Disclosure of an Expert’s report obtained during the pre-action protocol period
During the pre-action protocol period in a personal injury action the Claimant had nominated three experts upon which he sought to rely. One of those experts was instructed but the Claimant did not wish to place any reliance upon his report. Accordingly, the Claimant wished to place reliance on a further expert in the same discipline but not one that had been proposed pre-action. When proceedings were issued, the Particulars of Claim were served with the report of the second expert. The Claimant was required to seek permission from the Court to place reliance upon the second expert. The Defendant sought disclosure of the report of the first expert as a condition precedent of permission being given. Pursuant to the CPR if a report is disclosed within proceedings any party is be entitled to use it. Overall the Court considered whether such a conditional order could be made.
Can it be a condition of permission for an expert’s report that a previous report be disclosed?
Overall, the Court considered that such a conditional order could be made. Previous case law suggested that such an order could be made where a report had been obtained post proceedings but this case considered the pre-action period. There is, however still a distinction with a report that is obtained purely for the purposes of a party being advised by an expert prior to the pre-action protocol period being engaged. Overall, whilst the Court cannot force disclosure, what the Court is doing with such a conditional order is making it a condition that either the Claimant waive privilege to the original report (which remains privileged to him) in order to secure permission for a further report or the Claimant does not waive privilege and matters rest there.
Whilst there are interesting legal issues which arise to do with privilege, the point for experts to bear in mind arising out of this case is that an expert should be careful to clarify what he or she is being asked to do. Is he or she being asked to advise for the purposes of the pre-proceedings stage or is it a report to be used in Court? That makes a difference not only as to whether the report can remain privileged regardless of this case but also is important as to whether the CPR and the Part 35 duties of experts apply.