Potential Conflicts of Interest

Bristol County Court (Recorder Moxon-Browne QC) 26th January 2007 TEDR Volume 12 Issue 1

The Facts

The appellant appealed against a case management decision giving him permission to rely on an expert’s report subject to the disclosure to the defendants of an earlier report from a different expert.

The claimant had been injured by an exploding firework manufactured and sold by the First Defendant.

Before the proceedings were issued, the claimant had engaged a fireworks expert to provide a report and informed the First Defendant that he was doing so. C gave an undertaking that any testing on the remains of the firework would be non-destructive.

Upon receiving the expert report, the claimant decided (without giving any reason) not to rely upon it. Accordingly he did not disclose or serve the expert report or otherwise disseminate the views of that expert.

After the commencement of proceedings, the claimant obtained permission to rely on a report by another expert, but subject to a condition imposed by the district judge, that the initial expert report be provided to the First Defendant. The claimant did not want to do this and argued that (1) the initial expert report was legally privileged and that he as the claimant had the right pre-action “to shop” unhindered for expert advice and ought not to be concerned about the prospect of having to disclose it. The claimant contended that that right was only restricted after the proceedings had been commenced and the court had taken the step of giving directions on those expert witnesses it would permit to be called and relied upon; (2) the judicial right to give permission conditional on disclosure of a pre-existing report only applied to cases where a party needed permission to rely on a new expert “in place of” a previous expert.

The Issues

The appellant appealed against a case management decision giving him permission to rely on an expert’s report subject to the disclosure to the defendants of an earlier report from a different expert.

The claimant had been injured by an exploding firework manufactured and sold by the First Defendant.

Before the proceedings were issued, the claimant had engaged a fireworks expert to provide a report and informed the First Defendant that he was doing so. C gave an undertaking that any testing on the remains of the firework would be non-destructive.

Upon receiving the expert report, the claimant decided (without giving any reason) not to rely upon it. Accordingly he did not disclose or serve the expert report or otherwise disseminate the views of that expert.

The Decision

The disclosure of an previous expert report could be a condition of permission to rely on a later report by the same or another expert if required by “fairness and justice”; but if no such permission was sought, the court did not have any power to override the privilege in the earlier report,

In particular, however, where an expert had been instructed to perform tests on an exhibit, “open justice” and “fairness” would generally require that the results of those tests should be put before the other experts and the court – whether or not the author was in due course called to give evidence. This was particularly so where there could have been some, even minor, alteration to the exhibit – albeit short of the exhibit being destroyed. This would normally require disclosure of the report in question being made. This was an additional reason to order disclosure in this case.

In this case it was unfair for the nature and detail of the tests and the effect on the remains of the firework to be known only to the claimant and this gave rise to a perception of a potential injustice. (2) There was no justifiable distinction between unidentified experts’ reports obtained pre-action and those obtained with the court’s permission after it had started.

Comment

The Court has correctly emphasised previous judicial disapproval of “expert shopping”. It also shows the sensible power of the court to make a party pay the price of seeking permission to rely on another expert. The distinction between conduct pre-action and during the course of proceedings was seen as artificial and untenable.

This case also highlights the importance of making a clear distinction between an expert being engaged to investigate and advise and an expert being appointed with a view to providing expert evidence at some later date.

Here, of course, tests conducted might affect the physical evidence and so, as the judge made clear, “open justice” would be likely to require disclosure whatever distinction were to be made. Investigation and opinion by an expert adviser who does nothing which might interfere with the physical evidence relating to the dispute and who was not engaged in with a view to providing expert evidence later in the litigation, would, however, remain privileged – and it is most unlikely that the Court could demand disclosure as the so-called price for the party using another expert witness for the litigation.