction for non-disclosure of a report of this kind is very stark and simple. The parties seeking to rely on it may be prevented from doing so. The surprise would also be consistent with the general principle that such reports are privileged from disclosure, unless they are to be used at the hearing or unless privilege in them has been waived.
21. For present purposes it is unnecessary to attempt to set out an anxious parade of numerous authorities on the point. The principle is clear. The report of an expert instructed by one of the parties is normally a privileged document and nothing in the Civil Procedure Rules, nor in the pre-action protocols, nor in any authority that has been drawn to our attention disapplies the principle.
22. In all these circumstances I myself would doubt very much whether all the very sensible restrictions on the deployment of Order 3, Rule 1, illustrated in among other decisions Collier v Williams [2006] EWCA Civ 20 (39 to 40) were intended to apply to a situation in which the exact meaning and implication of the order were unclear and which might require amendment for the purposes of clarification.
23. Of course privilege may be waived. Neither District Judge Hamilton nor HHJ Barham appear to have addressed this point. They certainly did not find that there had been waiver. I can find no evidence of waiver. The application for the order on 17 October and the subsequent order on 18 January did not, in my judgment, constitute a waiver. No precise reason for waiver was demonstrated. No such words were used. Unsurprisingly no express conditions requiring waiver was attached to the order by which the claimant was entitled to seek Dr Leng's assistance. In those circumstances it seems to me unlikely in the extreme that a solicitor would waive privilege in a document which she or he had not yet seen because it had not come into existence.
24. The recurring theme in this case is fairly simple. It comes to this: if Dr Leng's evidence was to be used, the report had to be filed and served. If a decision was taken that it should not be used it should be protected in the normal way by privilege. The order made on 18 January should be read not as an order which in effect brushed aside privilege, nor as evidence of waiver, but as an application of a well understood principle in the context of a possible settlement. If necessary, and for myself I doubt very much whether it is necessary, I should be prepared to add words to the effect "if relied on", or something to that effect, in the order.
25. In my judgment, the order made by District Judge Hamilton apparently seeking to enforce District Judge Sparrow's order, and HHJ Barham, upholding the decision of Judge Hamilton, overlooked this essential point. My view can be tested in two further ways. The first, I have already touched on, is that if the defendants had decided not to rely on Dr Olive's report, I should have been astonished if they would have conceded that they were obliged to disclose it, and, second, the consequences if I am wrong would be absolutely astonishing. Presumably it would mean that the claimant would be at risk of being de-barred from pursing her claim on the basis that she had not complied with the order. Yet Order 35, Rule 13 makes clear the limited consequences which may follow from non-disclosure of a report. Neither of those conclusions would be supportable.
26. In my judgment therefore the appeal must be allowed.
27. LORD JUSTICE LAWS: I agree that this appeal should be allowed for all the reasons given by my Lord, the President. I add a few words only because we are differing from the judge below.
28. I am quite clear for the reasons given by my Lord that at the hearing on 18 January 2006 the claimant's solicitor did not waive her client's privilege in the anticipated report from Dr Leng. That being so, the district judge's order of that date must in my judgment be read as subject to an implied limitation, namely that it would only take effect if the claimant sought to rely on the report in the litigation. Without such a limitation the order would amount to a direction to the claimant to abandon her litigation privilege in the report; but the district judge had no power to order any such thing. On ordinary principles the order should be construed in such a way that it falls within and not without the judge's jurisdiction. The limitation I have mentioned is necessary to such a construction. However, the order of 15 August 2006 was made on the premise that the order of January was not subject to that limitation. That was a false premise.
29. The August order is accordingly flawed and therefore liable to be set-aside on appeal.
30. LORD JUSTICE LEVESON: I agree with both judgments.

Order: Application granted.