COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL COUNTY COURT
HIS HONOUR JUDGE DENYER QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
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Mr Jonathan Payne (instructed by Kennedys Law Llp) for the Defendant/Appellant
Hearing dates : 1st February, 2011
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Lord Justice Hughes :
"No party may call an expert or put in evidence an expert's report without the court's permission."
If the claimant has obtained a medical report from expert A, but chooses not to rely on it, and the leave he seeks is to rely on the evidence of expert B in the same field, ought he to be put on terms that before he can rely on B, he must disclose what A has said ? That is the question raised in this appeal.
"Although the report will not usually be on a joint basis, we would anticipate that you would disclose it in the majority of cases, to facilitate settlement. In the event that either the report is not disclosed, or we do not accept its conclusions we reserve the right to obtain our own."
So the counter-offer made clear that separate, rather than joint, instructions were contemplated and that any report would remain privileged unless and until disclosed for the purpose of being relied upon. In the event, the counter offer was not taken up, as clearly it did not have to be. The claimant's solicitors, as is now known, instructed one of the three surgeons they had nominated, namely Mr Jackson. He examined the claimant on 19 March 2007 and provided a report dated 14 May 2007. That report has never been relied upon or disclosed by the claimant.
i) Simon Brown LJ pointed out that the claimant in that case had yet to ask the court for leave to rely on the report of Mr D. But he did not suggest that when he did ask, the court should make it a condition of leave that the report of Mr A should be disclosed. Rather, he remarked at paragraph 22, point 4, that:"One sanction not available to the court, however, would be to override the claimant's privilege in Mr Trevett's report."
ii) Further, at paragraph 20 the Lord Justice cited the following extract from Lord Woolf's final Access to Justice report (July 1996), dealing with the protocol we are considering:"Provided at least two names are acceptable to both parties, the claimant may reject a report by the expert of his first choice without letting the defendant know that he had done so."
iii) At paragraph 21 of the same judgment, Simon Brown LJ concluded that if the claimant had, instead of instructing Mr D, gone to the second of the experts to whom the defendants had originally raised no objection, there could have been no question of his being ordered to disclose the earlier report of Mr A, which would have remained privileged.
iv) At paragraph 36 Brooke LJ said of the protocol that it was not its aim to deprive a claimant of the opportunity to obtain confidential pre-action advice about the viability of his claim, which he would be at liberty to discard undisclosed if he did not agree with it.
It is clear that these remarks were made in the context of the rejection of the contention that the first report, of Mr A, was a jointly obtained report. That is particularly so of the observations cited from the judgment of Brooke LJ, which are followed immediately by the statement that the protocol contains no hint of an intention that a report by a surgeon to whom no objection had been taken should thereby become a joint report. It is also significant that Simon Brown LJ was subsequently party to the decision in Beck and that Brooke LJ was subsequently party to the decision in Vasiliou (both infra). The simple fact is that no-one was arguing in Carlson for the kind of conditional order now in question and there is no sign that the court addressed it as a possibility. What is, however, left is a clear assumption that unless the first report was a joint one the claimant's privilege in it remained undisturbed. Moreover, the citation from Access to Justice suggests that it was also not contemplated at the time of the framing of the protocol and of the CPR that the kind of conditional order made in the present case would be generally available.
"26. I do not say that there could never be a case where it would be appropriate to allow a defendant to instruct a fresh expert without being required at any stage to disclose an earlier expert's report. For my part, however, I find it difficult to imagine any circumstances in which that would be properly permissible…" (per Simon Brown LJ)
"30. …expert shopping is to be discouraged, and a check against possible abuse is to require disclosure of the abandoned report as a condition to try again. I agree…that the appeal should be allowed to that limited extent." (per Ward LJ)
"32. …..a claimant can reasonably object to having to be examined again if this is, or may be, because the conclusions reached by the first expert have proved more favourable to him that the defendants had anticipated.
33. I do not consider that the court should order a second examination or stay proceedings pending a second examination by a new expert if this is a possibility. So to order would be to permit the possibility of expert shopping which is undesirable. .…
36. The answer in this case, and in any case where a situation similar arises is…that the permission to instruct a new expert should be on terms that the report of the previous expert be disclosed. Such a course should both prevent the practice of expert shopping and provide a claimant in the position of Mr Beck with the reassurance that the process of the court is not being abused. In this way justice will be seen to be done." (all per Lord Phillips MR).
"The principle established in Beck is important. It is an example of the way in which the court will control the conduct of litigation in general and the giving of expert evidence in particular. Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it. It needs to be emphasised that, if a party needs the permission of the court to rely on expert witness A in place of expert witness B, the court has the power to give permission on condition that A's report is disclosed to the other party or parties, and that such condition will usually be imposed. In imposing such a condition, the court is not abrogating or emasculating legal professional privilege; it is merely saying that, if a party seeks the court's permission to rely on a substitute expert, it will be required to waive privilege in the first expert's report as a condition of being permitted to do so."
i) A party has exactly the same privilege in an expert report which he has obtained whenever he obtains it.
ii) Conversely, the damaging features of expert shopping are exactly the same whether it is undertaken before or after issue.
iii) If the suggested distinction were to be the touchstone for the imposition of a condition of disclosure, that would create a quite baseless difference between the case where the court has made an order in the form "Leave to the claimant to rely on Mr A and the defendant on Mr B" and where it has made an order in the form "Leave to each party to rely on one consultant orthopaedic surgeon". That would be because in the former case the party changing experts would need to ask the court to substitute one name for another and in the latter case he would not. It may be that it is better practice for the order to name the expert, or to give the parties leave to notify the name within a limited period, but it may sometimes be almost a matter of accident which of these orders is made, especially if one or other party has not yet identified his expert. If, however, the condition can properly be attached where appropriate not merely to a variation of an order, but to the original CPR 35.4 order, this problem does not arise.
iv) In fact, since CPR 16PD.4 requires a claimant to attach his preferred medical report to his particulars of claim, even if he changes his expert subsequently the occasion for a condition of disclosure will not normally arise, since ex hypothesi report A will have been disclosed at service of the claim.
v) The whole ethos of personal injuries litigation since the introduction of the Civil Procedure Rules and its associated protocols is to expect of litigators and parties an equivalent level of openness and communication before and after issue. There may sometimes be costs complications in this "front-loading" of litigation, but the overall concept undoubtedly remains valid. It is an important pillar of the modern system of such litigation that the issue of proceedings should be rendered unnecessary to many claims, and the protocols are designed to achieve this by laying down good practice for pre-issue conduct, including the obtaining of evidence. Once the pre-action protocol letter is written the parties are expected to engage constructively in, among other things, the selection and instruction of experts. The expectation is that this will be accomplished largely, if not often wholly, before issue of proceedings.
i) whilst it does not remove privilege, it does amount to a significant practical fetter upon its exercise;
ii) "cards on the table" means that cards which one is going to play should be face up from an early stage; the disclosure of cards one is not going to play is a different matter;
iii) the passage from Access to Justice quoted in Carlson and reproduced at paragraph 15(ii) above shows that the imposition of a disclosure condition was not then contemplated by Lord Woolf;
iv) a medical report is a practical necessity in most significant personal injuries cases;
v) whilst the leave of the court is required under CPR 35.4 for reliance on such a report, the grant of such leave is therefore normally common form; an application for such leave does not usually raise a live question of judgment or discretion in the same way as, for example, an application for a second medical examination of the claimant or for permission to substitute doctor B for doctor A;
vi) therefore to impose the condition routinely is a disproportionate interference with the established right of privilege.
I would also accept that if the imposition of the condition in the present case is upheld, and such conditions are to be treated as the normal order, 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.
"Expert shopping is undesirable and, wherever possible, the court will use its powers to prevent it."
"Where a party has disclosed an expert's report, any party may use that expert's report as evidence at the trial."
Without more, that means that the party to whom the earlier expert report is disclosed can simply put it in evidence, and its author is not available to be tested. That will sometimes be perfectly appropriate. The report may contain a matter of fact which is incontestable, or an opinion which it is perfectly possible for the judge to evaluate without seeing the author. But there may be some cases in which it is a disproportionate consequence. The party who is abandoning reliance on the report may have good reason, especially in a serious case, for needing to test or explore the strength of its contents. Whilst it is important not unnecessarily to expand the scope of litigation or of satellite disputes, courts should, I believe, be ready in occasional cases where the circumstances genuinely require it to entertain argument that such testing will be necessary. Where, in such a case, it is necessary to do so to do justice, the court should be ready to consider requiring of the party to whom such a report is disclosed that he call the expert if he wishes to rely on it. I agree that this may occasionally generate a further need for case management, but it seems to me a necessary precaution in some cases if the party to whom the report is disclosed is not to be presented with a potentially unfair tactical advantage.
Lord Justice Richards:
Lord Neuberger MR