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Cite as: [2006] ScotCS CSOH_178, [2006] CSOH 178

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 178

OPINION OF LORD CARLOWAY

in the cause

AMY WHITEHEAD'S

LEGAL REPRESENTATIVE

Pursuer;

against

GRAEME JOHN DOUGLAS

AND ANOTHER

Defenders:

________________

Pursuer: Laing; Thompsons

Defenders: G Walker; Simpson & Marwick, WS

20 November 2006

1. The Action

[1] The pursuer is the mother of Amy Whitehead. Miss Whitehead was aged twelve when she was struck by a van driven by the first defender, who was in the course of his employment with the second defenders. The accident occurred on 6 December 2002 on the B876 road at East Kirk, near Wick. The circumstances, so far as not in dispute, are tragically familiar. Miss Whitehead had travelled home from school by bus. She had alighted and gone towards the rear of the bus before attempting to cross the road to her house. It was when she moved across onto the opposite carriageway from the direction of travel of the bus that she was hit by the van. Miss Whitehead sustained serious injuries, especially to her left leg, which nearly had to be amputated.

[2 ] The pursuer contends that Miss Whitehead was walking across the road. She avers that the first defender failed to slow down or to give any audible warning of his presence as he passed the school bus. He failed to keep a good lookout. It does not appear that the pursuer is alleging that the first defender was driving at an excessive speed as a generality. The defenders maintain that, in anticipation of children emerging from behind the bus, the first defender had slowed down. Miss Whitehead had simply run out across the road into his path without looking. As well as alleging sole or partial fault on the part of Miss Whitehead, there is a curious case of negligence pled against the pursuer for failing to instruct her daughter on how to cross the road.

2. The Reports

[3 ] A proof has been fixed for 28 November 2006 and the three following days. The pursuer has elected to lodge two reports in process. The first is from Steven Parkin, an "Accident Reconstruction ... Specialist" based in England. His report is dated 14 January 2004. It contains material which appears to be intended for use in the English courts, notably something called an "Expert's Declaration" which narrates, inter alia, that:

"12.1 I understand that my duty included in my providing written reports and giving evidence is to help the Court, and that this duty overrides any obligation to the party who has engaged me ...

12.4 I have indicated the sources of all information I have used ...

12.7 I understand that;

a) my report, subject to any corrections before swearing as to its correctness, will form the evidence to be given under oath or affirmation..."

In an appendix, Mr Parkin sets out the documentation he reviewed as follows:

"... Documentation reviewed ...

Statements taken by Solicitors or agents:

Alison COLE (3.7.03 - unsigned)

Pc 181 Martin Scott BLAIR (23.10.03 - unsigned)

William McLEOD (23.10.03 unsigned)

Other documentation

Personal Injury Compensation Form completed by Alison COLE (13.5.03)..."

It is accepted that Mr Parkin's reference to "statements" is to precognitions taken by law agents. The Form is one completed by the pursuer and addressed to her Trade Union with a view to the institution of legal proceedings.

[4 ] Mr Parkin selects what he describes as "Salient Points from the Witness and Involved Party Statements". He quotes certain extracts. The first quotation is taken not from a precognition but from an Ambulance Service Patient Report Form, probably completed by the ambulance crewman, Mr McLeod. A history is noted shortly as: "Patient was struck by a van, possibly thrown 30ft along the road". The report records that Mr McLeod's precognition states that this information was an assumption from Mr McLeod's recollection of the relative positions of the van and Miss Whitehead. Secondly, there is an extract from the Compensation Form which includes:

"My daughter got off school bus outside house. Waited 'til bus well up road then crossed road. She was hit by a Transit van at approx 60-70 mph. I was first on scene of accident. Driver only just getting out of van and he said he didn't see her ... No skid marks on road and her school bag and shoes were on out side of the road so she must have been nearly across the road."

The extent to which this information could have come directly from the pursuer is not clear. There is then reference to parts of the pursuer's precognition. This contains references to the weather and light, to her seeing the bus pull away, to going out onto the road and seeing the condition of the van, her daughter and the location of her daughter's bag and shoes. It records that the first defender had said to her: "I'm really sorry I just didn't see her". It also refers to a conversation which the pursuer had with Miss Whitehead about the accident in hospital and to things supposedly said by the first defender to Miss Whitehead in a telephone call to the hospital. Thirdly, there is a large extract from a precognition of PC Blair, but this appears to be a verbatim record of a statement given to him by the first defender. The report paraphrases PC Blair's precognition concerning his examination of the van and the locus. Mr Parkin draws certain conclusions about the speed of the van. He expresses the view that the accident could, or perhaps would, have been avoided if the first defender had slowed down. It also suggests that the first defender might have used his horn.

[5 ] The second report lodged by the pursuer is from a chartered clinical psychologist, Dr Katherine Edward. It is dated 27 September 2006. This is a psychological assessment of Miss Whitehead. It is prefaced with the following:

"The information upon which this report is based, was gained from:

(i) Interview with Amy Whitehead and her mother ... on 21^st August 2006.

(ii) Interview with Amy Whitehead alone ...

(iii) Completion with Amy Whitehead of "Children's PTSD Inventory" ...

(iv) Completion by Amy alone of Beck Depression Inventory II ... and The Self Image Profile for Adolescents ...

(v) I have also had sight of the following documentation: Precognitions x 4 from Amy and her mother ..."

This narrative leaves it a little ambiguous as to whether the precognitions formed any part of the basis for the report. From the extensive discussion of the results of the various tests and the interview material, it would appear that little reliance was placed on the content of the precognitions (which are nowhere quoted). However, there is a short passing reference to Miss Whitehead's recall of the accident being very much in line with that noted at precognition.

[6 ] It is worthy of remark that the defenders have lodged a report from their own road traffic expert, R B Newbury, who is also based in England. This too contains a declaration, including:

"9.9 I understand this report will be the evidence I will give under oath, subject to any correction or qualification I may make before swearing to its veracity."

Mr Newbury bases much of what he says on a "statement" from the first defender; that statement also probably being in the nature of a precognition. The "statement" reveals that the first defender was aware of a child disembarking from the school bus as he approached it at between 45 and 50 mph. He "eased off the accelerator", thus slowing to between 35 and 40 mph. When the bus moved off, he saw the child in the middle of the road. He braked and veered to the left, but struck her at a point half way between the central road markings and the on-side verge. Mr Newbury qualifies his findings by expressly acknowledging that a divergence between the first defender's "statement" and his evidence may result in a revision of his analysis.

3. The Application and Submissions

[7 ] The defenders moved for a commission and diligence to recover the "Documentation reviewed" by Mr Parkin as noted above and the " precognitions" of the pursuer and Miss Whitehead referred to by Dr Edward. The essential contention of the defenders is that they are entitled to recover this material because it has been referred to in the reports lodged and relied upon by the experts. The defenders were entitled to the documents in order to test the conclusions reached by the experts in their reports. It was accepted that the court will not ordinarily order the recovery of documents which: (i) are privileged; (ii) can not legitimately be used for some purpose at the proof; (iii) disclose information passing between agent and client; (iv) are prepared in contemplation of litigation; and (v) are in the nature of precognitions. The latter were privileged because they fell into the categories already described. They could not be used either as evidence of a prior inconsistent statement or as a substitute for the oral testimony of the person precognosced, as they would contain material filtered through the mind of the precognoscer. Nevertheless, there were four bases for the application.

[8 ] First, in terms of Rule of Court 27.1.(1), a party is obliged to lodge in process any document founded on by him in his pleadings or adopted as incorporated therein. The reports here had formed the basis for the averments and therefore ought to have been lodged. Secondly, it was the duty of an expert to disclose all sources of his information so that the court and the other party could test his evidence (Davie v Magistrates of Edinburgh 1953 SC 34, LP (Cooper) at 40; Dingley v Chief Constable, Strathclyde Police 1998 SC 548, LP (Rodger) at 555; Wilkinson: The Scottish Law of Evidence pp 65-66; McTear v Imperial Tobacco 2005 2 SC 1, Lord Nimmo Smith at paras 5.9-11, 5.17 approving the dicta of Cresswell J in National Justice Compania Naviera v Prudential Assurance Co (The Ikarian Reefer) [1993] 2 Ll LR 68 at 81). In order to prepare for the proof, the defenders required to have the material upon which the expert opinions were based. The experts had complied with their duty to disclose the documents upon which they relied but had not annexed that material to their reports.

[9 ] Thirdly, by revealing part of the content of the documents, the pursuer had waived any privilege attaching to them (Clavering v McCunn (1881) 19 SLR 139, LP (Inglis) at 140; Wylie v Wylie 1967 SLT (notes) 9). Where privileged material was given to an expert and the expert had relied upon it, privilege was waived upon disclosure of the report (Clough v Tameside & Glossop Health Authority [1998] 1 WLR 1478; Dunlop Slazenger International v Joe Bloggs Sports, unreported, [2003] EWCA Civ 901; Waller LJ at para 15; Lucas v Barking, Havering and Redbridge Hospitals NHS Trust [2004] 1 WLR 220, Waller LJ at paras 18-19). Fourthly, although the precognitions could not be put to the witnesses who had given them, they could be put to the experts to see if their conclusions were merited upon the material they had been given. The Compensation Form was not a precognition and could be put to the pursuer (Dorona v Caldwell 1981 SLT (notes) 91, Lord Ross at 92; Highland Venison Marketing v Allwild 1992 SLT 1127). The disclosure of this material was consistent with the modern trend towards "front loading" preparation. If parties did not wish to reveal their precognitions, they should not send them to their expert but instead prepare a memorial of fact for that expert. This would not cause any material inconvenience and might produce more focus in the instruction of experts.

[10 ] The pursuer opposed the motion. The documents involved were privileged and not recoverable. If it were otherwise, there would require to be a considerable change in the practice of agents. The reports were not evidence. The lodging of the reports was to provide fair notice of the evidence to the other party; that is to say that, if the facts established in evidence reflected the information given to the expert, the line of the expert evidence would be likely to reflect the conclusions given in the reports. Evidence is what is given orally by experts in court and not what is in a report, itself containing hypotheses. These hypotheses may, or may not, be established. The situation here is quite different from that in Davie v Magistrates of Edinburgh (supra), where the content of a scientific pamphlet was being relied upon (see generally Walker and Walker: The Law of Evidence (2^nd ed) paras. 16.3.6, 16.3.12-13).

[11 ] First, Rule 27.1.(1) was not in point. That dealt with documents upon which a party was founding (see MacPhail: Sheriff Court Practice (2^nd ed.) para 15.47; Parliament House Book Vol II, annotations at C205). The reports were not mentioned in the pleadings. They might be used at the proof, but they were not documents upon which the action was based. Secondly, so far as the duties of an expert are concerned, there was no obligation on an expert to produce the documentation upon which he had relied in a report. The practice in England as regards disclosure of material is quite different (see generally Barrie: Personal Injury Law (2^nd ed.) para 41.01; Civil Procedure Rules 31.2, 31.6). The approach to experts in England is also different. There were rules in that jurisdiction to reduce and control the perceived dangers of partisan expert testimony and excessive volume of expert evidence (Barrie (supra) para 42.05-6). An expert report in England was addressed to the court (Barrie (supra) para 42.20). In Scotland there was no equivalent and no rule requiring disclosure. The dicta in McTear v Imperial Tobacco (supra) dealt with the weight to be accorded to the oral testimony of experts. The mere reference by an expert to a document did not carry with it an absolute entitlement to its production.

[12 ] Thirdly, there was no element of waiver. In a case such as this, the expert might just have listed the documents, rather than quoted from them. That would not entitle the other party to recover them. If no expert report were produced, a reference by the expert in the witness box to his having had sight of precognitions would equally not entitle such recovery. Even in England there were rules on this (CPR 35.10(4)(b)), whereby specific documents were not recoverable unless there were grounds to suppose that the instructions given to the expert had been inaccurate or incomplete. That was not being said here. The law in Scotland had long regarded the confidentiality of the solicitor/client relationship as important, as it did the rule protecting documents prepared in contemplation of litigation. (Dickson: Evidence Vol II para 1663; Anderson v St Andrew's Ambulance Association 1942 SC 555, LP (Normand) at 557; Johnstone v National Coal Board 1968 SC 128, LP (Clyde) at 133; More v Brown & Root Wimpey Highland Fabricators 1983 SLT 669; Hepburn v Scottish Power 1997 SC 80, Lord McCluskey at 85; Micosta v Shetland Islands Council 1983 SLT 483, LP (Emslie) at 485; Teece v Ayrshire & Arran Health Board 1989 SLT 512, Lord Cameron at 513). The interests of justice and fairness required that the privilege attached to such documents should not easily be regarded as impliedly waived. The circumstances here did not amount to such waiver (see generally McSporran & Young: Commission & Diligence para 5.20; Stair Memorial Encyclopaedia : Stewart: "Evidence" Re-issue Vol 6 paras 204-207; see also Duke of Argyll v Duchess of Argyll 1962 SC (HL) 88, Lord Guest at 98; Barclay v Morris 1997 SC 74). Fourthly, it was accepted that the Court would not order the recovery of documents which could not legitimately be used at a proof. Even if the precognitions were not privileged, they could not be so used. The situations in Wylie v Wylie (supra) and Clavering v McCunn (supra) regarding correspondence were different. Precognitions were not capable of establishing anything in court and could not be put to witnesses. What was really involved here was a fishing exercise intended to recover the full precognitions of the pursuer and her witnesses. In relation to the Compensation Form, the passages quoted were the totality of the description of the accident, but the form contained answers to some forty questions dealing with aspects of the case unrelated to its merits or quantum of damage.

4. Decision

[13 ] The lodging of an expert report has no special significance. It is not necessary to do so. An expert may give his testimony from the witness box without reference to his report at all. He may do so with reference to his report even although it may not have been formally lodged. The two main practical purposes of lodging a report are first to provide the other side with greater notice of the evidence to be adduced, thus perhaps reducing the risk of any successful objection based upon lack of averment. Secondly, it may assist a party in adducing the evidence of his expert if that expert has his report to hand and is taken through it in easily digestible sections. However, the report is not a substitute for the expert's evidence in chief, as it may be in other jurisdictions. It does not normally become part of his sworn testimony. In this regard, the undertakings, given by both road traffic experts in relation to the reports becoming their evidence under oath or affirmation, display an apparent misunderstanding of the nature of their evidence as it will be taken in Scotland. Indeed, there is even scope for an opponent successfully objecting to the evidence in chief of an expert if its nature becomes leading by constant reference to a pre-prepared printed page.

[14 ] Because the report itself is not evidence, there is no absolute entitlement to material which may have been used in the formulation of its conclusions. Of course, if the report reveals that there is real or other evidence which has, or may have, a bearing on the case and the other party has hitherto been unaware of that evidence, that party may well be able to recover it by commission and diligence. If it reveals the existence of witnesses, the party may seek to take precognitions from them. But the mere fact that a report discloses the existence of written material, and perhaps even quotes it, does not, of itself, result in the normal rules for the recovery of such material being altered.

[15 ] Rule 27.(1).1 has no bearing on the issue raised in this case. That rule requires the lodging of any document founded upon, by incorporation or quotation, in a party's pleadings. The rule does no more than re-iterate what has been a requirement for many years. If a document is the subject of averment, because proof of that document is a necessary, or at least a desirable, element in the case, then it requires to be lodged in process. Thus, if a case is founded upon a document, such as a contract, will or other writing, then that document has to be lodged in process. That is not the case here. Proof of the expert reports is not a requirement in the case, even if evidence from an expert may be a crucial aspect at a proof. Proof of the existence of the reports adds nothing to the pursuer's case. The reports are, quite correctly, not even mentioned in the pleadings. In short, then, the terms of the rule provide no requirement for production.

[16 ] Although I am in no position to express any view on civil practice and procedure in England, it would appear relatively clear that there may be major differences between the English provisions and the equivalent practice and procedure in Scotland. The rules on disclosure seem to be different; there being no general obligation of disclosure in Scottish civil procedure. The rules on experts may not be the same either, since it would appear that in England there are clearly defined duties owed by experts to the court. Furthermore, the rules of evidence are different and a report may take on a status in England that it does not have in Scotland. For example, in Scotland, it does not become the evidence in chief of the witness or otherwise serve as a substitute for oral testimony. Because of these differences, references to English practice and procedure are not of any material assistance in determining the issue here.

[17 ] It is not at all clear that an expert, instructed by one party, has some form of duty to the court greater than any professional or other witness. There is no reason to suppose that, in producing a report for a party on the instructions of agents, an expert thereby imposes upon himself a duty to the court, at least where he is unaware that the court might be asked to rely upon his report in advance of his testimony. Of course, once he is sworn, he must abide by the terms of his oath. However, when he is in the witness box, what he is permitted and not permitted to say will depend not just on what he is asked but on what he is not asked. He is not in a position to volunteer information. If an expert's testimony is to be accepted, a party may have to lay a proper foundation for the opinion ultimately delivered, but that is for that party to do. It cannot be achieved by the expert in isolation.

[18 ] When the Lord President (Cooper) expressed the view that the duty of the expert is to furnish the court with the necessary criteria for testing the accuracy of his conclusion (Davie v Magistrates of Edinburgh (supra) at p 40), he was presupposing that expert had an opportunity to do so. He was also talking in the context of the assessment of the weight to be given to opinion evidence. If it is mere assertion ("ipse dixit"), "it will normally carry little weight". But that will depend upon the circumstances, such as whether the assertion is challenged and, if so, in what manner. Although the duties set out by Cresswell J in The Ikerian Reeper (supra at 81) may be of assistance when looking at an expert's testimony in court and, in particular, when comparing it with the testimony of other experts, it is difficult to extend the duties much beyond the witness box in the Scottish context. When Lord Rodger was talking of the court "testing" expert evidence in Dingley v Chief Constable, Strathclyde Police (supra at 555), he was doing so in the context of the court having heard oral, and competing, testimony from experts at a proof. When such evidence has been given, the court will have to analyse, and in that sense "test", the evidence which has been given. But the court itself cannot otherwise "test" the evidence, such as by probing it with questions or using other forensic skills. That is not part of the court's proper function in an adversarial system.

[19 ] A party is entitled to test an expert's testimony given in court. He may do so in a number of ways. One obvious way is to undermine the factual basis upon which the expert has formed his views. Thus, where, as here, an expert has set out the factual base by reference to the content of statements or other similar material, the opposing party may attempt to demonstrate that the factual base given to him was wrong. That base, or a material part of it, may not ultimately be established in evidence. If it is not, the expert evidence may be at risk of rejection for that reason. Even if the expert is able to reformulate his views based upon the evidence given in court, his new conclusion may be regarded as tainted by the views he formed earlier based on the erroneous information. What would appear to be of peripheral value at best would be an attempt by a challenging party to maintain that, whatever his evidence in court, the expert's conclusion in his report was wrong upon the information he was provided with at that time, even although that information is itself ultimately proved to have been wrong. The court should be slow to encourage such a convoluted line of cross examination. In short, the task which the defenders here state they seek to embark upon would appear to be of very limited value indeed. That leads at least to a suspicion that what is really being indulged in is a fishing exercise to discover the content of the precognitions for wider reasons.

[20 ] It has long been the practice for experts to be asked to report, orally or in writing, by being sent the record, the precognitions and other relevant material in the case. The expert will set out what he understands to be the facts, or range of possible facts, based upon what he has been provided with. The subsequent revelation of his report to the opposing party is, as already noted, done in part with a view to giving that party notice that if a given set of facts is proved then the line of opinion is likely to be that in the report. In this case, there can hardly be a complaint of lack of fair notice where the reports are lodged with a detailed account of the factual bases for the conclusions reached. The disclosure of the reports is not done with a view to permitting the opposing party unlimited access to all of the material, which would normally be regarded as privileged, forming the basis of the expert's understanding of the facts. In that state of current Scottish practice, a party cannot be taken to have waived his rights of confidentiality or privilege merely by disclosing the existence, or even some of the content, of these documents to his own expert and later intimating a report from that expert which makes mention of them. In this regard the case is quite different from the situation where a party seeks to found upon part of a document, or series of documents, as an element of his proof. In that event, the other party is entitled to disclosure of, and to use, the other parts of the document or series. In the situation here, the pursuer does not, and cannot legitimately, found upon the content of the precognitions.

[21 ] Reference to the content of precognitions is generally not permitted at a proof or jury trial. That is not just because the content is privileged but because it is regarded as an unsafe measure of what a person is alleged to have said. It is naturally tainted by the filtering process. In that situation, it cannot be put to the person precognosced. It would be a somewhat strange if, nevertheless, a party were allowed to adduce evidence of it for the very limited purpose of demonstrating that an expert misunderstood or mis-stated the content of the precognitions in framing his report. In a jury trial, it would be extremely difficult, and probably impossible, for the judge to give the jury the necessary clear directions on that limited use. The only reasonable course to adopt in the course of a proof or jury trial would be to follow the normal practice and to exclude reference to the content of precognitions entirely. The Compensation Form is in a slightly different position, because it has not been filtered. However, I was advised that there had in fact been disclosure of the whole of that part of the form containing the statement relative to the accident. It was not suggested that this advice might be inaccurate. In these circumstances, given the nature of the remaining content of the Form, I would not have been inclined to grant a commission and diligence in the terms sought, especially in the absence of an excerpting provision.

[22 ] For all of these reasons the motion for a commission and diligence is refused. I should add that, had I decided otherwise, the practice of instructing experts may well have had to undergo significant change. Law agents would have to decide whether to send the precognitions to an expert in the knowledge that they may be required to disclose them. Instead, they might have to compose a summary of the facts from their precognitions. It is not immediately obvious that such a double filtering process would advance the interests of justice in personal injuries litigation.